Steven Plitt, Expert Witness Steven Plitt, Expert Witness
Insurance Bad Faith Claim Handling Expert Serving Clients Nationwide

January 2020 Archives

WISCONSIN SUPREME COURT WEIGHS IN ON QUESTION OF NUMBER OF OCCURRENCES

Recently, in a fire loss case, the Wisconsin Supreme Court revisited the question of the number of occurrences. In Secura Insurance v. Lyme St. Croix Forest Company, LLC, 918 N.W.2d 885 (Wis. 2018), the issue of multiple occurrences arose. Under the facts of the case, a fire started in a piece of logging equipment owned by the insured. The flames from the fire spread from dry grass to a pile of recently felled jack pine and then into the surrounding forest. Eventually, the fire had burned thousands of acres over the course of three days. There was both real and personal property loss to many individuals and businesses. Secura Insurance, the insured's liability insurance company, brought a declaratory judgment action to establish that the fire involved a single occurrence subject to the policy's $500,000 per occurrence limit, as opposed to the policy's $2 million aggregate limit. The trial court found against Secura. The trial court found that each property owner's claim qualified as a separate occurrence and, therefore, Secura's total liability under the policy was the aggregate limit. The intermediate appellate court agreed with the trial court. However, the Wisconsin Supreme Court reversed.

ADDITIONAL INSURED STATUS IS LIMITED BY RHODE ISLAND SUPREME COURT

In Bacon Construction Co., Inc. v. Arbella Protection Insurance Company, Inc., 208 A.3d 595 (R.I. 2019), the Rhode Island Supreme Court enforced the terms of an endorsement which limited additional insured status to liability events that were caused partially by the acts or omissions of the named insured or those acting on behalf of the named insured. In this case, a subcontractor's liability policy contained an endorsement which listed the construction project's general contractor as an additional insured, but only with respect to liability for injury or damage caused partially by the acts or omissions of the named insured. The underlying case involved an employee's lawsuit against the general contractor only for negligence. Because the underlying complaint only alleged the general contractor's negligence, the Court enforced the limiting language of the additional insured endorsement when finding that the general contractor was not an additional insured because the named insured's liability was not involved at least partially in the underlying tort case.

INDIANA COURT FINDS ONE OCCURRENCE

In a recent case, the Indiana Court of Appeals held that while a spill of hazardous materials resulted from two distinct regulatory violations, the event was a single occurrence for purposes of insurance. In Auto-Owners Ins. Co. v. Long, 112 N.E.3d 1165 (Ind. Ct. App. 2018), transfer denied, 124 N.E.3d 61 (Ind. 2019., a shipping company which was shipping a hazardous substance failed to properly label and package a hazardous substance that was being shipped. The hazardous substance spilled and injured a postal worker. The Court found only one occurrence, notwithstanding the two regulatory violations (labeling and packaging). Using a cause analysis for determining the number of occurrences, the Court found that while the insured failed both to properly label and package the hazardous substance did not multiply the number of occurrences. Both regulatory violations resulted in only one accident that resulted from the regulatory violations. Although the insured did two things wrong, both in shipping and packaging the hazardous material, the wrongdoing resulted in only one spill, which was the single proximate, uninterrupted, and continuing cause that resulted in the injury to the postal worker.

ADDITIONAL INSURED STATUS IS LIMITED BY RHODE ISLAND SUPREME COURT

In Bacon Construction Co., Inc. v. Arbella Protection Insurance Company, Inc., 208 A.3d 595 (R.I. 2019), the Rhode Island Supreme Court enforced the terms of an endorsement which limited additional insured status to liability events that were caused partially by the acts or omissions of the named insured or those acting on behalf of the named insured. In this case, a subcontractor's liability policy contained an endorsement which listed the construction project's general contractor as an additional insured, but only with respect to liability for injury or damage caused partially by the acts or omissions of the named insured. The underlying case involved an employee's lawsuit against the general contractor only for negligence. Because the underlying complaint only alleged the general contractor's negligence, the Court enforced the limiting language of the additional insured endorsement when finding that the general contractor was not an additional insured because the named insured's liability was not involved at least partially in the underlying tort case.

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