Occurrence Archives - The Insurance & Reinsurance Report

May 14, 2019 Occurrence

Contractual Liability Exclusion Defeats General Contractor’s Bid Against Six Insurers for Defense and Indemnity in West Virginia

West Virginia’s highest court recently handed down a well-articulated decision on the scope of a CGL policy’s insuring agreement and exclusion for contractual liability, which could be influential to other courts who struggle with these commonly-litigated issues.

On May 1, 2019, the West Virginia Supreme Court of Appeals unanimously upheld summary judgment to six insurance companies in a declaratory judgment action relating to a property developer’s suit against its general contractor over construction defects at a shopping center. The insurers had issued a series of …

November 6, 2018 Occurrence / Policy Conditions, Considerations, Construction, and Formation

Florida’s Statutory Sovereign Immunity Language Inserted Into Any Government Liability Policy Takes Precedence Over the Policy’s Definition of “Occurrence”

In Florida, as in most jurisdictions, government agencies may be subject to liability for tortious acts, with the recovery limit capped by law. A recent decision, State of Florida v. Barnett, explores the recent conflict regarding the limit of recovery against a state agency for an “occurrence” involving multiple claimants.

Section 768.28(5), Florida Statutes (2010), states in relevant part as follows:

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds …

October 11, 2018 Commercial General Liability / Occurrence

This is No “Accident”: Ohio Court Rules CGL Policy Doesn’t Cover Shoddy Subcontractor Work

One of the ongoing battles in construction defect coverage law around the country is whether a general contractor’s commercial general liability (“CGL”) policy obligates the insurer to defend and indemnify the general contractor in a lawsuit based on faulty work performed—not by the general contractor—but on its behalf by a subcontractor. Yesterday, Ohio joined a small minority of states when its high court ruled that damage from a subcontractor’s faulty work is not an accident triggering an insurer’s defense obligation.

The case dealt with construction …

April 21, 2017 Duty to Defend / Occurrence

Insurers Beware: Wisconsin Court of Appeals Hold Expected/Intended Injury Exclusion Inapplicable to Injuries Arising from an Insured’s Negligent Supervision of its Employee

In Talley v. Mustafa (Wisc. App., Apr. 5, 2017), the Wisconsin Court of Appeals found coverage available in an underlying negligence suit against a store owner and reversed the circuit court’s grant of summary judgment in favor of Auto Owners Insurance Company. The court’s holding, in essence, was that a reasonable person in the insured’s position would have expected that his insurance policy would cover a customer’s negligence suit, including negligence in training/supervising an employee who contributed to the customer’s injuries.

The coverage dispute arose …

September 16, 2016 Occurrence / Personal and Advertising Injury

Fax Blast From the Past: Third Circuit Denies Coverage in TCPA Action

The Third Circuit denied coverage for alleged violations of the Telephone Consumer Protection Act (TCPA), while also ruling on a jurisdictional question regarding the amount in controversy applicable to declaratory judgment actions when they emanate from a class action lawsuit. This case reminds that even without a TCPA exclusion, blast fax suits may not present covered property damage or advertising injury claims.

In Auto-Owners Insurance Co. v. Stevens & Ricci, Inc., No. 15-2080, 2016 U.S. App. LEXIS 16182, (3d Cir. Sep. 1, 2016), …

March 23, 2016 Occurrence

It’s Not a Blob, It’s a Probiotic: Wisconsin Supreme Court Applies the “Integrated Systems” Rule in Coverage Dispute

In Wisconsin Pharmacal Company, LLC v. Nebraska Cultures of California, Inc., 2016 WI 14, the Wisconsin Supreme Court applied the “integrated systems” rule to a coverage dispute. In a narrow decision, it reversed the Court of Appeals decision and determined that the incorporation of a defective ingredient into a tablet did not constitute “property damage” caused by an “occurrence.” Further, the Wisconsin Supreme Court concluded that even if “property damage” was alleged, exclusions would apply to bar coverage.

The coverage dispute arose when a …

February 11, 2016 Occurrence

One at a Time! Anti-Stacking Provision Upheld

The Eighth Circuit Court of Appeals denied appellants’ attempts to classify the language of an anti-stacking provision ambiguous in Gohagen v. The Cincinnati Ins. Co., (8^th Cir., January 6, 2016).

The plaintiff was severely injured by a tree being removed by the policyholder. He reached a settlement with the policyholder, which included the insurer’s payment of $1,000,000; that figure represented the per-occurrence limit under the commercial general liability policy (CGL). The policyholder also had a business owners package (BOP) with a $1,000,000 per-occurrence …

February 8, 2016 Occurrence

Drilling Down Policy Language Results in Finding Two Occurrences Because Two Separate Events were Proximate Cause of Insured’s Losses

Hundreds, if not thousands, of cases have been decided based on the meaning of “arising out of” and “arising from” when used in an insurance policy. The recent case of Seahawk Liquidating Trust v. Certain Underwriters at Lloyds London, 2016 U.S. App. LEXIS 871 (5th Cir. Jan. 19, 2016)demonstrates that it is not only the words that matter, but the context in which the words are used is equally important. In Seahawk, the Fifth Circuit Court of Appeals held that two storms occurring …

December 3, 2015 Occurrence

New York Court Takes a Bite Out of Multiple Occurrences Argument

A New York Federal District Court recently held that an attack by two dogs upon two pedestrians constituted a single occurrence under the dog owners’ homeowners policy. In so holding, the court rejected use of the “unfortunate events” test to determine the number of occurrences because the policy language required that all injuries arising from the same general conditions would be considered to be the result of one occurrence, regardless of the number of claimants. As a result, the insurer’s liability was limited to the …

October 12, 2015 Occurrence

One Detached Dump Truck, Three Occurrences: The “Unfortunate Event” Test in New York

One of the key issues in many insurance disputes is the number of “occurrences,” which are presented by a particular set of facts relating to a claim submitted by the policy holder. In its recent decision of Nat’l Liab. & Fire Ins. Co. v. Itzkowitz, the Second Circuit was called upon to determine whether the events surrounding an incident on the highway involving three separate vehicles were part of one single occurrence under New York law.

The events surrounding this coverage action were caused …