| ExxonMobil Corp. v Certain Underwriters at Lloyd's, London |
| 2008 NY Slip Op 03309 [50 AD3d 434] |
| April 15, 2008 |
| Appellate Division, First Department |
| ExxonMobil Corporation, Appellant, v CertainUnderwriters at Lloyd's, London, et al., Respondents. |
—[*1] Locke Lord Bissell & Liddell LLP, Chicago, Ill. (Laura S. McKay, of the Illinois bar,admitted pro hac vice, of counsel), for respondents.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 5, 2007, whichdenied plaintiff's motion for partial summary judgment and granted defendants' motion for partialsummary judgment on the ground that the underlying products liability claims against plaintiffconstituted multiple occurrences under the insurance policies at issue, unanimously affirmed,with costs.
An "occurrence" is defined in the policies as "an accident, an event or a continuous repeatedexposure to conditions which result in personal injury or property damage, provided all damagesarising out of such exposure to substantially the same general conditions existing at or emanatingfrom each premises location of the Assured shall be considered as arising out of one occurrence."This does not reflect an intention of the parties to aggregate individual claims for the purpose ofsubjecting them to a single policy deductible (see International Flavors & Fragrances, Inc. v Royal Ins. Co. of Am., 46AD3d 224 [2007]). Had they intended to aggregate all claims resulting from the manufactureof plaintiff's product, "it would have been a simple matter to rewrite the definition of 'occurrence'" (id. at 229).
In the absence of a specific aggregation-of-claims provision precisely identifying theoperative incident or occasion giving rise to liability, the court must apply the "unfortunateevents" test (see Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222[1959]) to determine whether the underlying multiple claims constitute multiple "occurrences"under the policy (see Appalachian Ins.Co. v General Elec. Co., 8 NY3d 162, 173 [2007]; International Flavors, 46AD3d at 228). Under this test, the manufacture and sale of plaintiff's two defective products didnot constitute a single occurrence. Each installation of ExxonMobil's polybutylene resin into amunicipal utility water system, and each introduction of AV-1 lubricant into an aircraft engine,created "exposure" to a condition that resulted in property damage, to multiple [*2]claimants on different dates over many years. Under thecircumstances, the underlying products liability claims "share few, if any, commonalities"(Appalachian, 8 NY3d at 174). Concur—Lippman, P.J., Tom, Williams andAcosta, JJ. [See 15 Misc 3d 1144(A), 2007 NY Slip Op 51138(U).]