In Kosnoski, et. al. v. Rogers, et. al., Case No. 13-0494 (2/18/14), the West Virginia Supreme Court of Appeals recently held that two different incidents of exposure to carbon monoxide poisoning arose from the same “occurrence” because the respective bodily injury and death resulted from the same “continuous or repeated exposure to substantially the same general harmful conditions.”
Facts and Lower Court Decision
Kosnoski involved two instances of carbon monoxide poisoning in two different apartments in the same building from the same source – a gas boiler furnace in the basement of the apartment complex. Both incidents took place within an apparent 12-hour time period on September 4–5, 2014. A coverage dispute arose over whether the two episodes of carbon monoxide poisoning constituted separate occurrences to which separate limits of liability applied. In the ensuing coverage litigation, the Circuit Court of Monongalia County trial court granted summary judgment for the carrier that (1) there was only one event and only one cause and (2) the number of persons who were injured was of no consequence. The court found that the “occurrence” definition in the policy was clear and unambiguous in that the injury and death resulted from the same “continuous or repeated exposure to substantially the same general harmful conditions.”
Applying that wording here, the court decided that two instances of carbon monoxide exposure that happened in two different apartments in the same apartment complex during the same general time frame (evening hours for one and early morning hours for the other) and from the same furnace constituted one occurrence and were subject to a single limit of liability.
West Virginia Supreme Court Decision
The West Virginia Supreme Court of Appeals affirmed the trial court’s granting of summary judgment to the insurer. In reaching its decision, the Kosnoski court relied on its prior decision in Shamblin v. Nationwide Mutual Ins. Co., 332 S.E. 20, 639 (W.Va.1985) and held that the definition of “occurrence” was clear and unambiguous, further noting that the determining factor was “the resulting event for which the insured becomes liable and [is] not to some antecedent cause(s) of the injury.” (Emphasis added.)
Applying this test here, the West Virginia high court ruled as follows: Even though the underlying carbon monoxide exposure claims stemmed from separate incidents of injury that happened at different times in “legally and factually separate places,” the source of the release was the same gas boiler furnace in the basement of the apartment complex that provided heat to the two apartments that were the subject of the underlying claims. Thus, the court held that for coverage purposes the carbon monoxide exposure injuries arose from the “same general harmful conditions.” As such, they arose from one occurrence and were subject to a single per-occurrence limit of liability.
The Kosnoski decision provides two readily apparent takeaways. First, at least in terms of applying the definition of “occurrence,” West Virginia’s highest court still maintains that clear and unambiguous policy provisions, including limitations to coverage, must be applied as written, despite the advancement of alternative interpretations.
Second, when quantifying the number of occurrences, West Virginia courts are required to look to the originating cause of injuries. Necessarily, this is a case-by-case inquiry that will vary depending on the relevant time and space considerations of the underlying facts. Nevertheless, where, as here, the underlying injuries arose from a single source (carbon monoxide leakage from a gas boiler in the basement of the apartment complex) and are close in time (a day apart), the fact that the injuries happened at different locations (two apartments in the same complex) to different persons will not, or should not, create an argument that there was more than one occurrence so as to increase the available limits of liability of coverage.