Courts in the past have addressed “number of occurrences” for purposes of determining the amount of coverage available, under a liability policy, for claims arising out a mass shooting tragedy. 

That’s what is at issue in Tony v. Evanston Ins. Co., No. 22-62076 (S.D. Fla. May 24, 2023).  In 2018, a horrific massacre took place at Marjory Stoneman Douglas High School in Florida (the Parkland shooting). 

Suits were filed by the Parkland shooting victims and their families against the Sheriff of Broward County and others alleging a host of negligence-based reasons why they failed to prevent the tragedy.  The Sheriff’s Department was insured under a public entity liability policy issued by Evanston Ins. Co.  The policy had a limit of liability of $2,500,000 each occurrence and $5,000,000 aggregate and a self-insured retention of $500,000 which states that it “applies separately to each and every ‘occurrence’ and offense covered under this Coverage Part.”

Evanston maintained that each victim of the Parkland shooting constitutes a separate occurrence.  Therefore, a self-insured retention of $500,000 must be separately met by the Sherriff’s Department for each victim.  The Sherriff’s Department argued that the Parkland shooting constitutes a single “occurrence.”  Therefore, notwithstanding the many victims, it must exhaust only a single self-insured retention of $500,000 before coverage is available.

The Sherriff’s Department filed a coverage action in state court.  Evanston removed it to federal court and filed a motion to dismiss.      

As you would expect, a key issue before the court in Tony v. Evanston Ins. Co. was application of the Florida Supreme Court’s 2003 decision in Koikos v. Travelers.  Koikos is the leading Florida decision on number of occurrences and frequently discussed by courts nationally addressing the issue.

The court in Tony v. Evanston concluded that Koikos dictated that only a single self-insured retention applied.  I teach Koikos in my insurance coverage class at Temple Law School and have read the decision many times and dissected it with students.  I believe that, under Koikos, a self-insured retention of $500,000 must be separately met by the Sherriff’s Department for each victim.
 
In Koikos, Florida’s top court held that injuries sustained by two individuals who were shot in a restaurant lobby constituted separate occurrences.  The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”  The court concluded that, notwithstanding that the insured restaurant owner was sued for negligent failure to provide security, “occurrence” is defined by the immediate injury-producing act and not by the underlying tortious omission.  However, despite this multiple occurrence holding, the court specifically emphasized that it was adopting the “cause” test, and not the “effect” test, and stated: “[I]n this case, the immediate causes of the injuries were the intervening intentional acts of the third-party—the intruder’s gunshots.”
 
To summarize, in Koikos, the insured restaurant owner was sued by shooting victims for negligent failure to provide security. In other words, failure to prevent the shooting.  Each shooting victim was found to be a separate occurrence as the cause of each victim’s injuries was the perpetrator’s separate gunshots.  It is difficult to see a difference between Koikos and the Parkland tragedy. 

The crux of the court’s decision in Tony v. Evanston was its belief that the Koikos court had found the term “occurrence” to be ambiguous and construed it liberally in favor of the insured and strictly against the insurer.  Hence, in Koikos, the multiple occurrences conclusion gave rise to multiple limits. 

So, as the Tony v. Evanston court saw it, since Koikos reached its decision based on the term “occurrence” being ambiguous [Evanston strenuously disagreed with this], then it was ambiguous here as well and should be construed liberally in favor of the insured and strictly against the insurer.  Hence, there was a single occurrence and only a single self-insured retention of $500,000 must be satisfied before coverage is available.

The decision has some more detail and discussion -- which is beyond the scope here -- but this is the crux of how it was decided.

I checked the docket and on July 20 the court denied the insurer’s motion for reconsideration or in the alternative certification of interlocutory appeal.

I am going to add Tony v. Evanston to my insurance coverage syllabus and include it in the Koikos discussion.  Plus the decision will offer the students a lesson beyond just “number of occurrences.”