Section 10.4 Coverage A—Bodily Injury and Property Damage Caused by an Occurrence

• Library: Insurance Practice 2015

The injury must be caused by an “occurrence,” and the injury must occur during the policy period. “Occurrence” is defined as an accident including continuous or repeated exposure to the same general harmful conditions. Before the recent commercial general liability (CGL) policy form changes, the definition of “occurrence” required that the injury be “neither expected nor intended from the standpoint of the insured.” That requirement is now in the form of an exclusion to coverage A.

The insured seeking coverage has the burden of proving that the injury resulted from an “accident” and that the insured did not consciously or deliberately intend to act as he or she did or did not intend to inflict harm. The insurer has the burden of proving the exclusion and that the injury was intended or expected. State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642 (Mo. App. E.D. 1993).

An event brought about intentionally is not an accident. Although “accident” is not defined in the CGL policy, it includes an occurrence arising from the carelessness of a person. Accident excludes injuries resulting from an insured’s willful misconduct. N.W. Elec. Power Coop., Inc. v. Am. Motorists Ins. Co., 451 S.W.2d 356 (Mo. App. W.D. 1969); Great Am. Ins. Co. v. Pearl Paint Co., 703 S.W.2d 601 (Mo. App. E.D. 1986); Angelina Cas. Co. v. Pattonville-Bridgeton Terrace Fire Prot. Dist., 706 S.W.2d 483 (Mo. App. E.D. 1986). A breach of contract is not an occurrence within the terms of the CGL policy. Pace Constr. Co. v.United States Fid. & Guar. Ins. Co., 934 F.2d 177 (8^th Cir. 1991); West v. Jacobs, 790 S.W.2d 475 (Mo. App. W.D. 1990). An illegal wiretap does not constitute an “occurrence.” W. Cas. & Sur. Co. v. City of Palmyra,650 F. Supp. 981 (E.D. Mo. 1987). In Cincinnati Insurance Co. v. Television Engineering Corp., 265 F. Supp. 2d 1078 (E.D. Mo. 2003), when two persons were electrocuted in the same accident, the court held that there was a single occurrence.

Several other cases have addressed the “occurrence” requirement of the CGL policy. Scottsdale Insurance Co. v. Ratliff, 927 S.W.2d 531 (Mo. App. E.D. 1996), held that an exterminator’s failure to discover termite damage was an occurrence resulting in property damage.

Wood v. Safeco Insurance Co. of America, 980 S.W.2d 43 (Mo. App. E.D. 1998), held that Safeco had a duty to defend its insured in a lawsuit that alleged both fraudulent misrepresentation and negligent misrepresentation resulting in loss of use of property. The...