A court recently held that a concessioner’s insurance policy did not cover the concessioner’s costs of defending against a lawsuit brought by adjacent property owners alleging that the concessioner had violated their usage and/or ownership interests in a roadway that provided access to both their properties. The concessioner had an insurance policy that applied to damages caused by occurrences such as accidents. The concessioner argued that it was unaware of the fact that the adjacent property owners had this property interest. Therefore, it asserted, its subsequent alleged violation of this interest constituted an accident for purposes of the policy.
The concessioner cited to prior case law where an insurer was required to cover costs associated with a similar trespass claim. However, the court rejected this case law and focused on the fact that the concessioner’s conduct was intentional. The court noted that the concessioner’s error as to the adjacent landowner’s property interest did not constitute an accident.
The insurance policy also covered any damages the concessioner had to pay for invasion of the right of private occupancy of premises. The concessioner argued that its alleged trespass was therefore covered. However, the court held that the concessioner was accused of violating an easement held by the adjacent landowners. Therefore, its conduct did not constitute an invasion of the right to an enforceable possessory interest in the land, which was required to meet the standard under the policy.