I respectfully dissent. The dispositive issue in this case is whether damages recoverable in an unlawful detainer action sound in tort or contract. If they sound in tort, as an unbroken line of cases spanning 70 years so holds, Insurance Company of the West (ICW) is obligated to defend the Fragomenos in the unlawful detainer action brought by their landlord.
Prior to discussing the case authority on this issue, I first briefly address certain preliminary issues.
*832I. The Term “Personal Injury” Includes Any Injury Arising From the Tortious Acts Enumerated in the Endorsement.
Since coverage is limited to damages arising from personal injury, “personal injury” must be defined within the meaning of the policy. ICW argues “personal injury” only includes offenses against persons where the injuries suffered are emotional in nature. In the context of this particular insurance contract, this assertion is incorrect.
The policy defines personal injury as injury “sustained by any person or organization and arising out of one or more of the following offenses: . . . invasion of the right of private occupancy.”1 “[T]he term ‘personal’ is used in a highly specialized sense. It does not mean physical damage to a person; rather it means injury arising out of one or more specified offenses.” (3 Cal. Insurance Law & Practice (Bender ed. 1988) § 49.40[3], p. 49-69; see Nichols v. Great American Ins. Companies (1985) 169 Cal.App.3d 766, 775-776 [215 Cal.Rptr. 416] [“the ‘personal injury’ contemplated by the business liability policies was the ‘wrongful entry, eviction or other invasion of the right to private occupancy’ relating to some interest in real property”]; Cincinnati Ins. Co. v. Davis (1980) 153 Ga.App. 291 [265 S.E.2d 102, 105] [insurance company was obligated “to defend and insure against any sums due by the . . . [insured] arising out of a wrongful entry or eviction or other invasion of the right ... to peaceful and private occupancy”], original italics.)
While, as we discuss shortly, the majority elects not to follow settled authority that an unlawful detainer action sounds in tort, it does choose to follow cases holding the policy language is properly construed to cover only tort, as opposed to contract, liability. (See Fireman's Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 997-998 [216 Cal.Rptr. 796]; International Surplus Lines Ins. Co. v. Devonshire Coverage Corp. (1979) 93 Cal.App.3d 601, 611 [155 Cal.Rptr. 870].) This seems a far more debatable proposition than the one over which we differ today. After all, the language ostensibly limiting the personal liability endorsement to tort actions is far from clear on this issue.
In both Fireman’s Fund and International Surplus, the Courts of Appeal conclude the phrase “shall become legally obligated to pay as damages” is the functional equivalent to “damages for liability imposed by law” which, in turn, refers to damages which are “ex dilecto” rather than “ex *833contractu.” {Ibid.) The courts therefore conclude contract damages are excluded under this language.
Such a hypertechnical construction violates the most elementary rule of construction for policy language. “The policy should be read as a layman would read it and not as it might be analyzed by an attorney or an insurance expert.” (Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115 [95 Cal.Rptr. 513, 485 P.2d 1129, 48 A.L.R.3d 1089]; accord Ponder v. Blue Cross of Southern California (1983) 145 Cal.App.3d 709, 723 [193 Cal.Rptr. 632].) At the very least this language is ambiguous, thereby necessitating courts to construe it against the insurer. (Delgado v. Heritage Life Ins. Co. (1984) 157 Cal.App.3d 262, 271 [203 Cal.Rptr. 672].)
Nonetheless, I note the Fragomenos do not argue contract damages are covered under the endorsement. Moreover, I believe the established law is clear that unlawful detainer actions sound in tort not contract. Accordingly, I see no reason to reach the issue whether this insurance policy covers contract damages as well and move on to the remaining issues.
II. The Phrase “Invasion of the Right of Private Occupancy” Is Sufficiently Broad to Encompass Unlawful Detainer Actions.
The Fragomenos argue the policy covers the unlawful detainer actions because E & L General Partnership (E & L) is claiming a right to reoccupy its premises following the Fragomenos’ alleged breach of their lease. ICW does not dispute this interpretation.
The phrase “invasion of the right of private occupancy” is, as ICW conceded during oral argument, ambiguous. (See Gardner v. Romano (E.D.Wis. 1988) 688 F.Supp. 489, 493.) This ambiguity has lead courts to find coverage in a variety of situations. (See e.g., Gardner v. Romano, supra, 688 F.Supp. at p. 493 [landlord’s discrimination against potential tenants based upon race violated their private right to occupancy]; Goshen v. Grange Mut. Ins. Co. (1980) 120 N.H. 915 [424 A.2d 822, 824] [town’s delay in providing property owner with subdivision approval violated his right to private occupancy]; Ranger Ins. Co. v. Bal Harbour Club, Inc. (Fla.App. 1985) 509 So.2d 940, 942 [social club’s refusal to approve purchasers’ membership application because of their religion violated the purchasers’ private right to occupancy where membership was a condition to purchase of their home].)
Although courts have grappled with this language to determine whether certain acts are covered by the policy, the phrase “right to private *834occupancy” has never been defined. However, the phrase clearly encompasses an insured’s interference with another’s “right” to possess an interest in real property. (See Nichols v. Great American Ins. Companies, supra, 169 Cal.App.3d at p. 776 [complaint must allege an invasion of an interest attendant to the possession of real property].)
The very nature of an unlawful detainer action is the wrongful possession of real property in violation of another’s superior rights. “The remedy of unlawful detainer is designed to provide means by which the timely possession of premises which are wrongfully withheld may be secured to the person entitled thereto.” (Knowles v. Robinson (1963) 60 Cal.2d 620, 625 [36 Cal.Rptr. 33, 387 P.2d 833]; see Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 748 [139 Cal.Rptr. 72] [“An unlawful detainer action is founded upon unlawful occupation”]; Greenberg v. Koppelow (1946) 76 Cal.App.2d 631, 634 [173 P.2d 821] [“By the election of the respondents to serve notice and sue, their former tenant was automatically converted into a wrongdoer [citations] or a trespasser [citation]”], original italics; 4 Miller & Starr, Current Law of Cal. Real Estate (1977) Unlawful Detainer, § 27:124, p. 474.) Thus, the “right to private occupancy” includes a landlord’s right to retake possession of his premises following his tenant’s breach of the lease.
Here, E & L alleges the Fragomenos have breached the lease agreement and, therefore, they are no longer entitled to remain on the premises. Further, the Fragomenos have refused to quit the premises despite a notice to do so. Assuming these allegations are true, the Fragomenos, by refusing to vacate, are interfering with E & L’s right to reoccupy the premises. Accordingly, provided the damages sought are within the policy provisions, ICW must defend the Fragomenos in E & L’s unlawful detainer actions and pay all sums due which are covered by the policy.
III. The Damages Recoverable in an Unlawful Detainer Action Are Based Upon a Tort Theory of Liability.
It is at this point where I diverge from the majority’s opinion.
An insurance company’s obligation to defend and indemnify its insured only arises when there is a potential for recovery of covered damages. (Gray v. Zurich Ins. Co. (1966) 65 Cal.2d 263, 276-277 [54 Cal.Rptr. 104, 419 P.2d 168].) Therefore, the damages sought by E & L in its unlawful detainer actions must be tort, rather than contract, damages.
The majority seeks, without any citation to authority, to carve an exception to the uncontroverted rule that damages recoverable in an unlawful *835detainer action sound in tort. This exception is based upon the purported distinction between unlawful detainer actions arising from a contractual breach by the tenant which then terminates the leasehold versus the expiration of the leasehold followed by a tenant’s holdover. This distinction ignores the very nature of unlawful detainer and the damages recoverable thereunder.
First, despite the majority’s suggestion to the contrary, an unlawful detainer action is not a contract action. (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599 [181 Cal.Rptr. 795] [“ ‘An unlawful detainer action is not based upon contract . . . .’ ”]; Fifth & Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 200 [162 Cal.Rptr. 271, 7 A.L.R.4th 580]; D'Amico v. Riedel (1949) 95 Cal.App.2d 6, 9 [212 P.2d 52].)2 Thus, to say the gravamen of some unlawful detainer actions is contractual, thereby transmuting the recoverable damages into contract damages, is erroneous. The true gravamen of every unlawful detainer action is the wrongful possession of real property. (See Vella v. Hudgins (1977) 20 Cal.3d 251, 255 [142 Cal.Rptr. 414, 572 P.2d 28]; Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, 1034 [112 Cal.Rptr. 884].)
Second, “[i]t is well settled that damages allowed in unlawful detainer proceedings are only those which result from the unlawful detention and accrue during that time.” (Vasey v. California Dance Co., supra, 70 Cal.App.3d at p. 748; accord Mihans v. Municipal Court (1970) 7 Cal.App.3d 479, 489 [87 Cal.Rptr. 17]; Haig v. Hogan (1947) 82 Cal.App.2d 876, 878 [187 P.2d 426]; Chase v. Peters (1918) 37 Cal.App. 358, 362 [174 P. 116].) Since the damages only arise from the unlawful detention, it is irrelevant whether the unlawful detention resulted from a contractual breach or a trespass; in both instances the defendant remains on the property unlawfully.
Finally, the “ ‘damages awarded ... in an unlawful detainer action for withholding possession of the property are not “rent” but are in fact damages.’ [Citation.] Thus, a landlord is entitled to recover as damages the reasonable value of the use of the premises during the time of the unlawful detainer either on a tort theory or a theory of implied-in-law contract.” (Adler v. Elphick (1986) 184 Cal.App.3d 642, 649 [229 Cal.Rptr. 254]; accord Lehr v. Crosby (1981) 123 Cal.App.3d Supp. 1, 9 [177 Cal.Rptr. 96]; *836Greenberg v. Koppelow, supra, 76 Cal.App.2d at p. 634 [unlawful detainer “ ‘does not arise upon contract, but sounds in tort . . . .’ ”]; Stockton Morris Plan Co. v. Carpenter (1936) 18 Cal.App.2d 205, 210 [63 P.2d 859]; Cowell v. Snyder (1911) 15 Cal.App. 634, 638 [115 P. 961].)3 In sum, all available authorities recognize the damages recoverable in an unlawful detainer action sound in tort. Accordingly, I would hold ICW is obligated to defend the Fragomenos and indemnify them for all damages arising from their unlawful detainer of the leased premises. (See Fireman’s Fund Ins. Co. v. City of Turlock, supra, 170 Cal.App.3d at pp. 997-998; International Surplus Lines Ins. Co. v. Devonshire Coverage Corp., supra, 93 Cal.App.3d at p. 611.) However, ICW would not be required to indemnify the Fragomenos for any exemplary damages they must pay since such damages are not insurable. (See Peterson v. Superior Court (1982) 31 Cal.3d 147, 158 [181 Cal.Rptr. 784, 642 P.2d 1305].)
Appellants’ petition for review by the Supreme Court was denied April 25, 1989.
ICW’s assertion that “personal injury” is not defined in the policy ignores the policy’s plain language.
The majority relies upon an innocuous statement in Mr. Witkin’s California Procedure (3d ed. 1985) which recognizes an unlawful detainer action “has characteristics of a contract action” as contrary authority (see ante, p. 830). Such reliance illustrates the dearth of authority supporting the majority’s decision. An unlawful detainer action without question has characteristics of a contract action. This does not alter the fact, reiterated by every opinion to address the subject, that it is not a contract action. (See infra.)
The fact damages may also be recoverable under a quasi-contract theory does not defeat ICW’s duty to defend. This duty arises whenever there is a possibility of coverage under any theory that could be based on the facts involved. (See Gray v. Zurich Ins. Co., supra, 65 Cal.2d at pp. 276-277; CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598, 605 [222 Cal.Rptr. 276]; Cal. Practice Guide: Bad Faith (TRG 1988) § 8:44, pp. 8-10.) Here, such a possibility arises since the damages are also recoverable under a tort theory.