violations of the warranty of habitability. It must therefore be concluded that the Broad Form Endorsement covers claims for the violation of the warranty of habitability.
A. Plain Meaning
Under District of Columbia law, the starting point for interpreting insurance contracts is the "plain meaning which common speech imports." Int'l Brotherhood of Painters & Allied Trades v. Hartford Accident & Indemnity Co., 388 A.2d 36, 42 (D.C. 1978). If at all possible, the contract's terms must be read "for the meaning they would carry in ordinary language." S. Freedman & Sons v. Hartford Fire Ins., 396 A.2d at 199. In this case, however, the word "occupancy" is not used in its ordinary sense. Moreover, both parties suggests interpretations that, based upon the language in isolation, are plausible.
"Occupancy" normally refers to the state of being inhabited. For example, landlords often take out "use and occupancy" insurance as a hedge against any "inability to keep the premises occupied." 1 Couch on Insurance § 1:113, at 275 (M. Rhodes ed. rev. 2d ed. 1984) (citation omitted). Similarly, insurers may offer builder's risk insurance on the condition that there is no "occupancy." See 8 Couch on Insurance § 37A:307, at 355. Occupancy also refers to the number of occupants a premises may company. Thus, zoning regulations may designate specific areas for single or multiple occupancy units. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977); Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974).
The Broad Form Endorsement does not refer to either of these common uses of occupancy. When it speaks of "other invasions of the right of private occupancy," the Endorsement does not use "occupancy" to refer to the state of being inhabited or to the number of inhabitants a premises may support but rather to the act of inhabiting or possessing property. The "right of private occupancy" refers to those rights associated with an individual's act of occupying an apartment. The question remains what those rights are.
Landmark contends that rights of private occupancy are possessory rights. This interpretation equates the act of occupying with physical possession, and the rights associated with that act with the rights associated with possession. Beltway contends that the rights of private occupancy referred to in the Broad Form Endorsement are broader. Beltway would include within those rights certain rights to use the premises. The chief right would be the right to a premises fit for use, which is equivalent to the implied warranty of habitability. Thus, Beltway reads the right of private occupancy to include the right to something occupiable.
Both interpretations draw support from dictionary definitions. One dictionary, Webster's, defines occupancy to be, among other things, "the taking and holding possession of real property under a lease or tenancy at will." Webster's Third New International Dictionary 1560 (1971). Focusing primarily upon physical possession, this definition lends to support Landmark's contention that the rights of private occupancy are rights of possession. This definition does not, however, exclude Beltway's interpretation: It is possible that "holding possession" implies a premises which can be held. In other words, the definition may contemplate a premises fit for use, and the rights associated with that definition may include the warranty of habitability. This interpretation of "occupancy" draws support from another dictionary definition: Black's Law Dictionary defines occupancy as "taking possession of property and use of the same; said e.g. of a tenant's use of leased premises." Black's Law Dictionary 973 (5th ed. 1979). Suggesting that use is central to the concept of occupancy and possession, this definition supports Beltway's position. Nevertheless, a fair reading of these definitions together cannot be said to support either party emphatically.
More technical sources are similarly unhelpful. The phrase "right of private occupancy" does not appear to be a term of art. Searches on both LEXIS and WESTLAW reveal that besides cases quoting the language of the Broad Form Endorsement, the only repeated use of that term is in connection with searches of hotel and motel rooms. See, e.g., United States v. Akin, 562 F.2d 459 (7th Cir. 1977) (considering when Fourth Amendment rights attach to guests). Moreover, although the term "occupancy" has a technical meaning in property law, it is not being used in that sense here. In property doctrine, "occupancy" refers to the method of acquiring legal rights to unclaimed objects.
The Broad Form Endorsement cannot be using occupancy in this sense because the landlord already has a claim of right to the premises; moreover, the tenant does not establish his right to possession through physical possession, or adverse possession, but rather through the lease contract.
In sum, although Beltway's interpretation is the more elegant of the two, Landmark's interpretation "other invasions of the right of private occupancy" is quite plausible, and neither ordinary language, dictionary definitions, or technical usage clearly prefers one interpretation over the other. As a consequence, it is necessary to turn to other tools of construction.
B. Other Tools of Interpretation
Once those tools are applied, it becomes clear that Beltway's interpretation is superior. Although initially plausible, Landmark's interpretation is premised upon a mistaken reading of the text. A broader interpretation such as Beltway's which reads "other invasion of the right of private occupancy" to encompass a broad range of claims against landlords is more faithful to the text of the Broad Form Endorsement. Given modern principles of landlord-tenant law, that broad range must include claims for the breach of the warranty of habitability. Although there are no cases directly on point, this reasoning is supported by ample precedent which for the most part reads the Broad Form Endorsement even more broadly.
Landmark emphasizes that section II(D)(2) lists three items: "wrongful entry or eviction or other invasion of the right of private occupancy." Landmark reasons that the final item should read as a basket phrase, a catch-all meant to encompass the broader category of which the first two items, wrongful entry and wrongful eviction, are a part. Since both wrongful eviction and wrongful entry involve rights of possession, respectively the right to maintain possession and the right to sole possession, Landmark reasons that "other invasions of the right of private occupancy" must involve a similar invasion of possessory rights. According to Landmark, "[a] typical example of such conduct would be improper entry by a landlord with a pass key or improper entry by a landlord without prior notice to the tenant." Defendant's Response to Plaintiff's Motion for Partial Summary Judgment at 2. Apparently, then, invasions of the right of private occupancy would refer to actions that like use of a pass key might not technically constitute wrongful entry but are quite similar to the enumerated offenses. Because violations of the warranty of habitability have nothing to do with entry or with actual eviction,
Landmark concludes that the Tenant Council's complaint stating such violations does not trigger Landmark's duty to defend.
This analysis is premised upon a misreading of the contract. Landmark reads section II(D)(2) as if it listed three related items: "wrongful entry, wrongful eviction, or other invasion of the right of private occupancy." However, the actual language disconnects these three items by stating in hoc verba that personal injury "means injury arising out of . . . wrongful entry or eviction or other invasion of the right of private occupancy." Policy § II(D)(2). This definition is better read as referring to two independent categories:
(a) wrongful entry or eviction or
(b) other invasion of the right of private occupancy.