In Porter v. Clarendon National Ins. Co., the Appeals Court, in overturning a Superior Court judgment, ruled that an insurer had a duty to defend, and a duty to indemnify its insured in an underlying lawsuit based on the date of occurrence of a trespass. In this case, a land owner was sued in a 2004 lawsuit for trespass based on a retaining wall and two parking spaces that it built on its neighbor's property. The Appeals Court held that coverage was available under policies that the insurer had issued to the land owner between 2000 and 2003 and rejected the insurers' argument that the trespass did not occur during their policy periods because the 2004 lawsuit sought damages for trespass after 2004. Relying on evidence that the construction occurred some time before 2000, the Appeals Court held that the complaint in the 2004 lawsuit included a claim for continuing trespass and therefore the policies applied. The Court also rejected the application of a common "own, rent or occupy" exclusion, which bars coverage for damage caused to an insured's own property, stating that the damage was to a third party's property. The Court stated that since the lawsuit was brought by an abutter with no contractual or business relationship with the insured, the exclusion did not apply.
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