The Appeals Court of Massachusetts ruled that an insurance company had the duty to defend its insured in a wrongful entry action in Dilbert v. Hanover Ins. Co., 04-P-156, 2005 WL 949585 (Mass. App. Ct. Apr. 27, 2005).

 

Susan Dilbert and Seth Kilgore (plaintiffs) purchased a condominium from Ellen Remsen. The parking space was not conveyed with the unit. Remsen executed the unit deed, which conveyed the space and the condo together. In a separate agreement, the plaintiffs sold the space to Remsen. She had the right, for one year and with the option to extend for another year, to sell the space to a third party. She rented the space to another resident and did not sell it within two years.

 

After the two years ended, the plaintiffs believed that Remsen no longer had any claim to the space and began using it themselves. Remsen, however, disagreed and demanded that they stop using the space. Remsen brought action against them when they failed to comply. She claimed that she retained equitable title to the space and sought damages for, among other things, wrongful entry.

 

The plaintiffs tendered defense of the action to their homeowners insurer, Hanover. Hanover denied their claim. Plaintiffs settled with Remsen and then brought action against Hanover.

 

The court noted that a policy endorsement modified the policy's definition of “bodily injury” to include “wrongful entry,” which was not defined in the policy. Hanover argued that wrongful entry is a cause of action found only in landlord-tenant law, and thus not alleged in Remsen's complaint. The court said that a claim for trespass would be enough to trigger the duty to defend and showed that wrongful entry is synonymous with trespass under Massachusetts law. The court also said that the cause of action was not restricted to landlord-tenant law.

 

In her complaint, Remsen alleged that she was in possession of the parking space when the plaintiffs parked their car there. Hanover said that the complaint did not allege trespass because Remsen was not in actual possession of the space. The court, though, said that physical occupation at the time of the trespass is not a requirement for possession, but “the court looks to the possessor of the parking space at the time of the alleged wrongful entry.” The court said that Remsen had constructive possession and plaintiffs did not have actual possession of the space upon entering it.

 

The lower court said that the wrongful entry was not an occurrence because the act was intentional and not an accident. However, the appeals court pointed out that the policy endorsement provided coverage for claims that are generally considered intentional torts, including wrongful entry. The form, the court said, made no distinction between intentional and unintentional forms of wrongful entry. Thus, the court concluded that “a limiting construction of the 'occurrence' requirement must give way in favor of coverage.” The court ruled that Hanover had a duty to defend the plaintiffs.