A portion of a dock on Lack Michigan operated by the Ports of Indiana suffered visible damage. See Ports of Indiana v. Lexington Ins. Co., 2011 U.S. Dist. LEXIS 130979 (S.D. Ind. Nov. 14, 2011). Lexington Insurance Company insured the port. Lexington agreed that a portion of the dock was damaged and paid $1.2 million for repairs. A dispute arose, however, over whether additional sections of the dock were damaged and whether the damage was the result of more than one "occurrence."

   An expert report opined that a significant drop creating record lows in the water level of Lake Michigan in 2007 caused damage to the dock. Lexington maintained that only 128 feet of the dock was damaged; other portions of the dock did not sustain "direct physical loss or damage." Accordingly, Lexington claimed it had no obligation to pay for work performed on other portions of the dock. Ports spent more than $9 million on dock repair and replacement costs and expected to spend another $2.5 million. The Lexington policy covered $10 million per "occurrence."

   Addressing Ports' motion for summary judgment, the court noted that the insured had to prove it suffered a covered loss under the all risk policy before the burden shifted to the insurer to show an exclusion barred coverage. Therefore, Ports had to show a fortuitous "direct physical loss or damage" to the covered property in order to trigger coverage. Here, the allegedly damaged dock section continued to be in active use until those sections underwent rehabilitation. This evidence created a question of material fact as to whether the entire dock had suffered direct physical damage or loss.

   Regarding the number of "occurrences," an issue raised by Lexington's motion for summary judgment, the policy stated "occurrence" meant "any one loss, disaster, casualty or series of losses, disasters or casualties, arising out of one event." Here, Ports claimed that the unusually low water level was the key factor which, in concert with other natural events, caused the damage to the dock. The low lake level was a continuous or ongoing event. Accordingly, the damage incurred were the result of a single occurrence, entitling Lexington to summary judgment on this issue.