NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellant, v. AARON ITZKOWITZ, BENJAMIN ITZKOWITZ, MAYER ITZKOWITZ, YEHUDA ITZKOWITZ, JOSEPH ITZKOWITZ, infants by their Mother and Natural Guardian, SHERON ITZKOWITZ, and SHERON ITZKOWITZ, individually, Defendants-Counter-Claimants-Appellees, ASHER COMPTON, MOSHE COMPTON, ADINA COMPTON, infants by their Mother and Natural Guardian, BLEEME COMPTON, and BLEEME COMPTON, individually, AVROHOM HERSHKOWITZ, an infant by his Father and Natural Guardian, YOSEF HERSHKOWITZ, and YOSEF HERSHKOWITZ, individually, THE NEW YORK STATE THRUWAY AUTHORITY CORPORATION, VILLAGER CONSTRUCTION, INCORPORATED, MAX ITZKOWITZ, YOSEF D. COMPTON, MADISON TITLE AGENCY, LLC, Defendants-Appellees
No. 14-3651-cv
United States Court of Appeals, Second Circuit
Sept. 15, 2015
Amended Sept. 22, 2015
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No. 14-3651-cv.
United States Court of Appeals, Second Circuit.
Sept. 15, 2015.
Amended Sept. 22, 2015.
NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellant,
v.
Aaron ITZKOWITZ, Benjamin Itzkowitz, Mayer Itzkowitz, Yehuda Itzkowitz, Joseph Itzkowitz, infants by their Mother and Natural Guardian, Sheron Itzkowitz, and Sheron Itzkowitz, individually, Defendants-Counter-Claimants-Appellees,
Asher Compton, Moshe Compton, Adina Compton, infants by their Mother and Natural Guardian, Bleeme Compton, and Bleeme Compton, individually, Avrohom Hershkowitz, an infant by his Father and Natural Guardian, Yosef Hershkowitz, and Yosef Hershkowitz, individually, The New York State Thruway Authority Corporation, Villager Construction, Incorporated, Max Itzkowitz, Yosef D. Comptоn, Madison Title Agency, LLC, Defendants-Appellees,
*The Clerk of the Court is directed to amend the caption to conform to the above.
AMENDED SUMMARY ORDER
Plaintiff-Appellant National Liability & Fire Insurance Company (“National”) appeals from a final judgment entered on September 8, 2014, by the United Statеs District Court for the Eastern District of New York (Chen, J.), which granted the defendants’ motion for summary judgment. The question on appeal is whether the district court erred in determining that a series of events occurring on Interstate 90 constituted three separate “accidents” for the purposes of the National insurance policy at issue. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
We review de novo a district court’s grant of summary judgment, see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010), as well as its interpretation of contracts, including insurance agreements, see Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co., 702 F.3d 118, 121 (2d Cir.2012). Our interpretation of the insuranсe policy is governed by New York law.
The policy at issue provides in relevant part:
Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for the total of all damages ... resulting from any one “accident” is the Limit of Insurance for Liability Coverage shown in the Declarations. All “bodily injury” [and] “property damage” ... resulting from continuous or repeated exposure to substantially the same conditions will be
Although the parties dispute the exact chronology of the events at issue, it is undisputed that the relevant series of events began when a dump box attached to a dump truck struck and damaged an overpass owned by the Defendant-Appellee New York State Thruway Authority. After hitting the overpass, the dump box separated from the truck and landed in the right lane of the highway. Between thirty seconds and five minutes later, the vehicle occupied by the “Itzkowitz claimants” (driver Max Itzkowitz and passengers Aaron, Benjamin, Mayer, Yehuda, Joseph, and Sheron Itzkowitz) struck the detached dump box. And then, at some point between a few seconds and twenty minutes later, the vehicle occupied by the “Compton-Hershkowitz claimants” (driver Yosef Compton and passengers Asher, Moshe, Adina, and Bleeme Compton, as well as Avrohom and Yosef Hershkowitz) struck the same detached dump box. National argues that this series of events constituted one accident, or at most two separate accidents, under the policy. The defendants disagree, arguing that the district court correctly determined that three accidents occurred.
Under New York law, “absent policy language indicating an intent to aggregate separate incidents into a single occurrence, the unfortunate event test should be applied to determine how occurrences are categorized for insurance coverage purposes.” Roman Catholic Diocese v. Nat‘l Union Fire Ins. Co., 21 N.Y.3d 139, 969 N.Y.S.2d 808, 991 N.E.2d 666, 672 (2013) (plurality opinion).1 The unfortunate event test, in turn, involves a two-part inquiry. First, we identify the “operative incident ... giving rise to liability in this factual context.” Appalachian Ins. Co. v. Gen. Elec. Co. (“Appalachian”), 8 N.Y.3d 162, 831 N.Y.S.2d 742, 863 N.E.2d 994, 1000 (2007). Second, after identifying the operative incident or incidents, we consider “whether there is a close temporal and spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors.” Id., 831 N.Y.S.2d 742, 863 N.E.2d at 999.
Here, as a threshold matter, the unfortunate event test applies. National suggests that the policy language providing that “[a]ll ‘bodily injury’ [and] ‘property damage’ ... resulting from continuous or repeated exрosure to substantially the same conditions will be considered as resulting from one ‘accident,’” J.A. 199, evinces “an intent to aggregate separate accidents into a single occurrence,” Roman Catholic Diocese, 969 N.Y.S.2d 808, 991 N.E.2d at 672. But both this Court and the New York Court of Appeals have previously applied the unfortunate event test in the presence of similar language, determining that the language does not evince an intent to aggregate incidents. See, e.g., Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1213-14 (2d Cir.1995) (“continuous or repeated exposure to conditions”); Roman Catholic Diocese, 969 N.Y.S.2d 808, 991 N.E.2d at 672 (“continuous or repeated exposure to substantially the same general harmful conditions”); Appalachian, 831 N.Y.S.2d 742, 863 N.E.2d at 996 (“continuous or repeated exposure to conditions”).
We first identify the “operative incident ... giving risе to liability in this factual context.” Appalachian, 831 N.Y.S.2d 742, 863 N.E.2d at 1000. Appalachian is instructive on this point. In that case, the New York Court of Appeals cautioned: “Common causation is pertinent once the incident—the fulcrum of our analysis—is identified, but the cause should not be conflated with the incident.” Id., 831 N.Y.S.2d 742, 863 N.E.2d at 999. It then identified as the operative incident each individual’s exposure to asbestos. Id., 831 N.Y.S.2d 742, 863 N.E.2d at 1000. Just as each individual’s exposure to asbestos constituted a separate operative incident in Appalachian, each collision in this case was a separate operative incident.
We then decide whether the operative incidents are nevertheless part of the same accident by examining whether the incidents share temporal and spatial proximity and are part of the same “causal continuum.” Id., 831 N.Y.S.2d 742, 863 N.E.2d at 999. Although New York courts have not applied the unfortunate event test to the fact pattern here, we “construe and apply [New York] law as we believe the state’s highest court would.” City of Johnstown v. Bankers Standard Ins. Co., 877 F.2d 1146, 1153 (2d Cir.1989). We adopt a “practical” approach, as the New York Court of Appeals instructs. See Arthur A. Johnson Corp. v. Indem. Ins. Co., 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.E.2d 704, 708 (1959).
First, regarding temporal proximity, several New York Court of Appeals decisions shed light on the role timing plays in the unfortunate event test. In Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907, 910 (1973), for example, a southbound car sideswiped and ricocheted off a northbound car before striking another northbound car “but an instant” later. Emphasizing the near instantanеous timing between the two collisions, the New York Court of Appeals found “a single, inseparable ‘three-car accident.’” Id.. In contrast, in Arthur A. Johnson Corp., 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.E.2d 704, 708 (1959), the New York Court of Appeals determined that the flood-caused collapses of two separate walls in adjacent buildings were not temporally proximate when they occurred “[a]lmost an hour” apart.
We believe the New York Court of Appeals would find it arbitrary to draw a hard line at any particular number of seconds or minutes that must elapse before two incidents are distinct accidents. Insteаd, we consider whether the relative timing of the various incidents played a role in causing any of the incidents.2 Here, no evidence in the record supports a
Second, the spatial proximity of the events presents a closer question. The first and second incidents are distinct because they occurred in different locations: The first involved the elevated dump box striking the overpass, whereas the second involved the Itzkowitz vehicle colliding with the stationary dump box farther down the road. The second and third incidents, however, are spatially рroximate. The collisions occurred in virtually identical spots on the highway and involved the same dump box. But the spatial proximity of the second and third incidents is not necessarily outcome-determinative. The unfortunate event test does not dictate that separatе incidents are part of the same accident if they meet any one of three criteria—spatial proximity, temporal proximity, or occurrence in a causal continuum. Rather, the test reflects a “common sense” balancing of the three elements. Arthur A. Johnson Corp., 196 N.Y.S.2d 678, 164 N.E.2d at 707.
Wе therefore turn to consideration of the third element: whether the incidents are part of the same causal continuum. The three incidents here share a common origin: the initial negligence that caused the dump truck’s collision with the overpass. But New York case lаw suggests that common causation, while relevant to our inquiry, is insufficient to aggregate incidents into one accident. See, e.g., id., 196 N.Y.S.2d 678, 164 N.E.2d at 706-07 (rejecting a “sole proximate cause” test). Instead, we look to whether there was an “unbroken” continuum between the events. Wesolowski, 350 N.Y.S.2d 895, 305 N.E.2d at 910 (“The continuum between the two impacts was unbroken, with no intervening agent or operative factor.”). To be part of the same accident, the operative incidents must be part of the same causal chain. Once an incident occurs and that incident does not then cause further injury, the causal chain is broken.
Here, the first incident involved the elevated dump box striking the overpass, separating from the dump truck, and landing in the road. That incident was not responsible for the second and third incidents. For example, no one suggests that the first incident weakened the overpass’s structure in a way that caused further injury. Furthermore, even though the collision with the overpass caused the dump box to fall off the truck, the dump box did not immediately cause further damage, unlike the chain-reaction accident that occurred in Wesolowski, 350 N.Y.S.2d 895, 305 N.E.2d at 909. Rather, the dump box fell off the truck, slid down the road, and then came to a rest in the right lane. Then, after thirty seconds passed, the Itzkowitz
Applying the unfortunate event test, we hold that three separate accidents occurred for purposes of the National policy. The damage to the overpass was not temporally or spatially proximate to the Itzkowitz vehicle’s collision with the dump box, and the events were part of distinct causal chains. Additionally, even though there was spatial proximity between the second and third incidents, they too wеre distinct accidents, both because the second incident did not play a role in causing the third and because the relative timing between the two incidents played no role in the third incident’s occurrence.
For the reasons stated herein, we AFFIRM the district court’s judgment.
No. 14-4315-cv.
United States Court of Appeals, Second Circuit.
Sept. 16, 2015.