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Doria v. Insurance Co.

Decided: April 30, 1986.

ANDREW DORIA, A MINOR AND MICHAEL DORIA, A MINOR, BY THEIR FATHER AND GUARDIAN AD LITEM, ROGER DORIA, ROGER DORIA, INDIVIDUALLY AND IN HIS OWN RIGHT, AND LAURA DORIA, INDIVIDUALLY AND IN HER OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
THE INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT-RESPONDENT, AND RICHARD ORLINA AND ANTONIO MACINA, DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Morton I. Greenberg, Long and Havey. The opinion of the court was delivered by Havey, J.A.D.

Havey

This is a declaratory judgment action involving the interpretation of the term "occurrence" as defined under a general liability insurance policy. The issue raised by this appeal is whether the injuries sustained by the two minor plaintiffs after one fell into a swimming pool and the second fell into the pool attempting to rescue the first, were caused by one or two occurrences. We hold that the number of occurrences for the purpose of applying coverage limitations is determined by referring to the cause or causes of injury and not the number of injuries or claims. We further hold that when injuries to two or more persons, resulting from the same cause, are so closely linked in time and space as to be deemed by the average person as a single event, there is but one occurrence. We conclude that in the circumstances presented here, the injuries to plaintiffs were caused by a single occurrence. We accordingly affirm the trial court's order of summary judgment in favor of defendant Insurance Company of North America (INA).

The essential facts are not in dispute. Plaintiffs Andrew and Michael Doria, brothers and at the time five and four years old respectively, entered property owned by defendants Richard Orlina and Antonio Macina through a broken and dilapidated fence which enclosed a 15' X 40' in-ground swimming pool. The pool had not been used for four to six years and had been left in a state of disrepair. It was uncovered and water had accumulated in it. The water was black and covered with a thick layer of leaves. While the boys were playing near the pool, Michael fell in. Andrew immediately leaned into the pool attempting to hand a stick to his brother to grab and fell in as well. Their companion, Jeffrey Brill, ran home to get help and

returned with his mother who pulled Andrew and Michael from the water. Both boys were unconscious and spent an extended period of time in the hospital. Both survived but their present condition is not apparent from the record.

INA issued a homeowners' liability policy to Orlina and Macina which provided for a maximum personal liability coverage in the amount of $100,000. The policy provided that the company would pay on behalf of the insured "sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence." The policy defined "occurrence" as "an accident, including injurious exposure to conditions which results, during the policy term, in bodily injury or property damage." The policy further provided:

Regardless of the number of:

1. insureds under this insurance;

2. persons or organizations who sustain bodily injury or property damage; or

3. claims made or suits brought on account of bodily injury or property damage; this Company's liability is limited as follows:

1. Coverage E, Personal Liability: The limit of liability stated in the Declarations as applicable to "each occurrence" is the total limit of the Company's liability under Coverage E, Personal Liability, for all damages as the result of any one occurrence.

Plaintiff Roger Doria, individually and on behalf of his sons Michael and Andrew, instituted an action against Orlina and Macina seeking damages for the injuries sustained by Michael and Andrew as well as for medical costs associated with their treatment. A settlement was reached under the terms of which INA paid $90,000, with Orlina and Macina contributing $15,000 from their personal funds. From the aggregate $105,000 settlement, the sums of $67,112.59 and $10,862.58 were paid to Roger on behalf of Andrew and Michael respectively and $27,024.83 to Roger individually. The settlement provided that plaintiffs reserved the right to ...


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