Does a carbon monoxide leak in a duplex apartment building constitute a single occurrence or multiple occurrences for purposes of liability insurance?
This question was recently answered by the West Virginia Supreme Court of Appeal in Kosnoski v. Rogers, 2014 WL 629343 (W. Va., Feb. 18, 2004) (unpublished). In Kosnoski, tenants in a duplex suffered serious injuries from carbon monoxide poisoning. The carbon monoxide was released from a gas boiler furnace located in the basement of the duplex, which was the primary heat source for the two apartments. Tests that were run by the Fire Department revealed that the carbon monoxide level in one apartment was 358 parts per million (ppm), while the level in the other apartment was 258 ppm. The level of carbon monoxide at the basement door, where the gas leak originated, was 658 ppm.
Petitioners brought a lawsuit against the duplex owner and the management company for injuries the tenants suffered because of carbon monoxide exposure. The lawsuit requested a declaratory judgment against the insurance company insuring the property requesting a finding that there had been separate occurrences as a result of the carbon monoxide incident. The petitioners argued that because the injuries occurred to two separate families, occupying separate apartments and took place over the course of an entire evening, with each apartment being exposed to different levels of carbon monoxide, that there was more than one occurrence.
The petitioners argued that the subject exposures and injuries were separated by time, place and severity, and consequently should be considered separate occurrences. Petitioners argued that if the time or place of the events were different and there was a difference in the detailed cause of each injury or damage, that necessarily more than one occurrence took place for purposes of insurance coverage. To support their multiple occurrence argument, the petitioners argued that they were exposed to carbon monoxide at different times during the night and early morning hours, and that they had been were exposed to varying levels of carbon monoxide. Although their apartments were in the same duplex, petitioners argued that were legally and factually separate places.
The insurance company argued that the emission of carbon monoxide gas from the gas boiler furnace was a single event which was closely connected in time and place.
The Court rejected petitioners’ arguments. The insurance policy defined occurrence as “an accident including continuous or repeated exposure to substantially the same general harmful conditions.” From the record, it was clear to the Court that there was a leak of carbon monoxide from a single source, the gas boiler furnace. Although the gas traveled to different rooms within the single building at different times over several hours, the injuries were from continuous or repeated exposure to substantially the same harmful condition. Therefore, the Court found that under the facts presented there was a single occurrence under the policy at issue.
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