KAZI v. Gary S. Smolker, Objector and Appellant.

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

Zubair M. KAZI et al., Plaintiffs and Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY et al., Defendants and Respondents; Kerns & Gradillas et al., Movants and Respondents; Gary S. Smolker, Objector and Appellant.

No. B089804.

Decided: March 29, 1999

Law Offices of Smolker & Graham, Alice M. Graham and Gary S. Smolker, Marina Del Rey, in pro. per., and for Plaintiffs and Appellants and for Objector and Appellant. Robie & Matthai, Michael J. O'Neill, Pamela E. Dunn, Gabrielle M. Jackson and Natalie A. Kouyoumdjian, Los Angeles, for Defendant and Respondent State Farm Fire and Casualty Company;  Horvitz & Levy, Barry R. Levy, Mitchell C. Tilner, Encino, and Cotkin & Collins, Joan M. Dolinsky and Terry C. Leuin, Los Angeles, for Defendants and Respondents Truck Insurance Exchange and Farmers Insurance Exchange. Peter F. Riley, New York, N.Y., for Movant and Respondent Kerns & Gradillas. No appearance for Movant and Respondent Alida Vasquez.

INTRODUCTION

Plaintiffs and appellants Zubair M. Kazi and Khatija Kazi appeal from a judgment after nonsuit in favor of defendants and respondents State Farm Fire and Casualty Company (State Farm), Truck Insurance Exchange (Truck), and Farmers Insurance Exchange (Farmers).   The trial court found that there was no potential for coverage under the Kazis' various insurance policies, which provided property damage and personal injury coverage, which would impose a duty to defend the Kazis in an underlying lawsuit.   We conclude that the trial court erred in finding that the underlying complaint, alleging interference with the use of an easement and trespass, failed to establish a potential for coverage and thus a duty to defend under the policies, which limited coverage to property damage to “tangible property.”   In addition, we conclude that the trial court erred in finding the underlying complaint did not give rise to a potential for coverage and a duty to defend under the Truck umbrella policy's personal injury coverage provisions.   However, the trial court correctly found no potential for coverage under the State Farm umbrella policy's personal injury coverage provisions.

Plaintiffs also contend that the trial court erred in granting judgment on the pleadings on their causes of action sounding in negligence.   We disagree and affirm the trial court's order granting judgment on the pleadings.

Finally, the attorney for plaintiffs, appellant Gary S. Smolker, appeals from an order imposing a monetary sanction against him in favor of respondents Kerns & Gradillas and Alida Vasquez.   In the unpublished portion of this opinion, we affirm the order awarding monetary sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

The Tollakson Complaint

The Kazis were the owners of undeveloped real property located in Studio City. C. David Tollakson and Lynn L. Tollakson (“the Tollaksons”) owned the adjoining property.   After the Kazis began construction on their property, a dispute arose in which the Tollaksons complained that the Kazis were interfering with the Tollaksons' access to their property.1

The Tollaksons filed a complaint against the Kazis on May 16, 1990, for declaratory and injunctive relief, quiet title, trespass and ejectment.   In their complaint, the Tollaksons alleged that the Kazis' property, referred to as Parcel A, and the Tollaksons' property, referred to as Parcel B, share a common “Boundary Line.”   When the Tollaksons were considering purchasing Parcel B from the State of California Santa Monica Mountains Conservancy, they received a booklet which stated that “ ‘[b]oth Parcel A and Parcel B are served by a common driveway ․’ and contained a topographical map of Parcels A and B ․ showing the common driveway as straddling the Boundary Line.”   The Tollaksons stated on information and belief that before purchasing Parcel A the Kazis received the booklet describing the common driveway.   The booklet also referred to “Certificates of Compliance with conditions of approval.”   Allegedly, one such condition was:  “ ‘Improve driveway to Parcels A and B with a minimum paved width of 20 feet.’ ”   However, as alleged by the Tollaksons, when the Conservancy conveyed its interests in Parcels A and B, the deeds failed to convey any express easements for the common driveway.

In the complaint, the Tollaksons referred to a “common driveway easement,” described as follows:  an implied easement upon Parcel A for a common driveway, for ingress, egress, and a right of way over and across Parcel A, parallel to the Boundary Line and for a width of not less than 10 feet, and an implied easement upon Parcel B for a common driveway, for ingress, egress, and a right of way over and across Parcel B, parallel to the Boundary Line and for a width of not less than 10 feet.   The complaint also made reference to the “Disputed Property,” consisting of “a portion of Parcel A, parallel to the Boundary Line and for a width of not less than ten feet.”

The Tollaksons alleged that after November 4, 1986, the Kazis commenced grading and construction on Parcel A, and since that time denied the existence of an easement on Parcel A for a common driveway straddling the Boundary Line and serving both parcels.   They alleged that Parcel B is not otherwise buildable, or approved for development, in the absence of such common driveway, there not being sufficient room otherwise for approved access to the building pad.   The Tollaksons sought by their first cause of action for declaratory and injunctive relief a declaration “that defendants [the Kazis] and each of them are violating plaintiffs' rights, making Parcel B unbuildable, and effectively ousting plaintiffs of use and possession of Parcel B and that portion of Parcel A over which there exists a driveway easement in favor of Parcel B, all as a result of the grading and construction on Parcel A.”

In their second cause of action, the Tollaksons sought to quiet title “generally to Parcels A and B and specifically to the Disputed Property with respect to the Common Driveway Easement in dispute.”   They alleged that “defendants have no such right, title, estate, lien, or interest in the Disputed Property or any part of it, that contravenes the Common Driveway Easement rights of plaintiffs.”

In their third cause of action for trespass, the Tollaksons alleged that the Kazis “constructed a driveway on the Disputed Property, which encroaches and trespasses on plaintiffs' Common Driveway Easement, precluding any use whatsoever of the Common Driveway Easement and Parcel B by plaintiffs․ Plaintiffs are informed and believe, and upon such basis allege, that said encroachment and trespass covers all or a portion of the Disputed Property, an area of not less than approximately 1,380 square feet, and the entirety of the Common Driveway Easement.”   The Tollaksons alleged that they had lost “the use of the land so encroached and Parcel B,” in the rental amount of not less than $4,000 per month, and that the value of Parcel B had been diminished by not less than $400,000.

In their fourth cause of action for ejectment, the Tollaksons alleged that “[w]ithin three years last past,” the Kazis “entered onto the Disputed Property and plaintiffs' Common Driveway Easement and ousted plaintiffs from peaceful use and possession of the same,” resulting in damage to the Tollaksons in excess of $4,000 per month.

The Insurance Policies

The Kazis were insured under a Farmers E-Z-Reader Car Policy that included a “Comprehensive Personal Liability Insurance” endorsement, effective from May 26, 1990, to March 23, 1991.   The policy stated:  “We pay those damages which an insured becomes legally obligated to pay because of bodily injury or property damage resulting from an occurrence to which this coverage applies.  [¶] At our expense and with attorneys of our choice, we defend an insured against any covered claim or suit.” 2  “Occurrence means a sudden event, including continuous or repeated exposure to the same conditions resulting in bodily injury or property damage neither expected nor intended by the insured.”   The policy further stated:  “[P]roperty damage means physical injury to or destruction of tangible property, including loss of its use.”

The Kazis were also insured under a Truck Personal Umbrella Policy, effective from March 23, 1990, to March 23, 1991.   The policy stated:  “We will pay damages on your behalf, subject to the exclusions.”   The policy defined “damages” to include “reasonable expenses that you incur in the investigation, defense and settlement of a claim or suit because of personal injury or property damage covered by this policy․”   It further stated:  “If underlying insurance does not cover personal injury or property damage covered by this policy, we:  1. Defend you against a claim or suit for damages.   We may investigate and settle a claim or suit we feel is appropriate.”   The policy stated:  “Personal injury means:  ․ injury arising out of:  ․ wrongful entry or eviction, or other invasion of the right of a person's right of private occupancy․ Property damage means damage to or loss of use of tangible property.”   The policy contained an amendatory endorsement which stated:  “It is agreed that the definition of ‘Occurrence’ in this policy is amended to read as follows.  [¶] ‘Occurrence’ means an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result in personal injury, or property damage liability during the policy period.   All such exposure to substantially the same general conditions existing at or emanated from one premises location shall be deemed one occurrence.”

State Farm issued to the Kazis a homeowners policy, effective from November 24, 1987, to November 24, 1990.   The policy provided:  “If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:  1. pay up to our limit of liability for the damages for which the insured is legally liable;  and 2. provide a defense at our expense by counsel of our choice.   We may make any investigation and settle any claim or suit that we decide is appropriate.”   The policy defined “occurrence” as “an accident, including exposure to conditions, which results in:  ․ property damage during the policy period.   Repeated or continuous exposure to the same general conditions is considered to be one occurrence.”  “ ‘[P]roperty damage’ means physical damage to or destruction of tangible property, including loss of use of this property.”

State Farm also issued to the Kazis a Personal Liability Umbrella Policy, with effective dates of May 20, 1989, through May 20, 1992.   This policy stated:  “If you are legally obligated to pay damages for a loss, we will pay your net loss minus the retained limit․ When the claim or suit is covered by this policy, but not covered by any other policy available to you:  (1) we will defend the suit against you․”  “ ‘[L]oss' means an accident that results in personal injury or property damage during the policy period.”   “ ‘[P]roperty damage’ means physical injury to or destruction of tangible property.   This includes the loss of use caused by the injury or destruction.”   The policy also includes coverage for “personal injury,” defined as including “wrongful eviction” and “wrongful detention.”

The Tenders of Defense

A. Farmers and Truck

By letter dated August 7, 1990, the Kazis' attorney informed their insurance agent of the pending Tollakson action, and requested that the agent “give notice and tender defense of this lawsuit to the appropriate insurance carrier(s).”   The letter referenced “Farmers Ins Exch Policy CPL 12844 47 40, et al.”

By letter dated October 9, 1990, a Farmers representative acknowledged receipt of the August 7, 1990, letter.   The representative stated, “We cannot confirm, at this time, that we will accept tender of the defense.  [¶] We will, of course, investigate this loss and investigate all of Mr. Kazi's insurance policies.  [¶] I will continue to update you and will advise you on coverage as soon as possible.”

A representative of Farmers and Truck notified the Kazis' attorney on January 7, 1991, that the insurers would accept defense of the Tollakson action subject to a reservation of rights.   On July 30, 1991, the insurers notified the Kazis of their conclusion that they had no duty to defend or indemnify the Kazis with regard to the Tollakson lawsuit.

B. State Farm

By letter dated August 8, 1990, the Kazis' attorney tendered defense of the Tollakson lawsuit to State Farm.   A State Farm representative responded by letter dated August 17, 1990, acknowledging receipt of the August 8 letter, and advising that the matter was under consideration.   The letter stated:  “Based on our review of the information that you have provided, we have reservations as to coverage for the following reasons:  1. There is a question whether there was a policy of insurance in effect for this insured at this location on this date of loss. 2.   There is a question whether this loss arises from bodily injury or property damage as defined in the policy. 3.   There is a question whether this loss arises from an occurrence as defined in the policy.”   State Farm also reserved the right to raise other coverage issues.   A representative of State Farm again wrote to the Kazis' attorney on August 31, 1990, stating “[t]he dispute and damages claimed in the underlying litigation would appear to predate our policy,” and asking for information regarding the date the encroachment and trespass first occurred.   The State Farm representative further stated that the damages sought by the Tollaksons “do not appear to be the type insured.”   An attorney retained by State Farm wrote to the Kazis' attorney on November 19, 1990, stating, “In order to finalize our analysis regarding whether the claims at issue in this case are covered, we must first be informed of the date on which the excavation commenced.”

On November 30, 1990, the Kazis settled the lawsuit with the Tollaksons.   The Kazis' attorney notified State Farm in January 1991 that the Tollakson lawsuit had been settled.   On May 13, 1991, State Farm offered to reimburse the Kazis for a portion of their defense costs and expenses, and ultimately paid approximately $22,500 to the Kazis.

Initiation of the Present Lawsuit

The Kazis filed the present lawsuit against State Farm, Truck, Farmers, and other insurers on September 25, 1991.   The complaint contained causes of action against State Farm, Truck, and Farmers for breach of contract, breach of the duty of good faith and fair dealing, and negligent handling of plaintiffs' claim.   State Farm, Truck, and Farmers filed answers to plaintiffs' complaint, asserting by way of affirmative defenses that they had no duty to defend or indemnify the Kazis with regard to the Tollakson lawsuit.   In addition, Truck and Farmers filed a cross-complaint against the Kazis for declaratory relief, in which they sought a declaration that they had no duty to defend the Kazis in the Tollakson lawsuit, that their policies did not provide coverage for the claims asserted by the Tollaksons, and that they had no duty to indemnify the Kazis for costs related to the Tollakson suit.   The Kazis filed an answer to the cross-complaint.

Truck and Farmers successfully moved for judgment on the pleadings as to the Kazis' cause of action for negligence stated against them.   State Farm thereafter filed a motion for summary adjudication as to the cause of action for negligence stated against it.   The trial court ruled that its prior order granting judgment on the pleadings and the ensuing judgment, entered June 9, 1993, disposed of all causes of action for negligence, including the one stated against State Farm, rendering moot State Farm's motion for summary adjudication.

The Arbitration

 The trial court ordered the matter to arbitration.   At the conclusion of a 10-day hearing, the arbitrator found that the insurers did not have any duty to defend or indemnify the Kazis in connection with the Tollakson claim.   The Kazis requested a trial de novo.3

The Severance and Trial of the Issue of the Duty to Defend, and the Granting of Nonsuit

On June 15, 1994, the insurers moved to sever and try first the issue of their duty to defend the Kazis with regard to the Tollakson lawsuit.   After hearing argument, the trial court granted the motions and denied the Kazis' request for a jury trial on the issue of the duty to defend.

After the Kazis presented their case, the insurers moved for nonsuit.   The trial court granted the motion for nonsuit, finding that the insurers had no duty to defend the Kazis in the Tollakson action because there was no potential coverage under any of the policies for personal injury or property damage.4  Accordingly, the trial court found no breach of contract, and no breach of the implied covenant of good faith and fair dealing.   The trial court filed its statement of decision on November 7, 1994.   Plaintiffs filed a notice of appeal on January 4, 1995.

DISCUSSION

I. Duty to Defend

 “Insurance policies are contracts.   As such, they are interpreted in the first instance by the rules of construction applicable to contracts.   Under standard rules of contract interpretation, the mutual intent of the parties at the time the contract was formed governs its construction.  (Civ.Code, § 1636.)   So far as possible, we must infer that intent solely from the written provisions of the contract.  (Id., § 1639.)”  (Borg v. Transamerica Ins. Co. (1996) 47 Cal.App.4th 448, 456, 54 Cal.Rptr.2d 811.)   Ambiguous language in an insurance policy is construed against the insurer and in favor of coverage.  “On the other hand, where the express provisions of an insurance contract are unambiguous, the ‘clear and explicit’ meaning of those provisions, interpreted in their ‘ordinary and popular sense,’ controls judicial interpretation, unless ‘used by the parties in a technical sense, or unless a special meaning is given to them by usage․ ’ ” (Ibid., citations omitted.)   We are not bound by the trial court's interpretation of the policy language, but must make our own independent interpretation.  (Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1118, 44 Cal.Rptr.2d 272.)

“[W]hen a suit against an insured alleges a claim that potentially or even possibly could subject the insured to liability for covered damages, an insurer must defend unless and until the insurer can demonstrate, by reference to undisputed facts, that the claim cannot be covered.  ‘To prevail, the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential.   In other words, the insured need only show that the underlying claim may fall within policy coverage;  the insurer must prove it cannot․’  (Montrose [Chemical Corp. v. Superior Court (1993) ] 6 Cal.4th [287], 300, 24 Cal.Rptr.2d 467, 861 P.2d 1153․)   A duty to defend does not exist only when the underlying complaint ‘ “․ can by no conceivable theory raise a single issue which could bring it within the policy coverage.” ’  [Citations.]   For this reason, where there is any doubt as to whether the duty to defend exists, the doubt must be resolved in favor of the insured and against the insurer.  [Citations.]”  (Borg v. Transamerica Ins. Co., supra, 47 Cal.App.4th at p. 455, 54 Cal.Rptr.2d 811, italics omitted in original.)

A. Property Damage Coverage

As previously stated, the Tollakson complaint made reference to a “common driveway easement,” described as an implied easement for a common driveway upon Parcels A and B, parallel to the Boundary Line and for a width of not less than 10 feet on Parcel A and 10 feet on Parcel B.   The complaint also made separate reference to the “Disputed Property,” described as “a portion of Parcel A, parallel to the Boundary Line and for a width of not less than ten feet.”   While the Tollaksons sought declaratory and injunctive relief and to quiet title with regard to the “Disputed Property,” i.e., the easement on Parcel A, they alleged in their third cause of action a trespass and encroachment “cover[ing] all or a portion of the Disputed Property, ․ and the entirety of the Common Driveway Easement,” defined as including the 10 feet running parallel to the Boundary Line on Parcel B, the Tollakson's parcel.  (Italics added.)   As a result of such trespass and encroachment, the Tollaksons alleged they had lost “the use of the land so encroached and Parcel B,” in the rental amount of not less than $4,000 per month, and the value of Parcel B has been diminished by not less than $400,000.

Thus, contrary to the trial court's interpretation of the Tollakson complaint, and the interpretation urged by the insurers on appeal, the complaint must indeed be read as alleging that the Kazis had graded and trespassed upon the Tollaksons' parcel, as well as upon the land subject to the claimed easement on the Kazis' parcel.

Each of the insurance policies at issue here provided coverage for “property damage.”   The issue we must decide is whether allegations in the Tollakson complaint that the insured Kazis graded and paved a driveway on property subject to a claimed easement and property owned by the Tollaksons constitute claims which gave rise to potential coverage under the “property damage” provisions in each policy, thus obligating the insurers to provide a defense to the Kazis in the underlying lawsuit.   We conclude that the trial court erred in granting nonsuit in favor of each of the insurers and finding as a matter of law that none of the insurance policies gave rise to a duty to defend the Kazis in the Tollakson lawsuit.   For reasons we will explain, we hold that the insureds' grading and paving a driveway on property which third parties claim is subject to an easement in their favor constitutes property damage to tangible property under each of the policies involved here, obligating the insurers to defend the suit brought by the third parties against the insureds.   As noted above, we also find that the Tollakson complaint against the insureds may be read to allege damage to Parcel B, owned in fee simple by the Tollaksons, and on this basis also gave rise to a duty to defend under respondents' insurance policies.

All of the insurance policies under consideration limited their coverage for “property damage” to “tangible property.”   The insurers contend on appeal, and the trial court agreed, that they had no duty to defend the Kazis because, as asserted by State Farm, “[t]he Tollakson complaint did not allege any damage to tangible property, but only alleged an interference with an intangible property right-an implied easement.”   As stated by Farmers, “[t]he Farmers policy afforded no coverage for liability arising from the Kazis' interference with the Tollaksons' intangible right [to a 10-foot easement across the Kazis' parcel].”

The insurers primarily rely on the case of Gunderson v. Fire Ins. Exchange, supra, 37 Cal.App.4th 1106, 44 Cal.Rptr.2d 272, which they contend is similar to the present case.   In Gunderson, the insureds appealed from the granting of summary judgment in favor of their insurer, contending there were triable issues of material fact concerning the insurer's duty to defend in the underlying lawsuit on the basis of a potential for coverage under the policy.   In the underlying lawsuit, the insured's neighbor, Ferrando, filed a complaint to quiet title and for declaratory and injunctive relief, alleging that the insured's claim to hold an easement of right-of-way across Ferrando's property was without merit.   Ferrando sought declaratory relief to quiet title to the alleged right-of-way in fee simple, and to permanently enjoin the insureds from asserting or exercising any claim to an easement.   Ferrando did not pray for damages or allege that the property had been physically injured in any way.   (Id. at pp. 1110, 1115, 44 Cal.Rptr.2d 272.)

On appeal, the Gunderson court upheld the grant of summary judgment, concluding that no duty to defend existed because the definition of “property damage” in the policy at issue did not provide coverage for the claims made in the underlying Ferrando action.   The court stated:  “The Ferrando lawsuit alleged only nonphysical injuries from the appellants' assertion of adverse claims to the easement, including depreciation of the value of Ferrando's property.   Ferrando sought solely to quiet title in the property and enjoin appellants from using the easement.   Understood in its plain and ordinary sense, ‘tangible property’ means property (as real estate) having physical substance apparent to the senses.   To construe the explicit words ‘tangible property’ to include intangible economic interests and property rights requires a strained and farfetched interpretation, doing violence to the plain language of the policies.   Such an interpretation would rewrite the policies to fasten on the insurers a liability they have not assumed․ Thus, pure rights in property, such as those claimed to have been lost by Ferrando in her underlying complaint, are by definition not the kind of physical damage or injury to tangible property necessary to trigger coverage under the Policy provisions.”  (Id. at p. 1119, 44 Cal.Rptr.2d 272, internal quotations and citations omitted.)   The respondent insurers rely on this language to assert that a claimed easement does not constitute “tangible property” within the meaning of their policies.   We disagree.

In Gunderson, the “intangible economic interests and property rights” claimed by Ferrando in her complaint did not include the right to an easement.   It was only the insureds who claimed a right to an easement, which Ferrando denied existed.   The “pure rights in property” claimed to have been lost by Ferrando in her complaint were to hold her property in fee simple, free of any easement, and to be free of the insured's use of her property which she claimed caused her property to depreciate.   It was these rights, and not the right to the use and enjoyment of an easement, which the Gunderson court pronounced to be “intangible economic interests and property rights” and not within the definition of “tangible property.”   It is important to note that, in addition, the court found that in her complaint Ferrando only alleged nonphysical injuries, and did not allege any physical injury to or destruction of her property, as was required to trigger coverage by the definition of “property damage” in the subject policy.  (Id. at pp. 1117-1119, 44 Cal.Rptr.2d 272.)

Other cases which have discussed insurance policy language indicating that property damage coverage is limited to damage to tangible property primarily have been concerned with third party claims of wholly economic losses.   “[S]trictly economic losses like lost profits, loss of goodwill, loss of the anticipated benefit of a bargain, and loss of an investment, do not constitute damage or injury to tangible property covered by a comprehensive general liability policy [citations].   A complaint seeking to recover damages of this nature from an insured falls within the scope of the insurance coverage only where these intangible economic losses provide ‘a measure of damages to physical property which is within the policy's coverage.’  [Citations.]”  (Giddings v. Industrial Indemnity Co. (1980) 112 Cal.App.3d 213, 219, 169 Cal.Rptr. 278.)

 While the policies at issue here contain differing language, they all have in common within their basic scope of liability coverage claims arising out of property damage to tangible property.5  The Tollakson complaint clearly alleged property damage by describing the grading and paving done by the Kazis to tangible property, the common driveway easement.   The fact that the Tollaksons claimed a right to complain about property damage done to Parcel A, the Kazis' parcel, based on the existence of an easement, does not make the physical land involved any less tangible.   Undeniably, the Tollakson claim arose out of alleged physical damage or injury to and loss of use of land.

 Indeed, under the Truck umbrella policy's definition of property damage (“damage to or loss of use of tangible property”), physical damage or injury was not required;  an allegation of mere loss of use of property constitutes covered property damage.  (See Borg v. Transamerica Ins. Co., supra, 47 Cal.App.4th at pp. 456-457, 54 Cal.Rptr.2d 811 [policy defining “property damage” as “ ‘physical injury to, destruction of, or loss of use of tangible property’ ” held to give rise to duty to defend based on allegations of damages for loss of use of tangible property].)  Under the other three policies under consideration here, actual physical injury to property was required.  (See id. at p. 457, fn. 2, 54 Cal.Rptr.2d 811, discussing Gunderson v. Fire Ins. Exchange, supra, 37 Cal.App.4th at pp. 1117-1119, 44 Cal.Rptr.2d 272 [referring to insuring language similar to wording used in Farmers and State Farm policies, court concluded:  “In context, the phrase ‘including loss of its use’ refers to the loss of use of tangible property that suffers some physical injury or destruction.”  (Gunderson at p. 1119, 44 Cal.Rptr.2d 272, italics added.) ].)

 According to State Farm, “an easement has no physical substance apparent to the senses:  one cannot touch, taste, see, smell or hear an easement.   It is not a tangible thing, but rather, an intangible, incorporeal legal right.   It is not an estate in land, but only a non-possessory right of use.  (5 Miller & Star, California Real Estate Law (2d ed.   1989) Easements, secs. 15:1 and 15:5, pp. 389-403, emphasis added.)”   However, the cited text does not use the term “intangible” in defining easements.   Rather, it states that “[a]n easement is an incorporeal interest in the land of another that gives its owner the right to use the land of another or to prevent the property owner from using his land.”  (5 Miller & Star, California Real Estate Law (2d ed.   1989) Easements, § 15:1 at p. 389, italics in original;  see also § 15:5 at pp. 400-401.)   As to the use of the word “incorporeal” to define easements, “[t]he authorities sometimes use the word ‘incorporeal’ to describe the nonpossessory character of easements.   Frequently, easements are described as ‘incorporeal hereditaments.’   In this context, the word ‘incorporeal’ is synonymous with ‘nonpossessory,’ and the words ‘incorporeal hereditament’ mean nothing more than a nonpossessory interest in real property that is capable of being inherited.”  (Cal. Real Estate Law and Practice (1998) Ownership & Management, Easements & Licenses, vol. 10, § 343.10[2], at pp. 343-7 to 343-9, citations within footnotes omitted.) 6  Thus, while easements are properly described as “incorporeal,” that term when used in relation to easements is not synonymous with the term “intangible.”   In any event, to the extent that rights to easements are at times referred to as “intangible” rights, we conclude that such a concept is not the same as the concept referred to in insurance policies providing coverage for property damage to “tangible property.”   One may not be able to see, hear, smell or touch a “right,” but one can pave over land subject to an easement-which can be seen and touched-and thereby damage the land and render it unusable.

 The argument made by Farmers and Truck that grading and paving land cannot be said to be damage, but rather can only be considered to be an improvement to land, does not withstand scrutiny.   The Kazis' act of paving the driveway in such a way as to render the land impassable and unusable to the Tollaksons constituted physical injury or damage, just as if the Kazis had dug a hole or erected a fence across the land.   The case relied upon by respondents, American Internat. Bank v. Fidelity & Deposit Co. (1996) 49 Cal.App.4th 1558, 1572, 57 Cal.Rptr.2d 567, is distinguishable.   The retaining wall referred to there as an improvement “render[ed] [property] amenable to construction,” in no way hampering the use of property, and thus could not be said to have damaged the property.   Here, the grading and paving of the Kazis' driveway rendered Parcel A buildable, but made the Tollaksons' property entirely unbuildable.

 It was alleged in the underlying complaint that, as a result of the Kazis' grading and paving the driveway in the manner they did, the Tollaksons lost “the use of the land so encroached and Parcel B,” in the rental amount of not less than $4,000 per month, and the value of Parcel B had been diminished by not less than $400,000.   These claims for economic losses, for loss of use and diminution in value of property, merely provided the measure of the damage or injury done to the physical property, which damage fell within each policy's coverage.  (See Giddings v. Industrial Indemnity Co., supra, 112 Cal.App.3d at p. 219, 169 Cal.Rptr. 278.)   In other words, these economic losses were the alleged result of the property damage, not the property damage itself.   The Tollakson complaint sought recovery of economic losses which represented the measure of the damage done to the physical property and necessarily fell within the scope of coverage.

 Furthermore, the Tollakson complaint alleged that the Kazis had “constructed a driveway on the Disputed Property, which encroaches and trespasses on plaintiffs' Common Driveway Easement, precluding any use whatsoever of the Common Driveway Easement and Parcel B by plaintiffs.”   While the “Disputed Property” referred to the land subject to the claimed easement on the Kazis' Parcel A, “Common Driveway Easement” referred to the land subject to the claimed easement on both Parcels A and B.   It would be entirely redundant if the terms “Disputed Property” and “Common Driveway Easement” both referred to the same property, i.e., the land subject to the easement on Parcel A only.   The complaint specifically describes “Common Driveway Easement” as consisting of a 10 foot strip of land running parallel to the shared boundary line, on both Parcels A and B.   The “Disputed Property” refers only to the 10 foot strip on Parcel A.   Therefore, by alleging that the encroachment and trespass by the Kazis “cover[ed] all or a portion of the Disputed Property ․ and the entirety of the Common Driveway Easement,” the Tollakson complaint alleged property damage to the Tollaksons' land, Parcel B, giving rise to potential coverage under all of the insurance policies at issue here and requiring the insurers to defend the Kazis in the Tollakson lawsuit.   While the Tollakson complaint is not a paradigm of clarity, “[a] duty to defend arises so long as the facts give rise to a potentially covered claim;  and any uncertainty as to the facts must be resolved in the insured's favor.”  (Croskey et al., Cal. Prac. Guide:  Insurance Litigation, supra, § 7:524, p. 7B-7, italics in original.)   Whatever its deficiencies, the Tollaksons' pleadings stated facts sufficient to demonstrate the Kazis had damaged their possessory and nonpossessory interests in their real property.

During the court trial, portions of the deposition testimony of Mr. Tollakson and the Tollakson's attorney in the lawsuit against the Kazis, Mr. Karp, were read into the record.   Respondents contend that this testimony supports their assertion that the Tollakson complaint did not allege tangible property damage for physical trespass by the Kazis onto the Tollaksons' Parcel B.   The trial court agreed with the insurers, noting in its statement of decision:  “The statements in evidence from Mr. Tollakson and Mr. Karp, through introduction of their deposition testimony, make it clear the Tollaksons only asserted those claims and only sought that relief which is outlined in the complaint:  redress of the issue of the implied easement appurtenant to the Kazis' parcel, an intangible property right.”   We find to the contrary that the deposition testimony, read in its entirety, reveals that the Tollaksons' complaint alleges physical damage to the Tollaksons' Parcel B, as well as interference with their right to use a portion of Parcel A as a driveway.

Mr. Tollakson confirmed that prior to May 1988 he had seen the Kazis' grading on his property “a minimum of three feet,” and as of the time they filed their complaint in May 1990 the encroachment still existed.   The portions of Mr. Tollakson's deposition testimony cited by respondents simply do not support their contention that he intended to and instructed Mr. Karp only to sue for lack of use of the claimed easement on the Kazis' property, and did not allege physical damage to Parcel B.

Similarly, Mr. Karp's statement quoted by respondents to the effect that “we're only claiming an easement here” is taken out of context.   When read in its entirety, Mr. Karp's testimony is that he intended to and did allege in the complaint all of the facts of which he was aware.  “I tend to allege as close to what I believe to be the facts as possible, and I wrote this complaint that way.”   He was aware of the physical incursion onto the Tollaksons' property.   “Q. Now, by grading in the context we're speaking, you mean physically cutting the earth?   A. Earth movement.   Q. Earth movement.   And that includes, without exaggeration, destruction, right?   Moving something so it's not like it used to be?   A. Yes.   They had to-as I recall it, they were required to lower the level of the surface of the ground by several feet and to change its grade;  that is, its degree off of horizontal so that the contour of the property was not at the end it was at the beginning, and they did cut into the mountain.”   When asked during deposition, “You don't recall that you were looking for that kind of compensation?”   Mr. Karp responded:  “I know that we were not looking for compensation for personal injuries either to the person of the Tollaksons or their egos or their emotions, that we were not claiming emotional distress damages.   We're not claiming any physical touches of their person.   This is injury to property, okay․   Injury to property, right, to be specific.”   Counsel responded, “Okay.   To use rights.”   Mr. Karp replied in a speculative fashion, “Well, to the extent that we're only claiming an easement here, it could be -it could only be use rights.”  (Italics added.)   Taken as a whole, Mr. Karp's testimony does not demonstrate that he intended not to include in the complaint he drafted any allegations of physical trespass onto the Tollaksons' property.   As stated previously, the complaint on its face demonstrates to the contrary.

 In their respondents' brief, Farmers and Truck cursorily make another argument, without citation of any authority, as follows:  “[T]he Farmers policy limited coverage to property damage resulting from an ‘occurrence.’   An event qualified as an ‘occurrence’ only if the resulting property damage was ‘neither expected nor intended by the insured.’[ ]  The Kazis intended to grade the access road and thus, under their reasoning, intended to ‘injure’ their property.   If, as the Kazis argue, the Tollaksons were seeking damages because of the grading, the policy afforded no coverage because the grading was not an ‘occurrence.’ ”   Respondents stated:  “In addition, the policy expressly excluded coverage for property damage ‘caused intentionally by or at the direction of an insured.’  (3 Supp. C.T. p. 4094, boldface omitted.)”  (Italics in original.)   We find no merit in this argument.   The fact that the Kazis intentionally graded the access road does not mean that they intended or expected to cause the property damage which the Tollaksons alleged occurred:  loss of use of their property due to the physical damage done by the grading.

B. Exclusion for Property Owned by an Insured

 State Farm argues on appeal that there was no potential for coverage because any damage was to the Kazis' own property, which is expressly and unambiguously excluded.   The relevant exclusion in the State Farm primary policy states that the personal liability coverage “does not apply to ․ property damage to property owned by any insured.”   Similarly, the State Farm umbrella policy states, “[w]e will not provide insurance ․ for property damage to ․ your own property.” 7

These exclusions do not serve to relieve State Farm of its defense obligation because, as explained above, the Tollakson complaint alleged property damage to the Tollakson's property, Parcel B.

In addition, the Tollakson complaint alleged property damage to Parcel A, which was held in fee title by the Kazis.   However, the complaint alleged in effect that the Tollaksons held a property interest in the same land by way of an implied easement, which property interest was violated when a driveway was constructed on that land in an injurious manner.   Thus, the alleged property damage was done to property, the easement, owned by the Tollaksons.  “An easement is real property.”  (Corea v. Higuera (1908) 153 Cal. 451, 454, 95 P. 882;  see also Roth v. Cottrell (1952) 112 Cal.App.2d 621, 625, 246 P.2d 958 [action for obstruction of and hindrance in the use of an easement which gave plaintiffs access to their property held to be governed by Code of Civil Procedure section 338, former subdivision 2, which applied to actions for injury to real property;  “An easement appurtenant to real property has been declared to be real property [citation], and an interest in real property [citation].”].)  On this basis, as well, the exclusion relied on by State Farm does not defeat the potential for coverage.

C. Personal Injury Coverage

The Kazis also argue that the respondent insurers had a duty to defend under both of the umbrella policies, which provided coverage for “personal injury.”   Although we have already determined that all of the insurers had a duty to defend the Kazis under the property damage coverage provisions of their respective policies, we discuss the personal injury coverage provisions of the umbrella policies for the guidance of the trial court on remand.

“In the world of liability insurance, personal injury coverage applies to injury which arises out of the commission of certain enumerated acts or offenses.  [Citations.]   Coverage thus is triggered by the offense, not the injury or damage which a plaintiff suffers.”  (Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 511, 20 Cal.Rptr.2d 376.)   “ ‘[T]he term “personal” is used in a highly specialized sense.   It does not mean physical damage to a person;  rather it means injury arising out of one or more specified offenses.’  (3 Cal. Insurance Law & Practice (Bender ed.1988) § [49.403], p. 49-69.)”  (Fragomeno v. Insurance Co. of the West (1989) 207 Cal.App.3d 822, 832, 255 Cal.Rptr. 111 [dis. opn. of Johnson, J.].) “To the extent the listed offenses are framed in generic terms, they should be construed broadly to encompass all specific torts which reasonably could fall within the general category.”  (Fibreboard Corp. v. Hartford Accident & Indemnity Co., supra, 16 Cal.App.4th at p. 515, 20 Cal.Rptr.2d 376.)

 We begin by discussing the language in the Truck umbrella policy.   It provided coverage for “personal injury,” defined as “injury arising out of:  ․ wrongful entry or eviction, or other invasion of the right of a person's right of private occupancy.”   As Truck concedes, citing Fibreboard Corp. v. Hartford Accident & Indemnity Co., supra, 16 Cal.App.4th 492, 512, 20 Cal.Rptr.2d 376, a “wrongful entry” can describe a trespass.  (See also Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1125, 47 Cal.Rptr.2d 670 [“ ‘Wrongful entry’ includes trespass claims, even if those claims do not involve an intent to dispossess.”  “ ‘[W]rongful entry,’ in the context of torts relating to the invasion of an interest in real property, includes trespass and may include nuisance, and ․ a reasonable insured would so understand the coverage.   We also find that ‘other invasion of the right of private occupancy’ is ambiguous, since it is susceptible to more than one interpretation.  [Citation.]   When construed, as it must be, in favor of the insured, the phrase may include nuisance claims․”  (Id. at pp. 1131-1132, 47 Cal.Rptr.2d 670.) ].)  As we made plain in our discussion of the property damage coverage, and contrary to Truck's contention, the Tollakson complaint did allege the Kazis wrongfully entered or trespassed upon the Tollaksons' parcel.

Truck argues further that the damages alleged by the Tollaksons did not result from an “occurrence” because the Kazis' grading occurred prior to the inception of the Truck policy and thus did not constitute “an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result[ed] in personal injury, or property damage liability during the policy period.”

 However, the policy language here does not require that the occurrence itself must take place during the policy period.   Instead, what must take place during the policy period is “personal injury” resulting from the occurrence.  (See Borg v. Transamerica Ins. Co., supra, 47 Cal.App.4th 448, 456, 54 Cal.Rptr.2d 811 [discussing property damage coverage;  policy there defined “occurrence” as “ ‘an accident,’ including exposure to conditions, which results, during the policy period, in ․ property damage”].   See also Croskey et al., Cal. Prac. Guide:  Insurance Litigation, supra, §§ 7:43.1-7:43.2, p. 7A-13.)   Here, there was “a continuous or repeated exposure to conditions” which “resulted in personal injury,” i.e., wrongful entry or trespass, “during the policy period.”   The Tollakson complaint, alleging that the Kazis “constructed a driveway ․ which encroaches and trespasses [present tense] on plaintiffs' Common Driveway Easement,” may be construed as stating that the Kazis continued to trespass on the Tollaksons' land at the time the complaint was filed and after the inception of the Truck policy.   Mr. Tollakson's deposition testimony confirmed that the encroachment onto his property continued through the time of filing his complaint in May 1990.   Thus, the trial court erred in finding that there was no potential for coverage under the Truck umbrella policy's personal injury coverage.   Similarly, to give rise to potential coverage under the property damage provision of the Truck umbrella policy, there simply had to be an “occurrence” which unexpectedly and unintentionally resulted in property damage during the policy period.   The Truck policy defined property damage to include loss of use of property.   The Tollakson complaint clearly alleged an occurrence, i.e., grading of the common driveway easement, which resulted in loss of use of the Tollaksons' property continuing up to the time of filing their complaint.

 The language in the State Farm umbrella policy compels a different conclusion.   It does not include within the definition of “personal injury,” “wrongful entry,” or “other invasions of a person's right of private occupancy,” as did the Truck policy.   Instead, the State Farm policy stated in relevant part:  “ ‘personal injury’ means:  ․ false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation;  [and] libel, slander, defamation of character or invasion of rights of privacy.” 8  Plaintiffs note that the State Farm policy covers “wrongful eviction” and “wrongful detention,” and that the Tollakson complaint alleged trespass and ejectment due to physical changes to the land which ousted the Tollaksons from their property.

 State Farm contends that a “wrongful eviction” occurs only in the context of a landlord-tenant relationship.   We agree.   As used in the law and in common parlance, an “eviction” strongly connotes removal of a tenant from leased premises.   The case law seemingly invariably uses the term “eviction” in such a context.  (See, e.g., Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal.App.4th 1472, 1484, 42 Cal.Rptr.2d 101 [“An eviction is the actual or constructive dispossession of a tenant from leased premises by the landlord or one acting under his authority.”].)  Black's Law Dictionary (6th ed.1990) at page 555 defines “eviction” as “[d]ispossession by process of law;  the act of depriving a person of the possession of land or rental property which he has held or leased.   Act of turning a tenant out of possession, either by re-entry or legal proceedings, such as an action of ejectment.   Deprivation of lessee of possession of premises or disturbance of lessee in beneficial enjoyment so as to cause tenant to abandon the premises (the latter being constructive eviction).  [Citation.]”   Similarly, Webster's Ninth New Collegiate Dictionary (1989) at page 430 defines “evict” as “1 a:  to recover (property) from a person by legal process b:  to put (a tenant) out by legal process 2:  to force out:  EXPEL syn see EJECT.”   Although Webster's secondary definition for “evict” is “to force out,” we find that the term “ eviction,” which Webster's does not separately define, fundamentally carries with it the connotation of the forcing out of a tenant in possession.   We conclude that a reasonable insured would so understand the coverage as referring to wrongful eviction in a landlord-tenant context only.   Thus, the Tollakson complaint did not give rise to a potential for coverage under the State Farm umbrella policy's personal injury coverage.9

II. Bad Faith

Having concluded that respondents had a duty to defend appellants in the Tollakson action, it follows that on remand appellants may pursue their claim for breach of the implied covenant of good faith and fair dealing.

III. Negligent Handling of the Insured's Claim

 As previously stated, the respondents successfully moved for judgment on the pleadings as to the Kazis' cause of action for negligence.   In their complaint, the Kazis alleged that they had “attempted in good faith to process a claim for benefits due under their [State Farm, Truck and Farmers] policies,” by requesting that the insurers accept defense of the Tollakson action, become involved in attempting to settle the action, and reimburse plaintiffs' for their defense expenses.   On this premise the Kazis contend that the insurers negligently caused them to engage private counsel.   These allegations simply do not state a cause of action for negligence.   The court did not err in granting judgment on the pleadings and dismissing the negligence causes of action, as we shall explain.

The crux of appellants' negligence allegations is that respondents failed to carry out the promises they made in the contracts of insurance to defend appellants in a third party action, i.e., that they breached their respective contracts.   Although there are occasions in which a contract may create an interest protected by the law of torts, and a breach of the contract may give rise to a cause of action sounding in tort (see 3 Witkin, Cal. Procedure (4th ed.   1996) Actions, § 140, p. 205), the case before us does not present such an occasion.10

As expressed by the court in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514-515, 28 Cal.Rptr.2d 475, 869 P.2d 454:  “Contract and tort are different branches of law.   Contract law exists to enforce legally binding agreements between parties;  tort law is designed to vindicate social policy.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683, 254 Cal.Rptr. 211, 765 P.2d 373․)   We have described the essential difference between contract and tort law as follows:  As Professor Prosser has explained:  [Whereas] [c]ontract actions are created to protect the interest in having promises performed, [t]ort actions are created to protect the interest in freedom from various kinds of harm.   The duties of conduct which give rise to them are imposed by law, and are based primarily on social policy, and not necessarily based upon the will or intention of the parties․  [Citation.]  [¶] Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law.   The law imposes the obligation that every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights.  (Sec.1708, Civ.Code.)   This duty is independent of the contract․ [A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.  [Citation.]”  (Internal quotation marks omitted.)

 California courts have established an exception to the general rule that actions for breach of the covenant of good faith and fair dealing only allow recovery for contract damages;  in the insurance context, breach of the implied covenant provides the basis for an action in tort.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683-684, 254 Cal.Rptr. 211, 765 P.2d 373.)   Thus, tort damages are available to an insured who establishes a breach of the implied covenant of good faith and fair dealing by an insurer which fails to perform its duties under the contract.   In addition to actions for breach of the implied covenant, insureds have been permitted to maintain actions for extracontractual liability, under circumstances where the insurer is alleged to have failed to perform a separate legal duty.  (See generally 3 Witkin, Cal. Procedure, supra, Actions, § 142, at pp. 209-211, and cases cited therein, e.g., Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173 [wrongful failure to settle].   See also Croskey et al., Cal. Prac. Guide:  Insurance Litigation, supra, §§ 11:7-11:9, p. 11-2 [“When supported by appropriate facts, an insurer's mishandling of a claim or its refusing to settle or defend a claim against its insured may also be actionable under one or more of the following alternative tort theories:  [¶] Fraud ․;   Negligent Misrepresentation ․;   Intentional Infliction of Emotional Distress ․;   Negligent Infliction of Emotional Distress ․;   Intentional Interference With Contract or Prospective Economic Advantage ․;   Breach of Fiduciary Duty ․;   Conspiracy․”]  See also id. at §§ 11:201-11:252, pp. 11-48 to 11-61.)

 The facts alleged in appellants' complaint do not support their contention that respondents failed to perform an independent, extracontractual legal duty arising from principles of tort law.   Appellants only allege that respondents failed to perform their duties under their respective insurance contracts;  appellants' cause of action for breach of the implied covenant of good faith and fair dealing adequately addresses such alleged failure.   We find that appellants have not stated facts which would support a separate cause of action for negligent handling of appellants' claim.

Furthermore, we find no merit in appellants' contention that the trial court committed reversible error by failing to hold a hearing on State Farm's motion for summary adjudication before dismissing the negligence cause of action against State Farm.   A hearing was held previously regarding Truck and Farmers' motion for judgment on the pleadings regarding the nearly identical negligence cause of action against them, and the trial court in fact determined that it intended to dismiss the negligence cause of action against State Farm pursuant to the earlier motion for judgment on the pleadings.   In any event, given our conclusion that appellants failed to properly state a cause of action for negligence, a hearing would have made no difference.

IV.-V.**

DISPOSITION

The judgment in favor of defendants and respondents State Farm Fire and Casualty Company, Truck Insurance Exchange, and Farmers Insurance Exchange, is reversed, except for the order granting judgment on the pleadings in favor of the defendant insurers as to plaintiffs' causes of action for negligence which is affirmed, and the matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.   Plaintiffs and appellants the Kazis are awarded costs on appeal.

The order awarding sanctions against objector and appellant Attorney Gary Smolker in favor of movants and respondents Kerns & Gradillas and Alida Vasquez is affirmed.   Kerns & Gradillas is awarded costs on appeal.

FOOTNOTES

1.   Throughout this opinion we refer to the Kazis' property as Parcel A and the Tollaksons' property as Parcel B.

2.   Boldface type is omitted from all policy language quoted herein.

3.   The matter should not have been submitted to arbitration because the foundational issue to be decided was the insurers' claim for declaratory relief regarding their duty to defend.   Judicial arbitration does “not apply to any civil action which includes a prayer for equitable relief.”  (Code Civ. Proc., § 1141.13.)

4.   The trial court also found that this was a “loss in progress in this case,” because “[a]ny trespass to tangible real property of the Tollaksons, or other potentially covered claim, occurred and was known by May of 1988.   The Truck and Farmers policies did not come into effect until March of 1991 [sic:  1990], and the State Farm Personal Liability Umbrella Policy did not come into effect until November of 1989;  therefore, as a loss in progress, the Tollakson action cannot be and was not insured by the Truck and Farmers policies and the State Farm Personal Liability Umbrella Policy, in accordance with California Law. (Ins.Code, § 22.)”   Apparently recognizing this ruling to be incorrect, the respondent insurers do not rely on this argument on appeal.  “Under this rule, liability insurance cannot be obtained for a known liability.   But where the imposition of liability is uncertain and no legal obligation to pay is yet established, there is an insurable risk for which coverage may be sought under a third party policy:  ‘Stated differently, the loss-in-progress rule will not defeat coverage for a claimed loss where it had yet to be established, at the time the insurer entered into the contract of insurance with the policyholder, that the insured had a legal obligation to pay damages to a third party in connection with a loss.’  (Montrose Chemical Corp. of Calif. v. Admiral Ins. Co. (1995) 10 [Cal.] 4th 645, 693 [42 Cal.Rptr.2d 324, 913 P.2d 878] ․)”  (Croskey et al., Cal. Prac. Guide:  Insurance Litigation (The Rutter Group 1998), § 1:6.1, p. 1-3, italics omitted;  see also id. at §§ 7:8.10-7:8.16, p. 7A-4.)

5.   The relevant language in each policy is as follows:  (Farmers primary policy):  We pay those damages which an insured becomes legally obligated to pay because of ․ property damage (physical injury to or destruction of tangible property, including loss of its use) resulting from an occurrence to which this coverage applies;  (Truck umbrella policy):  “We will pay damages on your behalf,” including “reasonable expenses that you incur in the investigation, defense and settlement of a claim or suit because of ․ property damage,” defined as “damage to or loss of use of tangible property”;  (State Farm primary policy):  “If a claim is made or a suit is brought against an insured for damages because of ․ property damage to which this coverage applies, ․ we will ․ provide a defense at our expense by counsel of our choice.”  “ ‘[P]roperty damage’ means physical damage to or destruction of tangible property, including loss of use of this property”;  (State Farm umbrella policy):  “If you are legally obligated to pay damages for a loss,” (“an accident that results in ․ property damage,” i.e., “physical injury to or destruction of tangible property[;] [t]his includes the loss of use caused by the injury or destruction” “during the policy period”), “we will pay your net loss minus the retained limit.”

6.   An easement is an interest in real property, but is not an estate in real property;  an estate in land must be a possessory interest, and an easement is necessarily a nonpossessory interest.  (See 5 Miller & Star, supra, § 15:5 at p. 402, fn. 73, citing Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 900, 901, 157 Cal.Rptr. 90.)

7.   The Farmers and Truck policies contain similar exclusionary language, but Farmers and Truck do not rely on these exclusions to deny their duty to defend.

8.   The phrase “invasion of rights of privacy” refers to a distinctly different type of tort than the phrase “other invasion of a person's right of private occupancy,” referring to a person's right “ ‘to be let alone’ ” rather than interference with the use, enjoyment or occupancy of property.  (Fibreboard Corp. v. Hartford Accident & Indemnity Co., supra, 16 Cal.App.4th at p. 513, 20 Cal.Rptr.2d 376 [interpreting similar language].)

9.   While plaintiffs mention the “wrongful detention” language in the policy, they make no claim that the Tollakson complaint alleged a wrongful detention, which term is commonly understood to refer to the wrongful detention of a person.

10.   We distinguish below appellants' cause of action for negligence from their cause of action based on breach of the implied covenant of good faith and fair dealing, which if successful would properly give rise to tort damages.

FOOTNOTE.   See footnote *, ante.

CHARLES S. VOGEL, P.J.

HASTINGS, J., and CURRY, J., concur.