Mr. Neighbor claims that Ms. Insured put up a gate on her own property that blocks Neighbor’s use of an easement to get to his lot.  Does that allegation give rise to a duty to defend under the insured’s umbrella liability policy?  There is no property damage or bodily injury, so the only possible coverage would be personal injury coverage for invasion of the right of private occupancy. 

For 18 years, the rule in California has been that a claim for invasion of the right of private occupancy is only covered if it involves physical occupation or trespass.  That holding was from a California Court of Appeal opinion, Sterling Builders, Inc. v. United Nations Insurance Co. (2000) 79 Cal.App.4th 105.  Under Sterling Builders, Mr. Neighbor’s allegation would not trigger a duty to defend because putting up a gate on your own land is not a physical invasion of anyone’s property.

In May 2018, another California Court of Appeal case disagreed.  Albert v. Truck Insurance Exchange (2018) 23 Cal.App.5th 367, held that the insurance company’s duty to defend was triggered by a non-physical invasion of a right in real property – e.g., Ms. Insured’s installation of a gate on her own land over the easement that Mr. Neighbor had used to get to his property. 

There is no apparent way to reconcile these two opinions.  In Albert, the court goes into detail to explain why it thinks Sterling Builders got it wrong.  And for now at least, both Sterling Builders and Albert are part of California law.  So when Mr. Neighbor makes a claim that Ms. Insured’s gate, or noise, or anything else, interferes with Neighbor’s quiet use of his property, make sure to consider both Albert and Sterling Builders before making a coverage determination.