In the ongoing case of Tony v. Evanston Insurance Co., the U.S. District Court for the Southern District of Florida recently issued a ruling denying a motion to dismiss filed by defendant Evanston Insurance Co. in which it addressed whether multiple shootings originating from a single shooter are treated as separate occurrences or a single occurrence for purposes of coverage under an insurance policy. In the context of insurance coverage cases dealing with shootings, the law in Florida has been “that in the absence of clear language to the contrary, when the insured is being sued for negligent failure to provide security, ‘occurrence’ is defined by the immediate injury-producing act and not by the underlying tortious omission.” In sum, multiple firings of a gun have been found to be multiple occurrences under Florida law. However, in Tony, the district court determined that because the Florida Supreme Court’s 2003 ruling in Koikos v. Travelers Insurance Co. was premised on construing an ambiguity in favor of coverage, the coverage analysis could change based on what number of occurrences is most advantageous to coverage.
Tony involves the aftermath of the horrific shooting in February 2018 at Marjory Stoneman Douglas High School in Parkland, Florida. Specifically, it arose from a dispute over whether the incident constituted a single occurrence or multiple occurrences as defined in Evanston’s insurance policy with the Broward County Sheriff’s Office. The sheriff’s office was insured under a self-insured retention of $500,000 that “applies separately to each and every ‘occurrence’” covered under the policy, meaning that if each victim of the Parkland shooting is considered a separate “occurrence,” the sheriff’s office would have to meet the self-insured retention for each victim. On the other hand, if every victim is considered part of a collective occurrence, the sheriff’s office would only have to meet the self-insured retention once to trigger full coverage under the policy. After discussing Koikos, the district court interpreted the Evanston policy in favor of the insured, holding that the shooting constituted a single occurrence, thus ruling in favor of the sheriff’s office.
In Koikos, the Florida Supreme Court assessed the meaning of the term “occurrence” in a commercial general liability policy, specifically in the context of a shooting that involved multiple victims injured separately at a restaurant. The restaurant was insured under a policy providing $500,000 in coverage per occurrence, and the parties disputed whether a single shooting event involving multiple victims constituted a single or multiple occurrences under the policy. The insurance company argued that the “occurrence” in question was the restaurant’s negligence, i.e., the cause of action in the underlying complaint, and that there was a single occurrence, specifically the failure to provide security at the restaurant.
The court disagreed. Applying the cause theory, which looks to the cause of the injuries rather than the effect, the court held it is the act which causes damages that constitutes the occurrence, not the negligence allowing the act to occur. In finding for the restaurant, the court emphasized that it reached its decision “by looking at the language of the policy in a manner consistent with precedent regarding the construction of insurance policies in this State.” The court stated that it did not focus on the number of injuries or victims but rather, “under the ‘cause theory,’ on the independent immediate acts that gave rise to the injuries and [the insured’s] liability.”
It is difficult to see the difference between the application of law in Koikos and Tony, especially given the Koikos court’s emphasis on the “cause theory,” analysis of the policy under established law regarding the construction of insurance policies, and the fact that the two cases involve a definition of “occurrence” in the respective policies that is nearly identical. In reaching a contrary result, however, the Tony court focused on the need to resolve ambiguity in favor of the insured. Specifically, the Tony court held “Koikos does not compel the result that each shooting [in the Parkland shooting] is a separate ‘occurrence’ under the Policy.” Rather, it “instead found each shooting to be a separate occurrence because the definition of the term ‘occurrence’ was ambiguous, and the policyholder in that case favored that interpretation to maximize coverage.”
In Koikos, by construing the policy to cover both shootings as separate occurrences, the insured received the benefit of an additional $500,000 in coverage. By contrast, in Tony, by finding the Parkland shooting to be a single occurrence, the sheriff’s office received the benefit of not having to pay millions of dollars to meet its self-insured retention for many occurrences. Under the Tony court’s logic, that is the proper holding as a result of the term “occurrence” being ambiguous, and the need to resolve ambiguous terms in an insurance policy in favor of the insured.
The order on Evanston’s motion to dismiss is, of course, not an opinion and is not binding precedent. However, as a non-final order, it also cannot be immediately appealed by Evanston (and the trial court denied Evanston’s motion for reconsideration on July 20, 2023). Thus, insureds may use the order as persuasive evidence in similar cases. Note, though, that the holding is based on specific language, and the Koikos court recognized that certain policy language may limit potential exposure, for example, through aggregate policy limits or specific language considering substantially similar events as one occurrence.
