What Is An “Occurrence” In An Insurance Policy?

Arlington insurance lawyers need to understand the definition of “occurrence” as used in an insurance policy. A 1998, San Antonio Court of Appeals opinion lends some insight into how the Courts look at that definition. The opinion is styled, Foust v. Ranger Insurance Company.
In 1994, Foust farmed various tracts of land which abutted land owned and farmed by Walters Farms. In May 1994, Walters Farms retained Lindeman to crop dust the milo crop on its property. The herbicide used is dangerous to cotton. Some of the herbicide drifted from the target area on to various tracts of land being farmed by Foust, causing severe damage to Foust’ cotton crop. Foust sued Lindeman, Walters Farms and the manufacturer of the herbicide for loss of income suffered as a result of the damaged cotton crop.
Ranger insured Lindeman under an aircraft insurance policy which had limits of $100,000 per occurrence and $200,000 per policy. Ranger provide Lindeman a defense in the underlying litigation and instituted this declaratory judgment action to determine whether the damages arose from a single occurrence or multiple occurrences under the terms of the policy. The trial court granted Ranger’s Motion for Summary Judgment finding, as a matter of law, that Lindeman’s application of the herbicide on May 14, 1994, amounted to a single occurrence under the terms of the Ranger policy.
The judgment of the trial court in favor of Ranger was affirmed. Ranger’s policy contains a provision that operates to absolve Ranger of its duty to defend Lindeman if Ranger has tendered the limits of liability under the policy. The policy defines occurrence as “a sudden event of repeated exposure to conditions involving the aircraft during the policy period, neither expected nor intended by Lindeman, that cause bodily injury or property damage to others during the policy period.” Ranger argues that the property damage suffered by Foust when Lindeman applied herbicide to Walters Farms’ property was a result of repeated exposure to the same general conditions.
Foust contends that the trial court erred in finding that the damages resulted from repeated exposure to the same general condition because the evidence establishes that the conditions during the application process were constantly changing. Foust relies on cases in which multiple gunshots were deemed to be separate occurrences. The policies at issue in those cases, however, did not define the term “occurrence.” The damage to Foust’s crops resulted from repeated exposure to the same general conditions – the drift of a herbicide which was being applied to crops on adjoining property on May 14, 1994. Each pass of Lindeman’s plane did not result in a new occurrence, it simply resulted in the creation of the same general condition. The herbicide was applied one time, in a process that required several passes over various tracts of land.

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