Number of Occurrences Determination

3b495-legalscalesimageNumber 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)

2015 CLM Webinar

Keais

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

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*This posting is for informational purposes only, as a courtesy to our reading audience. Provencher & Company has in no way been compensated for the sharing of this information. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

Webinar: Independent Counsel – When Required & Strategies for Defense

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Independent Counsel:
When Required & Strategies for Defense

Keais

Claims with multiple insured defendants and coverage conflicts present difficult litigation management & resolution challenges. This session will discuss determining if there are coverage conflicts and how to address such issues. In addition, the session will discuss issues and strategies for litigation management of claims with coverage conflicts and conflicts between insured defendants including dealing with independent counsel and handling negotiations.

Date: Wednesday, March 11, 2015
Time: 12:00 PM – 1:00 PM EDT

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*The posting of this article is for informational purposes only, as a courtesy to our reading audience. Provencher & Company does not own, has in no way been compensated for the sharing of this information, and content of said article belongs to that of the originating author. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

 

Minnesota Holds “Comparable Material and Quality” Requires Wholesale Replacement Where Undamaged Siding Is Faded

by Dick Bennett

cozen article 1-5-15Matching issues are frequently problematic when storms damage only portions of an insured structure’s exterior and it proves impossible to replace the damaged sections with material that is an exact match for the rest of the building’s roof or siding.  Earlier this month, the Minnesota Supreme Court held that the phrase “comparable material and quality” means material that is suitable for matching; with respect to color, a reasonable match – not an identical match – is all that is required.  In Cedar Bluff Townhome Condominium Ass’n. v. American Family Mut. Ins. Co., – N.W.2d – , 2014 WL 7156914, 2014 Minn. LEXIS 661 (Minn., Dec. 17, 2014), however, the court held that that meant that all of the siding on 20 buildings had to be replaced to avoid a color mismatch even though less than 2% of it had actually sustained hail damage.  Continue reading

Broad Evidence Rule Reliance On Market Value Rejected

Broad Evidence Rule Reliance On Market Value Rejected3b495-legalscalesimage

A Wisconsin appellate court has set aside an Appraisal award that determined Actual Cash Value of a fire damaged building under the Broad Evidence Rule. The Appraisal panel determined ACV utilizing five factors including market value, averaged of adjusted sales price, income approach, building assessment value and a less than 100% weight factor for replacement cost less depreciation. The court relied on a common understanding of Actual Cash Value, including definitions from the Commissioner of Insurance Office, Black’s Law Dictionary and the carriers own website to conclude that Actual Cash Value in this case would be calculated primarily by subtracting depreciation from the cost to repair the damaged property.

Coppins v. Allstate

 

This is presented for adjustment practice information only and should not be construed as legal advice. For a full copy of the unpublished opinion click here.  We would encourage readers to secure legal counsel before relying on this opinion.

Ohio Supreme Court Says Ambiguity Determination Must Consider Context

3b495-legalscalesimageIn the recent case of Sauer v. Crews, 2014-Ohio-3655, an insurance company asked the Ohio Supreme Court to affirm that when determining whether a policy provision is ambiguous, courts must consider the context of the provision and should not isolate the provision or weigh ambiguity in the abstract. The court agreed with the insurer and ruled that “courts must look at the provision in the overall context of the policy in determining whether the provision is ambiguous.” 

Continue reading