Number of occurrence can be a knotty issue for courts and coverage counsel. In interpreting the standard policy language, the vast majority of courts count the causes rather than the effects of the harm to determine the number of occurrences. To determine the number of occurrences, courts must look at the specific act of the insured that immediately precedes the harm and directly led to liability.
Multiple plaintiffs sue a petting zoo for exposing them to E. coli bacteria. The petting zoo’s liability insurer maintains that the applicable policy’s per occurrence limit of $1 million must be spread among all the claims. A federal district court agrees, holding that all of the exposures to E. coli constitute a single occurrence and trigger only a single $1 million limit.
A defective plumbing system damages 19 buildings in an apartment complex. The apartment complex’s insurer maintains that 19-per occurrence deductibles apply. A federal court agrees, holding that the damage to each building constitutes a separate occurrence implicating separate deductibles.
Defective paneling damages 1,400 houseboats, house trailers, motor homes and campers. The paneling manufacturer’s insurer maintains that 1,400 per-occurrence deductibles apply. A federal appeals court disagrees, hold that the damage to all the vehicles constitutes a single occurrence implicating a single deductible. (source)
Number of Occurrences Determination
Identifying the number of “occurrences” as defined in a liability policy is critical to determining whether the per “occurrence” or aggregate policy limit applies. This is often a million dollar difference. The importance of this issue is illustrated in cases involving lawsuits arising out of food-borne illnesses with numerous plaintiffs suffering from serious injuries. The claimants/plaintiffs’ goal in those cases is to maximize the policy limits available.
One such case is Republic Underwriter Ins.,et, al. v. Moore, et al, 493 Fed. Appx. 907 (10th Cir. 2012), in which both Pete Duncan (as the claims professional) and Linda Szuhy Ressetar (as counsel for the insurer) were involved. They will discuss the legal and practical lessons learned during the life of that case and recent litigation on the issue.
Date: Wednesday, June 10, 2015
Time: 12:00 PM – 12:30 PM EDT