Partington sought coverage under its commercial general liability policy it had with Nautilus. However, Nautilus denied the coverage on three grounds: "(1) the complaint did not allege property damage or bodily injury arising from an 'occurrence'; (2) the complaint alleges that Partington intentionally damaged the Blowers' property; and (3) the policy excludes coverage for damages arising from the movement of soil,'" according to an order filed Friday in U.S. District Court for the District of Massachusetts.

In the present matter before Judge Donald L. Cabell, Partington sought declaratory judgment that the policy covers the claims in the underlying litigation, as well as an order requiring the insurance company to defend it and pay its incurred legal fees. On the contrary, Nautilus argued that Partington willfully removed the trees without authorization, thus precluding a finding that the builder had accidentally violated the statute, among other claims, the order said.

Cabell disagreed with the insurance company, however, noting that the allegations in the underlying complaint only accuse Partington of cutting down the trees without authorization. The complaint never suggests that Partington definitively knew or should have known it did not have a license to cut the trees, Cabell wrote.

"This allegation describes equally well the tortfeasor who knows he has no right to remove the trees as well as the tortfeasor who mistakenly believes he has permission to remove them. The latter case would be an 'occurrence' because the tree-cutter who believes he has permission to cut trees is not substantially certain that cutting those trees will injure the property owner," Cabell wrote. "In the court's view, the allegations here are broad enough to reasonably sketch a claim that Partington had a mistaken but reasonable belief that it was authorized to cut the trees. Such a claim would be for property damage arising out of an occurrence, meaning it would be a 'loss [that] fits the expectation of protective insurance reasonably generated by the terms of the policy,' thus triggering Nautilus's duty to defend."

Additionally, Cabell said, under the tree-cutting statute, a plaintiff does not need to "specifically request treble damages or assert that a defendant did not have a good reason to believe he was authorized to cut the trees in order to recover treble damages."

The judge rejected Nautilus's reliance on the 2014 Massachusetts Court of Appeals case Pacific Indem. Co. v. Lampro for the proposition that "it is not an 'accident' when a contractor hired to remove some trees fails to follow directions and cuts more trees than requested." In Lampro, the Massachusetts Appellate Court held in 2014 that, "'in the landscaping trade, 'the possibility that unintended trees may be cut is clearly a normal, foreseeable, an expected incident of doing business,' and is not a 'fortuitous event for which liability insurance is designed,'" the order cited.

"The situation here is meaningfully different, though. No one alleges that Partington was authorized to cut some of the trees on the Blowers property but not others. The allegation is that Partington was never authorized to cut any trees at all," Cabell wrote. "Thus, this is not a case, as in Lampro, where a contractor simply exceeded the scope of work it was already hired and authorized to perform. Whatever its instructive value, Lampro does not mandate a finding here that the tree cutting on the Blowers' property was not an accident."

At the hearing on the motion in the present case, the parties agreed that it would be premature for the court to make a finding on Nautilus' purported duty to indemnify at this stage, as the existence of that duty to indemnify at this stage, as the existence of that duty will turn on the determination of the facts in the underlying action, the order said.

"I don't think any material arguments went unaddressed, and every point made by the court came across to me as essentially indisputable. As far as the ultimate findings: they were consistent with the weight of authority. Of course, I hope to moot the coverage issue by winning the underlying case," Jonas A. Jacobson, a Boston-based solo practitioner representing Partington told Law.com.

Michael F. Aylward, a partner at Morrison Mahoney in Boston, who represents Nautilus, did not immediately respond to a message seeking comment.

Editor's Note: In this case, the issue of whether or not the cutting of trees was an accident that would be covered under the policy or not is important in determining duty to defend. The tree-cutting statute at issue does not mention accidents, only willful action and reasonable yet mistaken beliefs. Nautilus said that, since the underlying suit alleges willful (non-accidental) violation of the statute, the duty to defend cannot apply. However, the underlying complaint did not claim Partington knew or should have known it did not have permission to cut down the trees, only that it violated the statute in doing so. The court said an accident, for purposes of this case, "includes an intentional act that is not meant or substantially certain to cause harm." Therefore, even if Partington did intentionally cut down the trees, the company's good-faith but mistaken belief they had permission to do so keeps the act in the realm of an "accident" that triggers the insurer's duty to defend.

Read More: 

Duty to Defend Separated from Duty to Indemnify

Until the Last Gavel Falls

Duty to Defend