One Occurrence or Multiple Occurrences as a Result of Winter Weather Damage
This matter came before the court on cross motions for summary judgment. The question involved the weather and whether the winter of 2006 – 2007 constituted one occurrence or multiple occurrences. This case is Western & Clay, LLC v. Landmark American Insurance Company, 2010 WL 4855879 (W.D.Wash.).
Landmark American Insurance Company issued first-party insurance policies to Western & Clay that provided coverage for one loss or series of losses arising out of one occurrence. Western & Clay submitted a proof of loss for a claim that the winter of 2006 – 2007 caused substantial delay and costs in a large construction project. The insured claimed that the cause of the weather damage was a combination of events involving wind and rain storms. The insured claimed that the weather was one occurrence and thus subject to only one deductible and one 30-day waiting period. The insurer said that the alleged losses constituted multiple occurrences because, with regard to the weather, the term “occurrence” has an implicit temporal, spatial, and causal limitation.
The court noted that the word “occurrence” is not defined in the policies. Therefore, the court chose to analyze the plain, ordinary, and popular meaning by consulting the dictionary. An occurrence is defined in the dictionary as something that takes place or comes about, and the court found this to be synonymous with an event or incident. Any temporal limitation can only be determined with regard to the specific occurrence and context of that occurrence.
As to whether this claim involved one occurrence or multiple occurrences, the court recognized that the insured advanced several theories as to how the 2006 – 2007 winter was one occurrence, and the insurer presented two expert reports that stated there were multiple occurrences since there were multiple storms throughout the winter. However, the court found that neither party demonstrated a right to relief as a matter of law. Moreover, material facts remained in dispute as to whether the insured's weather claim included one or more occurrences. So, the court said it was unable to rule as a matter of law or fact just how many occurrences constituted the claim. The parties to the dispute had to present the issue to a fact finder, that is, a jury.
The court in essence made no decision in this case and said it was up to a jury to decide the dispute over one occurrence versus multiple occurrences.
Editor's Note: Courts continue to face disputes between insureds and insurers over whether a claim involves one occurrence or multiple occurrences. The resolution of this dispute can decide the amount the insurer will pay on a claim and the amount the insured will have to pay as his deductible. Moreover, the aggregate limits of insurance in the policy will be affected by the number of occurrences. So, it is interesting that a question of such importance is left by this court to a jury to answer. The U.S. District Court in Washington simply said that it was unable to rule on the issue. A court very seldom lets the lack of a definition in an insurance policy stop it from interpreting the meaning of the policy and arriving at a coverage decision, but that is what “occurred” in this instance.