Of all the insurance coverage questions I hear, the most frequent is one that is presented in Allstate Ins. Co. v. Cameron, 2006 WL 314337 (W.D.Wash. February 8, 2006). The issue is whether injury or property damage occurs at the time some event sets it in motion, or instead when the injury or damage becomes evident. In the case, a man and some friends were partying in 1998, when one of the friends allegedly smashed a beer mug into the head of another person named Glenston Anderson, who went into a coma for six years. Anderson died in 2004, and the most likely cause, according to the medical examiner, was the original blow to the head.
A lawsuit against the party’s host and his mother alleged they were liable for the battery on Anderson. The complicating issue in the case was that there was no insurance at the time Anderson was hit on the head, but the mother did have homeowners’ insurance from Allstate at the time Anderson died. She requested Allstate defend and indemnify her and her son. Allstate brought a declaratory action seeking a ruling of non-coverage.
Generally, an act or event itself is not the “occurrence” in a so-called occurrence policy. Homeowners’ policies are occurrence policies, meaning coverage exists only if there is an occurrence, which the policies basically define as an accident that produces bodily injury or property damage within the policy period. Occurrence policies constitute the majority of insurance policies in existence today, and have a long history of use back to the first days of commercial insurance in Europe centuries ago. However, the tort system has changed a great deal in 300 years, and long-tail liability, which was previously unknown, is common today. This can present difficulties in determining when the occurrence happened in construction defect, environmental pollution and toxic torts, among others.
On a 1-10 scale of possible complexities regarding when an occurrence happened, this case is about a 2.7. The judge held that the original battery on Anderson constituted the occurrence, because that is when the bodily injury happened. The fact that the lawsuit was not filed until after he died goes to the issue of when a wrongful death cause of action accrued against the defendants, and is not directly relevant to the language of the insurance contract. The court found no duty to defend or indemnify.