The Second Circuit affirmed the finding of three occurrences in a highway accident after applying the unfortunate event test. Nat'l Liability & Fire Ins. Co. v. Itzkowitz, 2015 U.S. App. LEXIS 16387 (2nd Cir. Sept. 15, 2015). A dump box attached to a dump truck struck and damaged an overpass. The dump box then separated from the truck and landed in the right lane of the highway. Some thirty seconds to five minutes later, the Itzkowitz vehicle struck the detached dump box. Then, at some point between a few seconds and twenty minutes later, the Hershkowitz (second) vehicle struck the dump box. The insurer for the dump truck owner, National, argued there was one accident, or at most two separate accidents, under the policy. The district court found there were three occurrences and National appealed. The Second Circuit noted that under New York law, absent policy language indicating an intent to aggregate separate incidents into a single occurrence, the unfortunate event test applied to determine how many occurrences there were. The test involved a two-part inquiry. First, the operative incident giving rise to the liability was identified. Second, the court considered whether there was a close temporal and spatial relationship between the incidents, and whether the incidents could be viewed as part of the same causal continuum, without intervening factors. National argued that the policy language providing that "all 'bodily injury' and 'property damage' . . . resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one 'accident'" indicated an intent to aggregate separate accidents into a single occurrence. But both the New York Court of Appeals and the Second Circuit had applied the unfortunate event test when considering the same policy language. Therefore, applying the unfortunate event test, the court first determined that each collision was a separate operative incident. Further, although the incidents occurred close in time, nothing suggested that the narrow time span between each incident played a role in causing any of the other incidents. The spatial proximity of the events presented a closer question. The dump box striking the overpass occurred at a different location from where the Itzkowitz vehicle struck the dump box. The second and third incidents, however, were spatially proximate. The two collisions with the dump box occurred at virtually identical spots and involved the same dump box. This was not the end of the analysis, however. The unfortunate event test did not dictate that separate incidents were part of the same accident if they met any one of the three criteria - spatial proximity, temporal proximity, or occurrence in a causal continuum. Rather, the test reflected a "common sense" balancing of the three elements. Therefore, the court looked to whether there was an "unbroken" continuum between the events. The dump box striking the overpass was not responsible for the second and third incidents. For example, the first incident did not weaken the overpass's structure in a way that caused further injury. Rather, the dump box was released and came to a stop on the highway. Then, after thirty seconds passed, the Itzkowitz vehicle struck the dump box. This was distinct from the dump box striking the overpass. Finally, the Hershkowitz vehicle struck the dump box, and this collision was unrelated to the preceding collision involving the Itzkowitz vehicle. Therefore, applying the unfortunate event test, there were three separate accidents under the National policy.
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