An Occurrence Requires Fortuity
A Video Explaining The Need to Prove an Occurrence
Posted on June 7, 2021 by Barry Zalma
See the full video at https://rumble.com/vi175t-an-occurrence-requires-fortuity.html and at https://zalma.com/blog and below.
An “occurrence” is usually defined as accidental loss or damage which results, during the policy period, in bodily injury or property damage.
In Green v. State Farm Fire & Casualty Co. 127 P.3d 1279, 2005 UT App 564 (Utah App. 12/30/2005) a homeowner sued the insured developer after he sustained property damages as a result of a landslide. At the time of the landslide, the developer held a contractor/builder’s risk insurance policy issued by State Farm. The developer initiated a declaratory judgment action against State Farm, seeking defense and indemnification under the policy.
It should be axiomatic in all third party liability cases that before there can be a duty to defend there must be an occurrence or accident so that the events sued upon are fortuitous. In some states, the pleading controls the decision on coverage, as in Utah, while in others, like California, the insurer is obligated to look beyond the complaint to extrinsic facts.
In Automobile Insurance Co. of Hartford v. Cook, 21 A.D.3d 1155, 801 N.Y.S.2d 837 (2005) the court was faced with the legal question of whether an individual’s homeowner’s insurance policy affords coverage when that individual is sued for wrongful death after killing a person in self-defense. On February 20, 2002, defendant Alfred S. Cook shot and killed Richard A. Barber, the decedent, after a disagreement over a business arrangement spun out of control. The decedent had entered Cook’s home without permission. During their discussions, Cook, armed with a handgun, retreated to his bedroom to retrieve a 12-gauge shotgun and then returned to the living room, where the fatal confrontation occurred.
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© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/ podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4