Tort: Homeowners sue their insurer for trespass

Where homeowners alleged that a contractor entered their property without notice and in contravention of prior instructions, but the contractor was an independent contractor, the insurer’s motion to dismiss the trespass claim was granted.

Background

Manus John Fish and Nancy Fish, whose home was damaged by two storms, filed suit against Property and Casualty Insurance of Hartford, primarily to seek damages under their home insurance contract. But plaintiffs are also seeking damages arising from the trespass of Hartford’s inspection contractor (Allcat).

Specifically plaintiffs allege that prior to the inspection, John informed Hartford and Allcat that “any inspections would need to be on agreed dates to ensure he was present,” as Nancy “suffers profound emotional physical disability . . . causing severely limited mobility, and that she lives in a medically controlled environment” at their home. John further explained that his “presence at the Property was required to support” Nancy’s “medical and emotional needs,” and specifically asked them not to conduct any activities at their home on June 24, 2022, because he would be at the hospital at that time.

In spite of John’s admonitions, individuals arrived at plaintiffs’ home for an inspection on June 24, 2022, without providing any notice. The noise and disruption of the unexpected inspection caused Nancy to believe she was in danger and to hide in a small storage closet, suffering damage to her shoulder.

Hartford has moved to dismiss plaintiffs’ trespass claim as to it.

Analysis

The amended complaint does not allege that Hartford or its employees directly entered plaintiffs’ property on June 24, 2022. Rather, it alleges that “the inspection company was acting as the agent of Defendant Hartford, and that the inspection of the Property was contracted for and directed by Hartford.”

Hartford first argues these allegations are insufficient to state a claim against it for trespass on an agency theory. That is correct. “In Virginia, the doctrine of respondeat superior imposes tort liability on an employer for the negligent acts of its employees . . . but not for the negligent acts of an independent contractor.”

“The factors which are to be considered when determining whether an individual is an employee or an independent contractor are well established: (1) selection and engagement; (2) payment of compensation; (3) power of dismissal; and (4) power to control the work of the individual. The fourth factor, the power to control, is determinative.”

Here, plaintiffs do not allege facts indicating that Hartford possessed a power of control over Allcat’s inspection operations—rather, they simply suggest a relationship by which Allcat was paid to perform a service: the inspection. This is dispositive of the agency or respondeat superior issue, because Virginia does not allow for the imposition of vicarious liability on an employer for the tortious acts of an independent contractor on an apparent agency or ostensible agency theory.

In their opposition, plaintiffs attempt an end-run around vicarious liability by insisting that Hartford’s actions, as alleged, simply meet the definition of trespass under Virginia law. But the amended complaint does not allege an act by Hartford that directly caused the unwanted invasion of plaintiffs’ property.

Indeed, all that can be plausibly inferred from the amended complaint is that Hartford hired Allcat and instructed them to conduct an inspection. Plaintiffs do not claim that Hartford directly caused the inspection to occur on the day it did, or directed Allcat to contravene John’s requests.

Hartford’s partial motion to dismiss granted.

Fish v. Property and Casualty Insurance Company of Hartford, Case No. 1:25-cv-00469, June 2, 2025. EDVA at Alexandria (Nachmanoff). VLW 025-3-235. 5 pp.