An “Occurrence” Must Always be an Accident and Fortuitous for Coverage to Apply

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An “occurrence” is usually defined as accidental loss or damage which results, during the policy period, in bodily injury or property damage.

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.

The Eleventh Circuit has applied the injury-in-fact trigger three times in the context of similar, occurrence-based CGL policies and latent damages for purposes of determining whether the damage occurred during the policy period or during ongoing operations.