The First District recently ruled that an insurer had not duty to defend its insureds in a dispute between the insureds and their neighboring property owner concerning a proposal to relocate a driveway easement, which gave rise to the filing of a lawsuit, three appeals and a motion for sanctions.  The insureds’ neighbor sued the insureds over the neighbor’s proposal to relocate a portion of the driveway easement that crossed over the neighbor’s property.  According to the complaint, (1) the current location of the driveway contributed to poor storm water drainage and caused recurrent severe flooding in her home, rendering her home intermittently uninhabitable, (2) the neighbor had proposed to move the driveway at her own expense and to leave the existing driveway in place until the new driveway was completed, and (3) the insureds refused to consent to the relocation of the driveway easement.  The neighbor’s second amended complaint sought injunctive and declaratory relief but made no request for monetary damages.

The First District Court affirmed the circuit court’s grant of summary judgment in favor of the insurer on the duty to defend.  The Court held that the recurring flood damage to the neighbor’s home as alleged in the complaint was not an “occurrence” under the policy because the flooding was not accidental but was instead the natural and ordinary consequence of the insureds’ conduct in repeatedly refusing to allow the neighbor to relocate the driveway easement.  The District Court reasoned the insureds should have reasonably expected that the flooding of the neighbor’s property would continue unabated given the insureds’ repeated refusals to allow the neighbor to move her driveway and that the damages were therefore reasonably expected by the insureds.

Submitted by Melissa Dakich