Illinois Appeals Court Declines To Extend “Time and Space Test” For Determining Number Of Occurrences To Cases Involving Single Negligent Act
In a recent decision, an Illinois appellate court determined that the collapse of a porch, resulting in injury or death to more than forty individuals, constituted a single “occurrence” for the purposes of determining coverage under a commercial general liability insurance policy. With this decision, the court recognized an important limitation on the applicability of a test previously adopted by the state’s Supreme Court for determining the number of occurrences implicated by a claim. The case is Ware v. First Specialty Ins. Corp.
, No. 1-11-3340. A copy of the decision is available here
The insurance policy at issue, which provided coverage for “bodily injury,” contained limits of liability of $1 million per occurrence and $2 million in the aggregate. The policy defined occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The insurer, First Specialty Insurance Corporation, argued that because all of the victims’ injuries resulted from a single cause, the collapse of the porch, the incident constituted one occurrence. The victims and their estates, who had obtained an assignment of rights against the insurer, argued that the injuries constituted more than one occurrence because several individual victims’ injuries did not manifest themselves for days or weeks after the collapse.
Affirming the decision of the lower court, the appellate court held that because the collapse was the sole cause of the victims’ injuries and deaths, and because the policy defined “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these [at] any time
,” the victims’ injuries and deaths were the result of a single occurrence. The court found that this result was mandated by the clear and unambiguous terms of the policy.
The court further found that it would have reached the same conclusion even if it had looked beyond the clear language of the policy. The court explained that where the terms of an insurance policy do not permit a definitive determination as to the number of occurrences implicated by a claim, Illinois courts apply the “cause theory,” under which a court considers how many separate events or conditions led to a party’s injuries. The court found that under the cause theory, the collapse of the porch constituted only one occurrence because all of the victims’ injuries emanated from a discrete incident, the collapse of the porch. In reaching this conclusion, the court rejected the plaintiffs’ argument that it should have applied the “time and space test” articulated by the Supreme Court of Illinois in Addison Ins. Co. v. Fay
, 232 Ill. 2d 446 (2009) to determine the number of occurrences implicated by the claim. Under the “time and space test,” a court considers whether the injuries and their cause are so closely linked in time and space as to be considered one event. The Ware court declined to apply the test, observing that the “time and space test” is reserved for circumstances in which multiple injuries are sustained over a period of time due to an ongoing negligent omission.