This environmental coverage action arises out of a carbon monoxide exposure and poisoning of multiple tenants in an apartment complex serviced by a gas boiler furnace located in the basement of the unit.
A declaratory suit was initiated against the complex owner and the insurer seeking a declaration that claimants are entitled to a separate occurrence limit and that the damages sustained by each group of tenant plaintiffs constituted separate occurrences under the policy. Here, the subject policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy at issue provided a per occurrence limit of $1,000,000 and a general aggregate limit of $2,000,000. Claimants contended that since the injuries to the two families, occupying separate apartments, took place over the course of an evening and each apartment was exposed to different levels of carbon monoxide, there was more than one occurrence. Conversely, the insurer argued that there was one cause of claimants’ injuries; thus only one occurrence.
Specifically, plaintiffs contented that because the evidence demonstrated that the subject exposures and injuries were separated by time, place, and severity, they should have been considered separate occurrences pursuant to Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332 S.E.2d 639 (1985), which held that “[t]he term ‘occurrence’ . . . refers unmistakably to the resulting event for which the insured becomes liable and not to some antecedent cause(s) of the injury.” Id. at 338. Claimants argued that because they and the decedent were exposed to carbon monoxide at different times during the night of September 4, 2011, and the early morning hours of September 5, 2011, and because they were exposed to varying levels of carbon monoxide, there was more than one occurrence under the policy of insurance. They also argued that although the apartments were in the same duplex, they were legally and factually separate places.
In holding for the insurer, the Supreme Court acknowledged that Shamblin is the controlling case on this issue, but upheld the Circuit Court ruling of one occurrence under the facts of the case. Specifically the Supreme Court held that the record established that there was a carbon monoxide leak from a single source, the gas boiler furnace. While the gas traveled to different rooms within the single building at different times over several hours, the injuries to petitioners and the decedent were from continuous or repeated exposure to substantially the same general harmful conditions. Thus, under Shamblin, the Court concluded that the definition of occurrence at issue in the instant case was not ambiguous, and thus, there was a single occurrence under the policy.
Kosnoski v. Erie Ins. Property and Casualty et. al.
(Supreme Court of Appeals of West Virginia, February 18, 2014)