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Cincinnati Indemnity Co. v. Southwestern Line Constructors Joint Apprenticeship and Training Program

Court of Appeals of Arizona, First Division

May 31, 2018

CINCINNATI INDEMNITY COMPANY, Plaintiff/Appellee,
v.
SOUTHWESTERN LINE CONSTRUCTORS JOINT APPRENTICESHIP AND TRAINING PROGRAM, et al., Defendants/Appellants.

          Appeal from the Superior Court in Maricopa County No. CV2015-013146 The Honorable Douglas Gerlach, Judge

          Swenson Storer Andrews Frazelle PC, Phoenix By Michael J. Frazelle, A. Daniel Coumides Counsel for Plaintiff/Appellee

          Law Office of Scott E. Boehm PC, Phoenix By Scott E. Boehm Counsel for Defendants/Appellants

          Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

          OPINION

          PERKINS, JUDGE:

         ¶1 Appellants challenge the superior court's summary judgment for Appellee Cincinnati Indemnity Company on its claim for declaratory relief regarding the terms of an insurance agreement. We affirm, holding that a single event caused by several independent acts is a single occurrence under the applicable policy language, which defines "occurrence" as an "accident."

         FACTS AND PROCEDURAL HISTORY

         ¶2 Appellants Colby Hale and Curtis Moreland were apprentices in an electrical lineman training program operated by Appellants Southwestern Line Constructors Joint Apprenticeship and Training Program, Southwestern Line Constructors Joint Apprenticeship and Training Committee, and Southwestern Line Construction Electrical Joint Apprenticeship and Training Program (collectively, "Southwestern"). While Hale and Moreland were working at the top of a utility pole at Southwestern's training facility, the pole broke and they fell, sustaining serious injuries.

         ¶3 Hale and Moreland sued Southwestern for negligence and agreed to settle their claims for the limits of Southwestern's commercial general liability insurance policy (the "Policy"). The Policy limits coverage to $1, 000, 000 per "occurrence, " with a total aggregate claims limit of $2, 000, 000.

         ¶4 Southwestern's insurer, Cincinnati Indemnity, sued, seeking a declaratory judgment that Hale and Moreland's injuries were the result of a single "occurrence" and, therefore, the maximum coverage available under the policy is $1, 000, 000. On summary judgment, the superior court ruled that both claims resulted from a single occurrence under the Policy. Southwestern, Hale, and Moreland timely appealed.

         DISCUSSION

         ¶5 A court may grant summary judgment when "the moving party shows that there is no genuine dispute as to any material fact and . . . is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo and "view the evidence and all reasonable inferences in the light most favorable to the party against whom summary judgment was entered." Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2 (2003). The interpretation of insurance policy language is a matter of law that we review de novo. First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, 397, ¶ 8 (2008).

         ¶6 The Policy requires Cincinnati Indemnity to pay amounts Southwestern became legally obligated to pay as damages because of bodily injury or property damage caused by an "occurrence" within the coverage territory. The Policy defines an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The facts are undisputed-Hale and Moreland were not injured by continuous or repeated exposure to substantially the same general harmful conditions. The issue is whether their injuries resulted from a single "accident" within the meaning of the Policy. The superior court ruled that "accident" means an unforeseen and unplanned event, and since there was only one accident (the collapse of the pole), there was only one occurrence.

         ¶7 Relying on Arizona Property and Casualty Insurance Guaranty Fund v. Helme,153 Ariz. 129 (1987), Appellants argue the number of independent acts that caused the pole to break determines the number of occurrences, and assert Southwestern committed five independent negligent acts that caused the pole to break: (1) utilizing wooden poles in its training yard and failing to conduct a pre-climb inspection, (2) failing to perform a pre-climb "hammer test" on the pole, (3) failing to conduct a pre-climb "bore ...


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