A case decided by the Illinois Supreme Court demonstrates how crucial the burden of proof is in determining coverage issues. The court determined two closely related deaths constituted two occurrences under the insured landowner's comprehensive liability policy. See Addison Ins. Co. v. Fay, No. 105752 (Ill. Sup. Ct. Jan. 23, 2009). Accordingly, the policy's aggregate limit was applicable.
Two boys left their homes to go fishing late one afternoon. They did not return and their bodies were found several days later in an excavation pit on the insured's property. The bodies were trapped in wet clay and sand at the edge of a pool of water in the excavation pit. The cause of one boy's death was determined to be hypothermia. The immediate cause of the second boy's death was drowning secondary to hypothermia.
The investigators concluded one boy attempted to jump across the water, but became trapped. The second boy apparently attempted to help his friend, but became trapped himself. The investigators could not determine how much time elapsed between the two entrapments.
When the boy's families sued the insured property owner, the insurer agreed to settle the claims for policy limits. The policy provided a "general aggregate" limit of $2 million, and an "each occurrence" limit of $1 million. The insurer filed for declaratory relief to determine whether the boys' deaths constituted one or two occurrences.
The trial court found the deaths were the result of two occurrences because the causes of death and the circumstances immediately prior to the deaths were different. The appellant court reversed, determining the boys' deaths were so closely linked in time and space as to be considered one occurrence.
The Illinois Supreme Court reversed. First addressing the burden of proof, the court determined the boys' families had demonstrated the injuries were covered under the insured's policy and occurred on property insured by the carrier. Next, the Supreme Court agreed with the appellate court's adoption of the "time and space" test. Where negligence resulted from an ongoing omission rather than separate affirmative acts, a time and space test effectively limited what would otherwise potentially be a limitless bundling of injuries into a single occurrence.
But the Supreme Court disagreed that the facts here conclusively demonstrated that the boys' injuries constituted only a single occurrence. From the evidence, the court could infer that the boys were not trapped simultaneously, but one boy was trapped and the other became trapped while trying to free his friend. Otherwise, there was little evidence to support the insurer's claim that the injuries were the result of a single occurrence. The investigators could not determine how closely in time the boys became trapped. Because the insurer could not meet its burden, the boys' injuries constituted two occurrences.
The Hawai`i Supreme Court has never had occasion to consider adoption of the "time and space" test.
