The Third Circuit affirmed the district court's finding that the insured contractor was entitled to a defense despite the underlying allegations of intentional trespass. Westminster Am. Ins. Co. v. Spruce 1530, LLC, 2021 U.S. App. LEXIS 24822 (3d. Cir. Aug. 19, 2021).      In the underlying case, the state court found that Spruce 1530 constructed part of an apartment building (the Newport) on another developer's property (the Touraine). The court determined the property line between the Touraine Building and the Newport Building and found that construction on the Newport Building encroached in the property line. The court found that Spruce 1530 was negligent in determining the location of the property line before beginning construction.     In a second lawsuit filed in state court, it was alleged the Spruce 1530 violated the property line eight additional times. Touraine alleged each encroachment was an intentional trespass that violated Touraine's demand that Spruce 1530 "cease any and all unlawful forms of trespass onto the Touraine Property."     Spruce 1530 tendered defense of the lawsuit to its carrier, Westminister. The tender was denied based upon the alleged intentional acts. The district court held that Wesminister had a duty to defend.     On appeal, Westminister agrued there was no "occurrence" because Spruce 1530 refused to remove the additional encroachments after the property line was resolved in the first underlying suit. Nevertheless, there was a possibility that the encroachments resulted from Spruce 1530's negligence with respect to the property line as opposed to an intentional trespass. A reasonable facfinder could determine the encroachments were a result of Spruce 1530's negligent failure to determine the site of the property line.     Therefore, Westminister had a duty to defend the entire underlying action. The decision of the district court was affirmed. 

from Insurance Law Hawaii https://ift.tt/2XOlCHe