FIFTH CIRCUIT ANNOUNCES “APPROPRIATE” RULE IN DETERMINING THE NUMBER OF “ACCIDENTS” UNDER INSURANCE POLICY - HOLDS THREE COLLISIONS CAUSED BY A RUNAWAY MACK TRUCK CONSTITUTED A SINGLE “ACCIDENT”
In a recent dispute between a primary liability insurer and an excess liability insurer over the number of “accidents” that occurred under the primary insurance policy, the Fifth Circuit Court of Appeals held that three collisions caused by a runaway Mack truck constituted a single “accident.” In Evanston Insurance C. v. Mid-Continent Casualty Co., No. 17-20812, 2018 WL 6037507 (5th Cir. November 19, 2018, mem. op.), in Houston, Texas, the driver of a Mack truck caused a series of collisions resulting in his death and the death of another driver, as well as injuries to the other motorists involved. The accident occurred when the insured vehicle, a Mack truck, struck a Honda Accord that was waiting in line at a toll plaza and pushed the Accord forward more than one hundred feet into the barrels separating two toll lanes. After that, the Mack truck continued to travel through the automatic toll lane for approximately sixty-six feet and struck a Dodge Charger. While traveling through the lane, the Mack truck struck the tollbooth and continued pushing the Charger until it pinned the Charger between the Mack truck and the retaining wall.
Subsequently, the occupants of the Accord and the family of the decedent-driver of the Charger brought suit against the owner of the Mack truck. Also, Harris County made demands for the cleanup and repair of the toll plaza.
The owner of the Mack truck held a primary commercial automobile insurance policy from Mid-Continent Casualty Company (“Mid-Continent”) with a $1 million per-accident liability limit, and an excess policy with Evanston Insurance Company (“Evanston”) with a $5 million per-accident limit. Mid-Continent’s primary policy defined “accident” to include “continuous or repeated exposure to the same conditions resulting in bodily injury or property damage.” The policy further provided that “[r]egardless of the number of covered autos, insureds, premiums paid, claims made or vehicles involved in the accident, the most [Mid-Continent] would pay for the total of all damages . . . resulting from any one accident [was] the [policy limit of $1 million].”
Mid-Continent, having concluded that the series of collisions was a single “accident,” contributed $1 million to settle all claims and then asserted exhaustion of its policy limit and withdrew from litigation. Evanston, having concluded that each separate impact between the Mack truck and the vehicles and toll booth constituted separate accidents subject to separate liability limits, contributed $5.6 million to settle all claims and then filed suit against Mid-Continent seeking reimbursement and defense costs.
The Fifth Circuit held that there was one “accident” under the policy. In doing so, the court clarified previous Texas case law on the issue and pronounced the “appropriate” rule. The court concluded that there is a single “accident” when “there [is] one proximate, uninterrupted, and continuing cause which result[s] in all of the injuries and damage.” There are multiple “accidents” when “the chain of proximate causation [is] broken by a pause in the negligent conduct or by some intervening cause, even if the insured's negligent conduct which caused each of the injuries was the same kind of negligent conduct.” In the case at hand, the court reasoned that there was no indication that the driver of the Mack truck regained control of the truck or that his negligence was otherwise interrupted between collisions. Stated differently, “all of the collisions resulted from the same continuous condition – the unbroken negligence of the Mack truck driver.”