A Video Explaining the Requirement to Prove an Occurrence

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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.

In Green v. State Farm Fire & Casualty Co. 127 P.3d 1279, 2005 UT App 564 (Utah App. 12/30/2005) a homeowner sued the insured developer after he sustained property damages as a result of a landslide. At the time of the landslide, the developer held a contractor/builder’s risk insurance policy issued by State Farm. The developer initiated a declaratory judgment action against State Farm, seeking defense and indemnification under the policy.

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.

In Automobile Insurance Co. of Hartford v. Cook, 21 A.D.3d 1155, 801 N.Y.S.2d 837 (2005) the court was faced with the legal question of whether an individual’s homeowner’s insurance policy affords coverage when that individual is sued for wrongful death after killing a person in self-defense. On February 20, 2002, defendant Alfred S. Cook shot and killed Richard A. Barber, the decedent, after a disagreement over a business arrangement spun out of control. The decedent had entered Cook’s home without permission. During their discussions, Cook, armed with a handgun, retreated to his bedroom to retrieve a 12-gauge shotgun and then returned to the living room, where the fatal confrontation occurred.

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