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BASED ON THE UNAMBIGUOUS LANGUAGE OF THE POLICY, THE TERM “OCCURRENCE” REFERRED TO EACH TIME A MEMBER OF THE CLASS WAS INJURED, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE; THEREFORE THE DEDUCTIBLE WAS TRIGGERED SEPARATELY FOR EACH INJURED CLASS MEMBER.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the policy-term “occurrence,” for purposes of applying the deductible for each “occurrence,” meant each time a member of the class was injured, and not the single injury to the class as a whole. The class action was brought by an arrestee who was illegally strip-searched at the county jail. 800 others similarly searched made up the class. The insurance policy taken out by the county included a deductible of $10,000 for each “occurrence.” The county argued that the injury to the class as a whole was a single occurrence and triggered only one $10,000 deductible. The court held that, based on the plain language of the policy, each strip-search constituted a separate occurrence. Therefore the $10,000 deductible applied to each member of the class (making the county liable for all the damage payments):

 

The plain language of the insurance policy indicates that the improper strip searches of the arrestees over a four-year period constitute separate occurrences under the policies at issue. Contrary to the County’s argument, the definition of “occurrence” in the policies is not ambiguous. The policy defines ‘occurrence’ as “an event, including continuous or repeated exposure to substantially the same general harmful conditions, which results in . . . ‘personal injury’ . . . by any person or organization and arising out of the insured’s law enforcement duties” (emphasis added). Thus, the language of the insurance policies makes clear that it covers personal injuries to an individual person as a result of a harmful condition. The definition does not permit the grouping of multiple individuals who were harmed by the same condition, unless that group is an organization, which is clearly not the case here. The harm each experienced was as an individual, and each of the strip searches constitutes a single occurrence … . Selective Ins. Co. of Am. v County of Rensselaer, 2016 NY Slip Op 01001, CtApp 2-11-16

 

INSURANCE LAW (CLASS ACTION, DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/CLASS ACTION (INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/MUNICIPAL LAW (CLASS ACTION, COUNTY’S INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)

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