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Vol. 11 - Issue 3

June 15, 2022


Policyholder Exploding Head Decision


There are some coverage decisions that policyholder counsel believe are so wrongly decided that their heads explode while reading them.  It is hereby ordered that the insurer’s motion to dismiss is granted.  Kaboom! 

The California Court of Appeal’s decision in Ghukasian v. Aegis Security Ins. Co., No. B311310 (Cal. Ct. App. April 14, 2022) is one of these.

The facts are simple.  Maryam Ghukasian hired contractors to clear trees and level land that she believed to be part of her property in Glendale, California.  But it turned out that the land was owned by her neighbors, Vrej and George Aintablian.

The Aintablians sued Ghukasian for trespass and negligence, alleging that Ghukasian and her contractor “entered upon [the neighbors’] [p]roperty without [the neighbors’] consent,” “made deep cuts . . . into a natural hill on [the neighbors’ property],” “caused a natural swale located on [neighbors’ property] to be filled with dirt[,]” which :prevented the flow of water in and through the swale,” and “removed, cut down and carried off timber, trees, and underwood from [the neighbors’ property].”

Ghukasian sought coverage for the suit from her homeowner’s policy with Aegis. 

The trial court agreed with Aegis, that no coverage was owed, because the underlying action did not allege an “occurrence.”  As the trial court put it, Ghukasian’s “mistaken belief as to the boundaries of the property does not transform her intentional act [of hiring contractors to clear and level land] into an accident for the purposes of being covered as an ‘occurrence’ under the Policy.” 

The California Court of Appeal, looking at other mistaken boundary line coverage cases, agreed: “[I]t is undisputed Ghukasian specifically instructed her contractor to level certain land and cut trees, which is exactly what was done. Ghukaskian’s mistaken belief about the boundaries of her property is irrelevant to determining whether the conduct itself—leveling land and cutting trees—was intentional.”

As policyholder counsel will no doubt see it, Ghukasian is wrongfully decided because an intentional act should be an accident, so long as the insured did not intend to cause injury.

“Intent to act” versus “intent to cause injury” has long been a fundamental issue at the heart of “what is an accident” cases. 

One policyholder counsel, in a very animated and incredulous fashion, once explained the issue to me this way: If intent to act makes conduct non-accidental, even if there was no intent to cause injury, then it must not be an accident when a driver backs out of a parking spot and hits another car or causes a crash while changing lanes.  In both cases, the driver thought that he or she could perform these functions safely.  That this was a mistaken belief did not make their conduct accidental?            

To the guy who once explained “intent to act” versus “intent to cause injury” this way, I hope for his head’s sake that he doesn’t read this case




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