Presenting - Strafford

Presenting a live 90-minute webinar with interactive Q&A
Number of Occurrences in
Insurance Liability Claims
Framing the Occurrence Issue to Maximize Policyholder's
Coverage or Limit Insurer's Liability Exposure
WEDNESDAY, APRIL 15, 2015
1pm Eastern
|
12pm Central | 11am Mountain
|
10am Pacific
Today’s faculty features:
John T. Harding, Jr., Partner, Lewis Brisbois Bisgaard & Smith, Boston
Michael John Miguel, Partner, Kasowitz Benson Torres & Friedman, Los Angeles
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THE NUMBER OF “OCCURRENCES”
DILEMMA
John T. Harding
Lewis, Brisbois, Bisgaard & Smith LLP
[email protected]
Michael John Miguel
Kasowitz Benson Torres & Friedman
[email protected]
5
“Occurrences”
• An unusual and tricky area of the law.
• Not “is there coverage” but “how much?”
• Small number of cases disguise the breadth of
the problem across all lines of coverage.
6
6
WHY is there a “DILEMMA”?
7
7
“Occurrences” Cases Used To Be Rare
• Requires unusual cluster of circumstances:
–
–
–
–
Insured must be liable
Policy must afford coverage
Case doesn’t settle
Liability must exceed conceded coverage
• Insurers haven’t wanted to take a position.
– No consistent “right” position that is always beneficial
– If you are excess today you may be primary tomorrow
8
8
Ripped from the Headlines
9
BOSTON BREAKS SNOW RECORD
10
Ripped From the Headlines
• Boston Clergy Abuse Scandal Shakes the Diocese
• 9/11
• Two Local Boys Freeze to Death
• Thousands Sue for Defective Drywall Made in China
• Reserves for Asbestos Claims Soar
11
Why Is This Now Such An Important Issue?
• Focus is increasingly on indemnity issues.
– Erosion of underlying layers of coverage
• Growing role of SIRS.
• High profile disputes:
WTC
12
12
Why This Issue Matters
13
13
You Can’t “Shake it Off”
14
Why Parties Have Avoided Litigating This
Issue Until Now
• There’s no one answer that’s “right” all the time.
• Insureds Generally Want Multiple “Occurrences”
– Maximize Limits
– But Not If They Have SIRs
– and Not If They Want To “Spike” Excess Layers
• Insurers Generally Want One “Occurrence”
– But Not If The Insured Has SIRs
– And Not If They Are Excess Carriers
15
15
The “Gloves” Are Off
16
“Occurrence” Players
• Dispute between insurer and policyholder.
• Dispute between primary and excess insurers.
• Dispute between insurer and reinsurer.
17
17
So What is an Occurrence?
• Generally defined by the policy.
• Frequently use the word “accident” to describe an
“occurrence”
– An “accident” is “an unexpected happening without
intention or design . . . [and i]mplicit in the meaning of
'accident' is the lack of intentionality.” Sheehan Const.
Co., Inc. v. Continental Cas. Co., 935 N.E.2d 160 (Ind.
2010).
18
18
A CAUTIONARY TALE
19
A Cautionary Tale
20
Stonewall Ins. Co. v. Du Pont
996 A.2d 1254 (Del. 2010)
• Very significant case illustrating the dilemmas for
policyholders and insurers
• Do “independent causes” = separate
“occurrences”?
• Significance of “premises locations”
21
MONEY NEVER SLEEPS
• $50 million per occurrence SIR
• Presents a $24 trillion dollar question
• Is the coverage illusory?
22
Stonewall v. DuPont
• Defective plumbing systems
• Specific damage at each location where installed
• Different types of defects claimed
• But one overall manufactuing process
23
Who Wants to Be a Millionaire
24
The Court Speaks
• ARE YOU KIDDING ME???
25
“Occurrences”: Determining Factors
Policy Wordings
The “Cause” Test
External Factors
26
26
Dual Policy Role of “Occurrence”
• “Occurrence” plays two separate roles
in CGL or excess policy
1. Insuring Agreement
– BI/PD must result from an “occurrence”
– “Occurrence” is basis for insured’s liability
2. Limits of Liability
– Exposure to similar conditions is one “occurrence”
– “Occurrence” is cap on insurer’s liability
27
27
Don’t Confuse the “Occurrence” with the
“Trigger” of Coverage
“Occurrence” is not the trigger of coverage.
“Occurrence” is the act of the insured (the accident,
event or conditions) that results in injury.
– Cause
It is the resulting injury during the policy period that
triggers coverage.
– Effect
28
28
I.
Policy Wordings
• “Occurrence” Definitions
– Standard CGL: “Conditions”
– Non-Standard: “Happenings and Events”
• Aggregates
• Non-Cumulation and Deemer Clauses
29
29
“Exposure To Conditions”
• “For the purpose of determining the company's
liability, all bodily injury and property damage
arising out of continuous or repeated exposure
to substantially the same general conditions
shall be considered as arising out of one
occurrence.”
30
30
“Conditions” Refers to Cause of Injury, Not
Basis for Liability
• Koikos v. Travelers, 849 So.2d 263 (Fla. 2003)
– Florida Supreme Court rejected Travelers’ argument that
insured’s negligence was “conditions”:
• “The ‘continuous or repeated exposure’ language does not
restrict the definition of ‘occurrence’ but rather expands it
by including ongoing and slowly developing injuries, such
as those in the field of toxic torts….The victims were not
“exposed” to the negligent failure to provide security. If the
victims were “exposed” to anything, it was the bullets fired
from the intruder’s gun.”
31
31
II.
Measuring “Occurrences”
• The “Effect” Test
– Focus is on the number of persons or property damaged by
insured’s act or omission
– Ostensibly the minority approach nowadays
• The “Cause” Test/Majority Approach
– Do diverse injuries or claims share a common cause?
• “Unfortunate Event” Test/Lemony Snicket Rule
– Would ordinary insured view diverse claims and injuries as
involving a single “unfortunate event”?
– Principally followed in New York
32
32
What Does “Cause” Mean?
• While most states use a “cause” approach, it has
often proven to be an elastic and result-oriented
tool.
• Does “cause” mean?
– The “cause” of the insured’s liabilities; or
– The “cause” of the plaintiffs’ injuries?
33
33
“Remote” v. “Immediate” Causes
• No distinction between cause of injury and liability
where insured is immediate, physical cause of loss
(e.g. auto accident).
• Issues arise, however, where insured is “remote”
from accident, as where insured is product
manufacturer or distributor or is sued for
misconduct of others.
34
34
III. External Factors
• Role of Insured
• Circumstances of Loss
• Coverage Profile
35
35
1.
Role of Insured
• Immediate or remote actor?
• Was the insured present at the scene?
• Other intervening causes?
36
36
2.
Circumstances of Loss
• Injurious Mechanism
– Did all the injuries result from a single on-going
physical process or continuum (e.g. fire, flood)?
• Proximity:
– Did injuries occur around the same time and place?
37
37
3.
Coverage Profile
• Do policies have SIRs or deductibles?
– If so, insured is more likely to argue that diverse
losses arise out of one “occurrence.”
• Are the limits enough to satisfy the claims?
– If not, insured is likely to press primary insurer to
accept claims as separate “occurrences.”
38
38
IV. “Occurrence” Claim Types
39
39
Issue Cuts Across Diverse Claims
•
•
•
•
•
•
•
•
•
Asbestos
Auto
Construction Defect
Environmental
Food
Molestation
Premises Liability
Products Claims
Shootings
40
40
A User’s Guide
• You have to look at the facts
• Don’t jump to assumptions
• Be creative, but don’t be foolish
• There is More to the Issue than Just the “Bottom
Line”
41
And Always Remember
• To Bring Your Moral Compass
42
ASBESTOS CLAIMS
43
43
One Occurrence:
“Cause” = Manufacturing
• Colt Industries (high “per occurrence” deductibles)
• Morton-Thiokol (retrospective premiums)
• Treesdale (pro-Insurer)
• Owens-Illinois (marketing of products)
44
44
The Alternative View:
Each Individual Claimant is a
Separate “Occurrence”
• LMI v. Superior Court, 53 Cal. Rptr. 3d 154
(Ct. App. 2007)(rejects “remote cause”
analysis)
• Met Life v. Aetna, 765 A. 2d 891 (Conn.
2001) (“cause” of injuries was each
claimant’s exposure to asbestos fibers)
45
45
The Dramatic Impact
• Appalachian Ins. v. GE, 863 N.E. 2d 994 (N.Y.
2007)
– Each worker = one “occurrence”
– Self-insured primary layer -- no aggregates
– NO RECOVERY FROM EXCESS PROGRAM
46
46
The Pendulum Swings
• Plastics Engineering v. Liberty Mutual, 759
N.W. 2d 613 (Wis. 2009)
– Each claimant = separate occurrence
– Liberty pays through the nose
– Primary and excess/no aggregate
47
47
Building Claims Too
• Stonewall v. Asbestos Claims Mgt., 73 F.3d 1178
(2d Cir. 1995)
– Decision to manufacture wallboard not the “occurrence”
– Each individual installation = “occurrence”
– Policies had a high “per occurrence” deductible
48
48
But GE Doesn’t Solve the Problem
• Mt. McKinley Ins. Co. v. Corning, Inc.,
946 N.Y.S.2d 136 (1st Dept. 2012)
• Revisits the issue concerning number of
“occurrences” that was the subject of the Court of
Appeals’ decision in Appalachian Ins. Co. v.
General Elec. Co., 8 N.Y. 3d 162 (2007)
49
Framing the Dispute
• Insurers moved for a declaration that each of the
asbestos-related claims at issue constituted a
separate “occurrence” under the policies.
• Underlying claims arose from two different products:
– Paper-like spacer material used in construction of steel
mills
– Unibestos, an asbestos-containing piping insulation
50
51
The Arguments
• Focus of the dispute was whether a separate
deductible would apply to each of the subject
claims.
• Under Appalachian, New York courts apply the
“unfortunate event test.”
• However, parties are free to group incidents based
upon other approaches.
52
The Policy Language
• “For purposes of determining the limit of the
company’s liability, all bodily injury or property
damage arising out of continuous or repeated
exposure to substantially the same general
conditions shall be considered as arising out of one
occurrence.”
• Indicates an intent that certain types of similar
claims be grouped or combined.
53
The Result
• Court concluded that the record was not sufficiently
developed to resolve the issue on summary
judgment.
• Exposures emanating from the same location at a
substantially similar time will be considered a single
occurrence.
54
The Conclusion
• While thousands of claims clearly are not a single
occurrence, “any group of claims arising from
exposure to an asbestos condition at a common
location, at approximately the same time (for
example, at the same steel mill or factory), may be
found to have arisen from the same occurrence.”
• IN OTHER WORDS, IT ALL DEPENDS
55
CLERGY ABUSE
56
Diocese of Brooklyn v. National Union,
991 N.E.2d 666 (N.Y. 2013)
• Single plaintiff
• Multiple incidents of abuse over 6 year period
• Church seeks reimbursement of $2M settlement
57
Diocese of Brooklyn
• Sought coverage under two policy years
• Insurer seeks a ruling that each incident of abuse is
a separate “occurrence” that triggers a separate
SIR of $250,000
• New York follows the “unfortunate events” test
58
Diocese of Brooklyn
• “Here, nothing in the language of the policies, nor
the definition of ‘occurrence,’ evinces an intent to
aggregate the incidents of sexual abuse into a
single occurrence. . .Applying the unfortunate event
test we conclude that the incidents of sexual abuse
constituted multiple occurrences. Clearly, incidents
of sexual abuse that spanned a six-year period lack
the requisite temporal and spatial closeness to join
the incidents.”
59
Construction Defect Claims
Contractors
Distributors
Manufacturers
60
60
Case Example No. 1
Manufacturers
• Manufacturer sold Periclase plaster product.
• Bills of lading said “For Exterior Use Only” but no similar warning
on product container.
• Contractors installed product on interiors of dozens of homes,
causing stains and blemish to 28 of them.
• Primary insurer argued “cause” was defective product.
• Excess carrier (Wausau) argued that since not all homes suffered
damage, injury not inevitable and therefore each of the 28
applications that did cause injury was the direct “cause” of the
insured’s liabilities.
• So was it one “occurrence” or twenty-eight?
61
61
And The Answer Is…
• One.
• Chemstar v. Liberty Mutual, 41 F.3d 429 (9th Cir. 1994)
(California law)
– Ninth Circuit ruled that there was no intervening proximate
cause after insured’s failure to warn.
• Southern Int’l Corp. v. Poly-Urethane Ind., Inc., 353
So.2d 646 (Fla. App. 1977)
– Negligent application of insured’s roof sealing product to
numerous buildings held one ”occurrence”.
• Damage due to product, not application.
62
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Case Example No. 2
• Product manufacturer or distributor sued for
construction defect problems associated with
installation of its product in homes.
• Is “occurrence” the installation of the defective
product or a defect in the design or manufacture
of the product itself?
63
63
And The Answer Is…
• One.
• Owners Ins. Co. v. Salmonsen, 622 S.E.2d 525 (S.C.
2005)
– Class action filed against distributor of “Parex,” a synthetic
stucco product that caused water intrusion to plaintiffs’
homes.
– S. C. Supreme Court ruled that class members’ claims arose
out of a single “occurrence” as they were all based on the
distribution of an inherently defective product and not
because of the negligent distribution of otherwise
satisfactory goods.
– “Placing a defective product into the stream of commerce is
one occurrence”
64
64
Clear? Not Just Yet…
• New York courts have held in asbestos cases that it is the
installation of insured’s product into a building that is the
“occurrence”
– Stonewall Ins. Co. v. Asbestos Claims Management, 73 F.3d
1178 (2d Cir. 1995)(insurable "occurrence" was not the
manufacturer's "general decision" to manufacture wallboard
containing asbestos but rather each installation of those
wallboards).
– Maryland Cas. Co. v. W.R. Grace and Co., 128 F.3d 794, 799 (2d
Cir. 1997) (each installation of asbestos material in a building was
a separate "occurrence“)
65
65
Case Example No. 3
Contractors
• After three separate heavy rainstorms, sewage backed up
into numerous homeowners’ properties, resulting in claims
against the City for failing to properly maintain the
municipal drainage system.
• Primary insurer contended that the number of
"occurrences" should be determined by reference to the
number of storms.
• City argued that the court should look to the specific
circumstances of each citizens' claim.
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And The Answer Is…
• Neither.
• Home Ind. Co. v. City of Mobile, 749 F. 2d 659 (11th Cir.
1984)(Alabama law).
– 11th Circuit adopted an intermediate position, holding that each
discrete causative act of negligence was a separate "occurrence“
no matter how many individual properties were damaged as a
result.
• Bethpage Water District v. S. Zara & Sons, 546 N.Y.S.2d 645,
154 A.D.2d 645 (2nd Dept. 1989)
– Contractor’s negligent backfilling damaged 250 parts of water main
system.
– Appellate Division of the New York Supreme Court held that claims
all involved exposure to "substantially the same general
conditions.”
– Note that this result benefited insured since it was only required
to pay a single deductible.
67
67
Clear? Not Just Yet…
• Courts may find separate “occurrences” if damage was due to
defective work that differs from site to site rather than defect in
construction product.
– U.S. Fire v. Safeco Ins. Co., 444 So.2d 844 (Ala. 1983)
• Roof leaked over time due to cracks and deterioration
• Contractor repaired but left section unroofed, causing
further leakage.
• Alabama Supreme Court held that failure to maintain roof
and contractor's subsequent failure to fix roof were
separate "causes.”
68
68
Premises Liability
Photo of bar
69
69
Case Example No. 1
• Plaintiff that had leased space over nightclub, filed suit
against landlord complaining that loud music over period
of months was a breach of lease’s covenant of quiet
enjoyment and habitability.
• Are number of “occurrences” determined by:
–
–
–
–
Breach of the lease covenant?
Overall noise experience?
Individual noisy performances?
Repeated encores of “Stairway to Heaven”?
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And The Answer Is???
• One
• Peck v. Public Service Mut. Ins. Co., 363 F.
Supp. 2d 137 (D. Conn. March 24, 2005)
– Judge ruled that on-going exposure to noise from
insured’s nightclub involved exposure to similar
conditions.
71
71
Case Example No. 2
• After two unruly patrons were ejected from the
insured’s bar, one went to his car and, returning
with a gun, shot the other patron.
• Estate sued the bar for dram shop violations and
for failing to provide safety.
• Was the fight inside the bar part of the same
“occurrence”?
72
72
And The Answer Is???
• One.
• Continental Ins. Co. v. Hancock, 507 S.W.2d 146
(Ky. 1973)
• Kentucky Supreme Court ruled that fight outside
the bar was a continuation of the brawl that had
begun inside and therefore arose out of the same
“occurrence.”
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73
Case Example No. 3
• Father tore rotator cuff while running to save his
boy, who was being mauled by neighbor’s dog.
• Father and son sued for bite wounds and shoulder
surgery based on insured’s failure to contain the
dog.
• One occurrence or two?
74
74
And The Answer Is???
• Two.
• Hodgson v. Bremen Farmers Mut., 3 P.2d 1281 (Kan.
App. 1999)
– Court finds that father and son suffered injures due to two different
causes.
– Rejects insurer’s argument that father’s injury would not have
occurred but for emergency suffered by son.
But see:
• Doria v. INA, 509 A.2d 220 (N.J. Super. 1986)
(incident in which two boys drowned while one tried to save the other
arose out of the same “occurrence”).
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Case Example No. 4
• Insured owned a swimming pool that he failed to
secure.
• A neighbor’s child fell in the pool, while taking a
shortcut across the property.
• His friend also drowned while trying to save his
companion.
• One occurrence or two?
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And The Answer Is?
• One.
• In Doria v. INA, 210 N.J. Super. 67, 509 A.2d 220
(1986), the Appellate Division ruled that injuries to
two boys arose out of one “occurrence” where harm
resulted from same cause and was closely linked in
time and space.
77
77
But Not So Fast…
• What if the circumstances of the loss are unknown?
– Addison Ins. Co. v. Fay, 905 N.E.2d 747 (Ill. 2009)
• Two boys died of hypothermia in wet sand on a
neighbor’s property.
• While stating that the two deaths might well have involved
a single “occurrence” if the injuries had occurred closely
together in time and space, the court found that it was
impossible to prove how the boys died.
• As the insurer had failed in its burden of proof, the Illinois
Supreme Court held that the claims must be treated as
involving separate “occurrences.”
78
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Products Claims
79
79
Batch Clauses
• Older policies provided that losses involving a
single lot or “batch” of the insured’s products are
one “occurrence.”
• Controversy persists as to whether these clauses
only apply to defective manufacture or should also
extend to design defect or inherently dangerous
products.
80
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Current (Bermuda) Forms: Integrated
“Occurrence” Clauses
• Allows insured to designate common claims from
a product as single “occurrence” even if injuries
span multiple periods.
• But limited to that specific policy year.
81
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Proposed “Causes” of Products Claims
• Insured Manufacturer’s Decision To Market Defective
Product or Failure to Warn of Dangers Posed By
Dangerous/Defective Product
– One “occurrence” per type of product
• Plaintiffs Injured Under Similar Circumstances
– One “occurrence” per year
• Individual Circumstances of Disease or Injury
– One “occurrence” per plaintiff.
82
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Single “Occurrence” Rationale
• These are “occurrence” policies.
• Business purpose of policy is to provide coverage for
what insured did or didn’t do.
• Circumstances beyond insured’s control
shouldn’t determine availability of coverage.
• Where insured is a “remote actor” (e.g. manufacturer),
what was last act over which insured had any control:
– Decision to manufacture
– Failure to warn
83
83
Multiple “Occurrence” Rationale
• “Causes” of tort claimant’s injuries are too
dissimilar; dispersed in time, place and manner of
injury to be grouped together.
• Focus should be on the manner in which each
individual was injured.
• Is there a “signature” injury?
84
84
Case Example No. 1
• Cows died after insured sold farmers cattle feed into
which he had accidentally mixed PBB fire retardant
instead of feed supplement.
85
85
Should number of “occurrences” be determined
by:
–
–
–
–
Number of dead cows?
Number of unhappy farmers?
Number of shipments?
Defective product?
86
86
And The Answer Is?
• Number of shipments.
• Michigan Chemical Corp. v. American Home Assur. Corp.,
728 F.2d 374 (6th Cir. 1984)
• Sixth Circuit ruled that because PBB had been introduced
into some shipments and not others, it was the individual
shipments of contaminated cattle feed by the
manufacturer that were the cause.
87
87
Case Example No. 2
• Insured sold contaminated bird seed to eight dealers, who
in turn sold the seed to numerous individual pet owners.
• Should number of “occurrences” be determined by
–
–
–
–
Number of dead birds?
Distributors’ sales to bird dealers?
Insured’s sales to distributors”
Defective product?
88
88
And The Answer Is?
• Insured’s sales to distributors (8).
• Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447
F.2d 204 (5th Cir. 1971).
– Fifth Circuit ruled in Louisiana case that governing “cause” was
insured’s sales to dealers since that was the last event over
which the insured had any control.
– Focus is on “cause” of the insured’s liability, not cause of birds’
deaths.
89
89
Manufacturer Claims
• Claims against manufacturers are more likely to be treated
as one “occurrence” where based on something intrinsic to
the product itself.
• Cargill, Inc. v. Liberty Mutual Ins. Co., 488 F. Supp. 49 (D.
Minn. 1979), aff’d, 621 F.2d 275 (8th Cir. 1980)
– Multiple sales of contaminated nutrient medium were held to
constitute one “occurrence” based on theory that all the ensuing
claims were caused by a change in the nutrient formula.
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90
Consistency Isn’t The Problem
• Dow Chemical Corp. v. Associated Indemnity Corp., 727 F.
Supp. 1524 (E.D. Mich. 1989)
– Property damage arising out of the installation of “Sarabond” mortar
product in buildings. Judge Churchill ruled that each installation of
Sarabond in a separate building was a separate “occurrence” since
the manner of injury occurred differed from site to site.
• Associated Indemnity Corporation v. Dow Chemical, 814 F.
Supp. 613 (E.D. Mich. 1993).
– Defects in one of Dow’s resin products required the replacement of
a vast natural gas pipeline network. Judge Churchill ruled that the
claims arose from an inherently defective product, so one
“occurrence.”
91
91
Environmental Claims
92
92
Relevant Scenarios
• Sources of Contamination
• Number of Sites
• Identity of Claimants
93
93
Certain Underwriters at Lloyd’s v.
Southern Natural Gas,
2013 WL 324933 (Alabama 6/28/13)
• PCB contamination due to spills of fluids at 13 of 38
stations operated with gas pipeline from TX to GA
• One “occurrence”
• One pipeline = one cause
• Impacts were disparate over time and location
94
Single Site Claims
• Separate Spill Incidents
• Types of Pollutants
• Separate Operating Units
• Discrete Areas of Contamination
95
95
Case Examples
• Northern States Power v. Fidelity & Casualty Co.
of N.Y, 523 N.W. 2d 657 (Minn. 1994): Repeated
discharges over time = one “occurrence”
• FMC v. Plaisted, 61 Cal. App. 4th 1132 (Cal. Dist.
1998): Site as a whole is a single occurrence
96
96
More Cases
• Boston Gas Co., d/b/a/ KeySpan Energy New
England v. Century Indemnity, No. 02-12062 RXZ
(D. Mass. 2005): Rejects sub-site analysis
• Alcoa v. Aetna, 998 P.2d 856 (Wash. 2000):
Different areas = different occurrences
97
Multiple Site Claims
Can multiple sites be aggregated based on:
•
•
•
•
Disposal of specific chemical
Trans-shipments between sites
EPA treatment as a single investigation
Common ownership or operation
98
98
Case Examples
• Con Ed v. Employer’s Insurance of Wausau, 1997
U.S. Dist. Lexis 18486 (S.D. N.Y 1997): Rejects
claim that pollution at separate sites can be
aggregated even though EPA linked the sites and
they were resolved under a single Consent Decree.
• “Unfortunate event” test does not apply where sites
are geographically separate.
99
99
More Dirty Deeds
• DuPont v. Allstate, 693 A. 2d 1059 (Del. 1997):
Manufacturing facility and off-site landfill are not a single
“occurrence”
• Endicott Johnson v. Liberty Mutual, 928 F. Supp. 176 (N.D.
N.Y. 1996): Dumping at each site is a separate
“occurrence”
• Domtar v. Niagara Fire Ins. Co., 563 N.W. 2d 724 (Minn.
1997): Rejects claim that six sites should be aggregated as
an integrated business unit
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Insurers Do it Too
• Indiana Gas Co. v. Aetna, 951 F. Supp. 773 (N.D.
Ind. 1996):
– Rejects insurer’s claim that MGP sites should be
aggregated on the basis of a common “cause” so as to
limit coverage to a single policy
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General Rule
One Site = One Occurrence
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In Conclusion
• Case law construing the number of “occurrences” is for the
most part:
1. Confusing
2. Extremely fact specific
3. Result oriented
4. Inconsistent even within individual states
5. All of the above
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How Do You Avoid the Landmines
• You Have to Consider More than Just the “Bottom
Line”
• Focus on the Facts, Not Just Legal Theories
• Trying to “Maximize” or “Minimize” Coverage is Not
Always the Best Bet
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You Need A Moral Compass
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Don’t Come in Like a Wrecking Ball
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And The Answer Is???
Questions
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