Insurance Law

The Unfortunate Event Test Rules – Can’t Aggregate Three Accidents into One

Insurance policy limits of liability can cause disputes between insurers and their insureds so that if there is one accident rather than three (even though the result from a single continuous and repeated exposure to the same general conditions) can limit the exposure faced by the insurer.

In National Liability & Fire Ins. Co. v. Itzkowitz, — Fed.Appx. —-, 2015 U.S. App. LEXIS 16387 (C.A.2 (N.Y.) 9/15/2015), [subscribers can access an enhanced version of this opinion: | Lexis Advance], the insurer argued for a single accident while the injured parties argued for three separate accidents.

National Liability & Fire Insurance Company (“National”) appealed from a final judgment entered on September 8, 2014, by the United States District Court for the Eastern District of New York (Chen, J.), which granted the defendants’ motion for summary judgment. The question on appeal is whether the district court erred in determining that a series of events occurring on Interstate 90 constituted three separate “accidents” for the purposes of the National insurance policy at issue.


The policy at issue provides in relevant part: “Regardless of the number of covered ‘autos’, ‘insureds’, premiums paid, claims made or vehicles involved in the ‘accident’, the most we will pay for the total of all damages … resulting from any one ‘accident’ is the Limit of Insurance for Liability Coverage shown in the Declarations. All ‘bodily injury’ [and] ‘property damage’ … resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one ‘accident.’”

Additionally, the definitions section of the policy defines an accident to include “continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage .’”


Although the parties dispute the exact chronology of the events at issue, it is undisputed that the relevant series of events began when a dump box attached to a dump truck struck and damaged an overpass owned by the New York State Thruway Authority. After hitting the overpass, the dump box separated from the truck and landed in the right lane of the highway.

Between thirty seconds and five minutes later, the vehicle occupied by the “Itzkowitz claimants” struck the detached dump box. And then, at some point between a few seconds and twenty minutes later, the vehicle occupied by the “Compton–Hershkowitz claimants” struck the same detached dump box. National argues that this series of events constituted one accident, or at most two separate accidents, under the policy. The defendants disagree, arguing that the district court correctly determined that three accidents occurred.

Under New York law, absent policy language indicating an intent to aggregate separate incidents into a single occurrence, the unfortunate event test should be applied to determine how occurrences are categorized for insurance coverage purposes. The unfortunate event test, in turn, involves a two-part inquiry. First, the court must identify the operative incident giving rise to liability in this factual context. Second, after identifying the operative incident or incidents, the court must consider whether there is a close temporal and spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors.


As a threshold matter, the appellate court concluded that the unfortunate event test applies. Earlier federal and state authorities concluded that that the policy language does not evince an intent to aggregate incidents.

Applying the unfortunate event test, the appellate court concluded that the district court did not err in granting summary judgment to the defendants and determining that three separate accidents occurred for purposes of the policy at issue. Under any version of the facts, including one that minimizes the temporal gap between the three incidents, the Second Circuit concluded that the district court properly determined that there were three accidents.

First, regarding temporal proximity, several New York Court of Appeals decisions shed light on the role timing plays in the unfortunate event test. Here, no evidence in the record supports a reasonable inference that the relative timing of any of the incidents played a role in causing the events to unfold as they did. No evidence in the record suggests that the short timespan between the dump box’s collision with the overpass and the Itzkowitz vehicle’s collision with the dump box played any role in the Itzkowitz vehicle’s collision with the dump box.

As for the temporal gap of at least “a few seconds” between the Itzkowitz and Compton–Hershkowitz vehicles’ collisions with the dump box, there is also no indication in the record that timing played a role in the two incidents. For example, there is no indication that the Itzkowitz vehicle’s collision in any way distracted or limited the reaction time of Yosef Compton, the Compton–Hershkowitz vehicle’s driver. Even a few seconds on the highway provides ample opportunity for a vehicle to avoid a collision, and National presents no evidence suggesting that timing might have played a role in causing any of the collisions. In sum, although the incidents occurred close in time, nothing suggests that the narrow timespan between each incident played a role in causing any of the other incidents.

Second, the spatial proximity of the events presents a closer question. The first and second incidents are distinct because they occurred in different locations: The first involved the elevated dump box striking the overpass, whereas the second involved the Itzkowitz vehicle colliding with the stationary dump box farther down the road. The second and third incidents, however, are spatially proximate.

The collisions occurred in virtually identical spots on the highway and involved the same dump box. The unfortunate event test does not dictate that separate incidents are part of the same accident if they meet any one of three criteria—spatial proximity, temporal proximity, or occurrence in a causal continuum. The test reflects a “common sense” balancing of the three elements.

The three incidents here share a common origin: the initial negligence that caused the dump truck’s collision with the overpass. The court looked to whether there was an “unbroken” continuum between the events. To be part of the same accident, the operative incidents must be part of the same causal chain. Once an incident occurs and that incident does not then cause further injury, the causal chain is broken.

Here, the first incident involved the elevated dump box striking the overpass, separating from the dump truck, and landing in the road. That incident was not responsible for the second and third incidents.

The dump box fell off the truck, slid down the road, and then came to a rest in the right lane. Then, after thirty seconds passed, the Itzkowitz vehicle struck the dump box. When the Itzkowitz vehicle collided with the dump box, a second causal chain started, and this chain was distinct from the one that caused the damage to the overpass. Then, the Compton–Hershkowitz vehicle struck the dump box, and this collision was unrelated to the preceding collision involving the Itzkowitz vehicle. The court would face a different set of facts if the third incident involving the Compton–Hershkowitz claimants occurred because of the Itzkowitz collision. The second and third incidents were therefore not part of the same unbroken continuum.

Applying the unfortunate event test, the Second Circuit held that three separate accidents occurred for purposes of the National policy. The damage to the overpass was not temporally or spatially proximate to the Itzkowitz vehicle’s collision with the dump box, and the events were part of distinct causal chains. Additionally, even though there was spatial proximity between the second and third incidents, they too were distinct accidents, both because the second incident did not play a role in causing the third and because the relative timing between the two incidents played no role in the third incident’s occurrence.


The Second Circuit refused to allow the insurer to limit its liability exposure to the three groups of parties whose property and health were injured because the dump truck’s box hit an overpass and was detached from the truck body. It found three separate incidents that although proximately caused by the the negligence of the dump truck driver, were still three separate accidents thereby tripling the limits available to pay the injured parties.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2015, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at or, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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