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Landlord's homeowners insurance and implied warranty of habitability.

San Diego, CA |

If a landlord is negligent or even reckless in his duty to monitor and maintain rental premises habitable and the landlord is sued by a tenant, does the lanlord's homeowner's insurance company have a duty to defend the landlord or otherwise pay the tenant?

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Attorney answers 3

Posted

It would depend on the terms of any applicable policy and the facts asserted. If I were representing a landlord, I would certainly tender defense of any claim to the landlord's carrier.

The answer is: it depends. Residential and commercial policies universally contain terms which would exclude coverage for claims based upon mere habitability, especially those that relate to failure to repair and maintain the premises, which have not resulted in any non-economic injury.

However, the duty to defend is broader than the duty to indemnify. There are many claims that could be made against an owner of real property which may relate to habitability which not only required defense by the carrier but also indemnification.

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Asker

Posted

A person who works in real estate said to me that for practical purposes in cases where an owner rents out the property, if a tenant sues the landlord for anything the landlord is at fault, the personal liability portion of the landlord's homeowner's insurance would cover both negligent and intentional acts by the landlord. Of course, just as when a motorist causes an accident and injury to others for racing, speeding, or running someone off the road, their liability insurance will cover the damages but the insurance company may later drop their insurance or raise their rates. The person also said to me that homeowner's insurance companies are not interested in going to trial in cases where the owner is at fault and prefer to settle with the tenant. It seems to make sense.

Posted

The insurance carrier's duty to defend depends upon a number of factors, most importanly, the terms of the policy and the claims being asserted. If the tenant's complaint alleges a cause of action for negligence causing bodily injury to the tenant, most likely, the insurance carrier would have the duty to defend and indemnify. If the tenant's complaint only includes causes of action for breach of contract or causes of action for intentional torts, the insurance carrier would not have a duty to defend.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

Asker

Posted

That's interesting. The defendant's policy is very basic only shows dwelling, dwelling extension, personal property, loss of use, personal liability-damage to property of others, and medical payments to others. there is no coverage libel, slander, invasion of privacy, false arrest. there is a seepage or leakage exclusion including plumbing bath, etc. affecting walls floors, etc.. My complaint alleges breach of warranty of habitability but only for physical discomfort, no bodily injury, and resulting damage to my property is only around $350 at most. However, I have causes for a lot of intentional torts, fraud, breach of contract, breach of covenant of quiet enjoyment, IIED, invasion of privacy, civil conspiracy, and retaliatory acts and eviction amounting to much higher damages. I highly doubt her homeowners insurance would defend that. However, the landlord in the cross-complaint refers to the repairs as destruction of property and even vandalism. Because I know my facts are true and can prove them, the only thing I can think is that the landlord has filed a false insurance claim to defend from my claims but also hope to get free repairs from the insurance company for many other pending repairs on the property which are really the landlord's doing, not mine. Is this a possible scenario? Do some deviant landlords sometimes do such things?

Posted

As Messrs. Daymude and Chen imply, no law prohibits an insurance company from covering the claim.

Asker

Posted

What about insurance code 533 and and the intentional acts exclusion. These don't "prohibit" an insurance company to defend intentional torts but they seem to not obligate an insurance company from doing so, and apparently in California most insurance companies are not inclined to defend intentional torts, although perhaps coverage for that may be obtained, but in my case it seems like the landlord does not have coverage for that.

James Carl Eschen III

James Carl Eschen III

Posted

A breach of the implied warranty of habitability is not an intentional tort. As you stated in your post, it may be done negligently or recklessly. In fact, the term "warranty" implies that the person warranting is liable for a breach regardless of the wrongfulness of his conduct.

Asker

Posted

Sorry. I inderstand. I put more information in my comment to Mr. Chen's answer. Basically, under my complaint I claim very littl e that the defendant's insurance would defend from, except maybe $350, but I do make claims for much higher damages for intentional acts. However, the defendant landlord in her cross-complaint falsely claims I destroyed property, perhaps $20,000, which I didn't do, so she can claim it and have the insurance company try to go after me for that, in which case the insurance company would not be defending but "prosecuting" her cross-complaint based on her false claims or insurance fraud. I know it sounds unusual, by that's what I think the landlord's scenario is. If that is the case, the insurance company, by "prosecuting" her case has by default to also defend her from my numerous claims of intentional torts.

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