From the Chair

“You Will Get Out of It What You Put Into It”


By Kathy Maus

As I set out to write this article, I think about how I arrived at the place I am today. As the newest Chair of DRI's Insurance Law Committee, I revel at the (then unique) opportunity I was given 26 years ago to attend a meeting of this fabulous organization.

A somewhat last-minute spot opened up for me to attend a DRI seminar, a benefit normally reserved for senior associate status. Our founding partner told me that this was an opportunity not to take lightly. "You get out of it what you put into it," said Paul Butler, who founded our firm in 1979. "Don't just attend, but get involved."

As a former minister of the First United Methodist Church of Phoenix, Paul, his wife, and two young sons packed every stick of their possessions and pointed their car to Tampa, Florida. It was there that the Master of Divinity and Doctor of Jurisprudence founded the law firm which is today Butler Weihmuller Katz Craig, LLP. Not surprisingly, Paul was drawn to serving others as a young lawyer. And in the fullness of time, he returned to that calling, as President and Chairman of “Faces in Need,” a charity that operates the Manaleni Achievement Centre in KwaMhlanga, South Africa. But during his active years in private practice, Paul served as a mentor to me and to many others before and after me. His service and involvement also extended to DRI.

Paul served diligently and elevated to Chair of the DRI Insurance Law Committee and later became a member of DRI's Board of Director. Who knew then that I would follow in his footsteps, yet achieving these milestones in reverse order? He was, and is, a true leader and I think back on how fortunate that he pointed me in the right direction.

I took his advice to heart and signed up for several subcommittees following my first meeting in 1994. By the end of my first year, I was marketing, writing, and soon I was invited to speak at a seminar. I participated in membership development and retention and worked my way through the leadership of DRI's Young Lawyers Committee, serving as chair at the "young" age of 12 years in practice.

I simultaneously sought active involvement in the Insurance Law Committee, with a desire to be a part of "big" DRI and all that it had to offer. I was elected to DRI’s Board of Directors in 2005 where I served until 2008, all the while maintaining an active involvement in the Insurance Law Committee. The network of friends and colleagues, including clients, remains invaluable. It also provided many more mentor and mentee relationships over the years, for which I am grateful.

I want to thank Lane Finch, our outgoing Chair, for his wonderful leadership and friendship over the past two years. He set our committee on a good course forward, one that I want to continue. We also are facing new challenges and difficulties in this COVID world, but I am confident we will adapt and overcome. I look forward to working with Vice Chair Jonathan Schwartz as we tackle our goals over the next two years.

A wonderful benefit of our committee is the robust and career-long involvement of many of our members mixed with young members who want to get involved. We need each of you to continue the strength of our committee and to continue putting on excellent continuing legal education in new and different ways. Whether you are a mentor or a mentee, you can (and need) to be both. “You will get out of it what you put into it”—words by which to live.

Please email me regarding your interest in getting (and staying) involved. Kmaus@butler.legal You have a home here, and our home would not be the same without you!

MausKathleenJ-20-c-webKathy Maus
Chair of the DRI Insurance Law Committee
Butler Weihmuller Katz Craig LLP

Moving the Line

Admissibility of Insurer’s Post-suit Settlement Negotiations and Other Conduct


By Patrick A. Bousquet and Jonathan B. Morrow

One of the most hotly debated issues in first-party coverage litigation, particularly in recent years, is the extent to which policyholders can obtain settlement negotiations and claim file materials generated after suit is filed and use that information at trial to show bad faith or vexatious refusal to pay. Carriers and their counsel must be aware of trends and best practices in this area because of how devastating the effect can be when courts change the rules by which litigants must play.

Recent Example

Perhaps nowhere has this been more apparent in the last year than in Missouri, where an appellate court took a big step forward toward allowing post-suit settlement negotiations and other claim handling activities to get to the jury.

The Missouri Court of Appeals found that evidence of post-suit negotiations in an uninsured motorist case could be submitted to a jury in a vexatious refusal to pay case. Qureshi v. Am. Fam. Mut. Ins. Co., 604 S.W.3d 721, 728–29 (Mo. App. 2020). The court also found that the insurer’s UM limits were relevant and admissible to put the inadequacy of the settlement offers into context. Id. at 729. Further, the court held that the insured’s counsel could question employees of the insurer about the nature and extent of the insurer’s investigation and handling of the claim, what claims employees knew about the insured's injuries, and when they knew it—even if they learned the information after suit was filed and, presumably, even if they obtained the information from the insurer’s counsel. Id. at 728.

While this was a potentially huge change in Missouri, Qureshi is not really an outlier. Most courts recognize the existence of an insurer’s duty of good faith that continues post-suit. However, states vary as to what sorts of post-filing conduct by an insurer will be admissible in an action for bad faith or vexatious refusal to pay. Treatment of this question in a first-party context can be divided broadly into three categories: 1) prohibiting the admission of post-filing conduct; 2) allowing only evidence of the insurance company’s settlement behavior; and 3) allowing settlement evidence plus evidence of the litigation tactics, strategies, and techniques employed on behalf of the insurance company.

Contrasting Views

Arkansas is one state that has taken a hardline approach regarding admissible documents and communications after suit has been filed. The Arkansas Supreme Court has held that the tort of bad faith must exist and be complete at the time the action is commenced. Parker v. Southern Farm Bureau Cas. Ins., 326 Ark. 1073, 935 S.W.2d 556, 562 (Ark. 1996). Therefore, the court deemed that none of the conduct by insurers after the filing of the complaint, including legal positions asserted, can provide a basis for bad-faith claims. Id. Similarly, Wyoming has agreed that a complete ban on admission of post-litigation conduct is appropriate. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 257 (Wyo. 2000).

This bright line rule has been criticized by many states, however, as some courts find that this approach amounts to the denial of the continuing existence of a duty of good faith once litigation begins. For example, the Supreme Court of Kentucky determined that its bad faith statute mandated that the duty of good faith continued to apply after the commencement of litigation, because an alternative result would mean “insurance companies would have the perverse incentive to spur injured parties toward litigation, whereupon the insurance company would be shielded from any claim of bad faith. Such a reading would undermine the statute's fundamental purpose by allowing insurance companies to engage in whatever sort of practice—fair or unfair—they see fit to employ.” Knotts v. Zurich Ins. Co., 197 S.W.3d 512, 517 (Ky. 2006).

As such, it appears most states fall into the second category, adopting versions of a balancing test promulgated by the Montana Supreme Court to limit admission of evidence of the insurer’s conduct during litigation:

[t]he continuing duty of good faith does not necessarily render evidence of an insurer’s post-filing conduct admissible. Indeed, courts rarely should allow such evidence and we have adopted a balancing test for those rare circumstances… In general an insurer’s litigation tactics and strategy in defending a claim are not relevant to the insurer’s decision to deny coverage… In some instances, however, evidence of the insurer’s post-filing conduct may bear on the reasonableness of the insurer’s decision and its state of mind when it evaluated and denied the underlying claim… We believe the correct approach is to strike a balance between deterring improper conduct by the insurer and allowing insurers to defend themselves against spurious claims… When the insurer’s post filing conduct has some relevance, the court must weigh its probative value against the inherently high prejudicial effect of such evidence, keeping in mind the insurer’s fundamental right to defend itself.

Palmer by Diacon v. Farmers Insurance Exchange, 261 Mont. 91, 861 P.2d 895, 913–15 (Mont. 1993). Many states have adopted this reasoning to allow certain evidence of the insurer’s conduct during litigation, while noting the necessary limitation to settlement handling rather than litigation techniques themselves. See Dakota, Minnesota & Eastern Railroad Corp. v. Acuity, 2009 SD 69, 771 N.W.2d 623, 634 (S.D. 2009) (Holding that if “the focus of a bad faith claim is the insurer's knowledge and belief during the time the claim is being reviewed,” then the relevance of the litigation conduct is severely diminished); B&F Jacobson Lumber & Hardware, L.L.P. v. Acuity, 2017 Iowa App. LEXIS 1256, *27, 912 N.W.2d 500, 2017 WL 6513961 (Holding that post-filing-of litigation evidence may contain relevant information to the insurer’s decision to deny further payment, so long as it is “not privileged” it certainly was discoverable); Knotts v. Zurich Ins. Co., 197 S.W.3d 512, 523 (Ky. 2006) (“Evidence of post-filing conduct may often be of limited relevance to a claim of the insurance company… Thus, while it will no doubt further limit the admissibility of post-filing behavior, we want to emphasize that before admitting evidence of post-filing behavior, courts must be careful to weigh the probativeness of the proposed evidence against its potential for prejudice”).

Even California, which propounded the seminal case permitting post-suit settlement offers to be admitted as evidence of bad faith, White v. Western Title Insurance Co., 40 Cal. 3d 870, 221 Cal. Rptr. 509, 710 P.2d 309 (Cal. 1985), has sharply limited the case’s application and now prohibits admission of evidence of most post-filing conduct. California’s approach has evolved to allow the introduction of unreasonable settlement behavior (i.e., low-ball settlement offers) that occurs after suit has been filed, but not litigation strategies. See Nies v. National Auto. & Casualty Ins. Co., 199 Cal.App.3d 1192, 245 Cal. Rptr. 518 (Cal. Ct. App. 1988) (holding that insurers will be disabled from conducting a vigorous defense in a bad faith insurance action if their pleadings may be used to prove pre-existing bad faith); Tomaselli v. Transamerica Ins. Co. 25 Cal. App. 4th 1766, 31 Cal.Rptr.2d 224, 228 (Cal. Ct. App. 1994) (claim for bad faith cannot be based on an insurer's appeal from an adverse judgment).

Many courts note that insurers rely heavily on attorneys using common litigation strategies and tactics to defend, and the rules of civil procedure are in place to provide adequate remedies for any improper conduct during the litigation process. For example, the Washington Court of Appeals recently held the following:

We agree with the public policy concerns discussed above, particularly in light of the adversarial relationship between insurers and insureds in UIM bad faith actions. Further, the law on attorney-client privilege and work product doctrine provides that in this context, information generated post-litigation is not discoverable. Allowing such information to be discoverable is not only contrary to the purposes of attorney-client privilege, but it would have a chilling effect on an insurer's ability to defend itself against claim disputes. It also has little bearing on a bad faith action concerning a UIM claim that was denied months before the lawsuit commenced.

Richardson v. Gov't Emps. Ins. Co., 403 P.3d 115, 124, (Wash. Ct. App. 2017). The court of appeals went on to expressly distinguish an Indiana case where the court admitted an insurer’s litigation conduct by noting that the conduct at issue occurred after the insured filed her lawsuit on her UIM claim, but before she filed her bad faith claim. Id. citing Gooch v. State Farm Mutual Automobile Insurance Co., 712 N.E.2d 38, 42 (Ind. Ct. App. 1999) (allowing admission of an insurer’s litigation conduct in determining whether it made a bad faith attempt to force an insured to settle a UIM claim).

Similar policy concerns have driven decisions in several other jurisdictions to prohibit the introduction of litigation strategy and techniques. See Timberlake Const. Co. v. U.S. Fidelity and Guar. Co., 71 F.3d 335, 340–41 (10th Cir. 1995) ("Allowing litigation conduct to serve as evidence of bad faith would undermine an insurer's right to contest questionable claims and to defend itself against such claims”); Sims v. Travelers Insurance Co., 2000 OK CIV APP 145, 16 P.3d 468 (Ok. Civ. App. 2000) (specifically adopting Timberlake's rule disallowing use of litigation conduct and strategy); Hollock v. Erie Ins. Exch., 2004 PA Super 13, 842 A.2d 409 (Pa. Super. 2004) (Insurer’s discovery practices do not constitute evidence of bath faith); Parsons v. Allstate Ins. Co., 165 P.3d 809, 818–19 (Colo. App. 2006) (court warned against admitting attorney litigation conduct as evidence of an insurer's bad faith because insurers would be deterred from conducting a vigorous defense if their pleadings could be used as evidence of preexisting bad faith).

Courts adhering to the third approach still utilize a balancing test to limit the evidence of post-filing conduct, but go beyond settlement discussions to allow the introduction of litigation strategies and techniques more readily as evidence of bad faith on the part of an insurance company. See Barefield v. DPIC Companies, Inc., 215 W. Va. 544, 600 S.E.2d 256, 271 (W.Va. 2004) (allowing the introduction of evidence of alleged misconduct by defense counsel during litigation, so long as the insurer knowingly encourages, directs, participates in, relies upon or ratifies such alleged wrongful conduct); Home Ins. Co. v. Owens, 573 So.2d 343, 344 (Fla. Dist. Ct. App. 1990) (upholding admission of evidence of an insurer's pleadings as well as the insurer's failure to answer a request for admissions).

Montana has extended its holding in Palmer, which expressly left the door open for the admission of evidence of extraordinary post-filing conduct. See Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, 297 Mont. 33, 991 P.2d 915, 922–23 (Mont. 1999) (allowing some litigation conduct, specifically meritless appeals, to be introduced as evidence of bad faith). Just as many states have moved away from a hardline prohibition against allowing any evidence of insurer’s post-suit conduct, we may see a similar trend arise where states in the second category evolve their balancing tests and begin to admit more than post-suit settlement discussions in first-party bad faith actions.


Ultimately, insurers and their counsel must be aware of the rules on admissibility of post-suit negotiations and claim-handling activities in any jurisdiction where they are engaged in first-party coverage litigation. Further, they should be mindful of their continuing obligation to act in good faith in the claim investigation and any settlement negotiations. This may mean that when new information is learned in discovery that bolsters the insured’s claim, the settlement offer should increase accordingly in a timely manner. Further, in some jurisdictions, the jury will get to hear about claim handling activities done by or at the direction of counsel in the course of coverage litigation.

Claim handlers must take a more active in role in the litigation and gone are the days that a first-party matter could simply be turned over to counsel once it goes into suit. Counsel should be wary to make any recommendations regarding claim handling or settlement negotiations that they would not want to see as an exhibit at trial.


BousquetPatrick-21-webPatrick A. Bousquet is a member of Knight Nicastro MacKay, LLC in Saint Louis, where he handles insurance/bad faith matters and commercial litigation at the trial and appellate level, with extensive experience throughout the Midwest and nationwide, including before the Supreme Court of Missouri and the Supreme Court of Illinois, all Missouri, Illinois, and Kansas federal courts, and the United States Courts of Appeals for the Third, Seventh, Eighth, and Tenth Circuit.


MorrowJon-21-webJon Morrow, also a member of Knight Nicastro MacKay, LLC in Saint Louis, is an experienced litigator who handles pre-suit matters and active litigation in Missouri, Illinois and Arkansas. Jon has handled first and third-party cases throughout his career including premises liability, property damage, product liability, commercial coverage disputes and high exposure injury cases. 

The authors would like to thank Camille Todd for her assistance in researching for this article.


Crucial Considerations

How Many Accidents Are in an Accident?


By Jay Rice

It is not uncommon for an automobile accident to involve more than one vehicle or more than one claim. However, the typical automobile policy has “anti-stacking” language in its “Limit of Liability” clause essentially providing, inter alia, that (1) the “Bodily Injury limit of liability shown in the Declarations Page for each person is the most we will pay for all damages … arising out of and due to bodily injury sustained by any one person in any one accident,” and that subject to this “per person” limit, (2) “the Bodily Injury limit of liability shown on the Declarations Page for each accident is the most we will pay for all damages … arising out of and due to bodily injury resulting from any one accident.”

The typical automobile policy will also usually contain broad language providing that the Limit of Liability shown on the Declarations Page is “the most we will pay as the result of any one accident without regard to the number of” 1.Insureds, heirs or survivors; 2. Lawsuits, claimants or claims made; 3. Vehicles involved in the accident; 4. Vehicles or premiums shown on the Declarations Page; or 5. policies applicable. Similar policy language is also found in the typical Uninsured/Underinsured Motorist coverage endorsement. The policy language may be slightly different depending upon the insurance policy under consideration. To circumvent this “policy limit” of coverage available for liability and UM/UIM claims, plaintiffs have tried to assert that there was more than one “accident.” Taking Ohio law as an example, how should carriers respond?

Overview of Different Tests in Ohio

Many Ohio courts have found only one accident for the purposes of policy coverage under the “causation” approach in which one continuous, indivisible course of conduct by one individual injured the victim.

In Dutch Maid Logistics, Inc. v. Acuity, 8th Dist. Cuyahoga Nos. 91932 and 92002, 2009-Ohio-1783, ¶ 29, a tractor-trailer driver rear-ended a line of vehicles stopped in traffic, causing two deaths and severe injuries to three other people. The insurance policy provided that the per accident limit applied, regardless of the number of the covered autos, insureds, premiums paid, claims made, or vehicles involved in the accident. The claimants argued for the “effect” test, which would result in multiple accidents. The Cuyahoga County Court of Appeals, however, applied the “cause” test and determined that there was only one accident. The court reasoned as follows:

[A] plain reading of the policy language establishes that the policy defines an “accident” as one encompassing as many vehicles and injuries as caused by the same tortfeasor. The trial court, in rendering its decision, correctly concluded that there was but one continuous accident that caused all of the bodily injury claims that flowed from it.

Id. at 29. The court’s language suggests that it might conclude otherwise if more than one tortfeasor was involved.

In Greater Cincinnati Chamber of Commerce v. Ghanbar, 157 Ohio App.3d 233, 2004-Ohio-2724 (1st Dist.), a drunk driver drove through barricades surrounding a Cincinnati Oktoberfest festival. The vehicle travelled through a crowd of people, injuring many of them. The tortfeasor had a minimum limits policy, which did not define “accident.” The trial court nonetheless rejected the contention that there were multiple accidents. In affirming the decision of the trial court, the court of appeals applied the “cause” test stating as follows:

The question whether there had been a single accident under the policy language was inextricably linked to the question of causation, and the trial court came to the proper conclusion under the undisputed facts of this case. Even in the absence of the “continuous or repeated exposure” language, the court correctly held that there was only one accident in the case at bar.

Id. at 236. The court found no ambiguity as to what constituted an “accident.”

In Progressive Preferred Ins. Co. v. Derby, 6th Dist. No. F-01-002, 2001 Ohio App. LEXIS 2649 (June 15, 2001), a truck driver backed over a traffic control flagger, and then pulled forward and struck her again. The reversal of the truck’s movement took only an “instant” or “seconds.” The trucker’s liability policy had a limit per accident, and defined accident as including “continuous or repeated exposure” to conditions. The court of appeals adopted the “cause” test and reversed the decision of the trial court. The appellate court held as follows:

In applying these principles to the undisputed facts of the case before us, reasonable minds could only conclude that one accident transpired. As in the cases discussed above, Green negligently backed over Rebecca Derby, shifted the dump truck into forward and drover over Rebecca again. All of these events were in a continuous series, closely linked in both time and space. Green was never in control of the truck’s injury inflicting potential or of the situation at any time during this period. Thus, we conclude that it was Green’s initial negligence that was the predominant, active and continuing cause of any and all of Derby’s injuries. Accordingly, contrary to the trial court’s judgment, a single accident occurred within the meaning of the Progressive liability insurance policy and appellant was entitled to summary judgment as a matter of law.

Id. at 13.

In Banner v. Raisin Valley, Inc., 31 F. Supp. 2d 591 (N.D. Ohio 1998), Phillips was driving a tractor-trailer rig westbound on Ohio State Route 2, when he collided with four vehicles. He first hit a Ford Mustang traveling eastbound, then hit an eastbound Dodge Dakota traveling behind the Mustang, and then struck a Chevy Tahoe that was travelling behind the Dakota. The Tahoe and the tractor-trailer then struck a fourth car. Phillips never regained control of the tractor-trailer after colliding with the first car.

The liability policy for the tractor-trailer in Banner defined “accident” as including “continuous” or “repeated” exposure to the same conditions. The court found that this policy language “contemplates multiple injuries resulting from a single cause.” The policy also provided that the “each limit” of $1 million applied regardless of the number of vehicles involved in the accident. The court observed that the “common thread” in such cases is “whether the driver ever regained control of his vehicle,” and concluded that there was a single accident:

The collisions in this case resulted from the “continuous or repeated exposure to the same condition,” namely, a tractor-trailer that struck four cars before coming to rest. Thus, under the unambiguous terms of defendant’s policy, there was a single accident and liability is limited to $1,000,000.

Id. at 594.

The court in Banner observed that in determining the number of accidents or occurrences under liability policies, courts have generally applied one of three general approaches: (1) the policy limits clause refers to the cause or causes of the accident or occurrence (the “causation view”); (2) the policy limits clause refers to the effect or result of the accident or occurrence (the “effect view”); and (3) the policy limits clause refers to the liability triggering event (the “liability triggering event view”). Id at 593, citing Dow Chemical Co. v. Associated Indemnity Corp., 727 F. Supp. 1524, 1526 (E.D. Mich. 1989). The “vast majority of jurisdictions apply the ‘cause view’ in determining the number of accidents or occurrences under liability policies.” Id. at 1528.

The Godwin Case

In Nationwide Mut. Ins. Co. v. Godwin, 2006-Ohio-4167 (11th Dist. 2006) Mr. and Mrs. Godwin were driving their motorcycles northbound on State Route 528, when William Chepla pulled his minivan from a stopped position heading east along State Route 166. Mr. Chepla struck the Godwins sequentially, causing each of them serious bodily injury. Mr. Chepla was insured by Nationwide with bodily injury liability limits of $100,000 per person, and $100,000 per occurrence. The Nationwide policy did not define “accident” or “occurrence.” The court of appeals affirmed the decision of the trial court that Nationwide’s failure to define these terms created an ambiguity, entitling each of the Godwins to a recovery up to the per occurrence policy limits.

Nationwide argued that “the courts of Ohio clearly adhere to the ‘causation view,’ which holds that policy limits clauses refer to the cause of the insured event, when construing the terms ‘accident’ or ‘occurrence.’” Godwin at *P31, citing Banner v. Raisin alley, Inc. 31 F. Supp. 2d 591, 593 (N.D. Ohio 1998); Progressive Preferred Ins. Co. v. Derby, 6th Dist. N. F-01-002, 2001 Ohio App. Lexis 2649, *8–9 (June 15, 2001); and Greater Cincinnati Chamber of Commerce v Ghanbar, 157 Ohio App. 3d 233, 2004-Ohio-2724, 810 N.E.2d 455.

The court in Godwin rejected this argument holding as follows:

Nationwide's entire argument hinges on the assertion that the courts of Ohio have adopted the causation view when construing the terms "accident" and "occurrence" in liability policies, and thus, that it is not required to define the terms in its policies. Nationwide is simply wrong that the "causation view" is standard Ohio common law. We respectfully acknowledge the opinions of the Northern District of Ohio, and those of our brethren in the First and Sixth Appellate Districts. However, it seems to us that the decisions of these courts relied on by Nationwide are too thin to support the considerable weight of defining such vital liability policy terms as "accident" and "occurrence."

Godwin, supra, 2006-Ohio-4167 at *P50. The court in Godwin observed that the policy in Banner defined “accident” as a “’continuous’ or ‘repeated’ exposure to the same conditions.” Thus, “’accident,’ as defined in the policy, encompasses accidents that involve multiple injuries and multiple vehicles.” Id. at *P 37. The Progressive policy at issue in Derby defined an “accident” as “a sudden, unexpected and unintended event, or a continuous or repeated exposure to that event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of your insured auto.” Id. at *P42.

The court concluded as follows:

In sum, both the decisions in Banner and in Derby, while citing to the causation view in determining that one accident or occurrence had resulted in multiple injuries, were fundamentally based on construction of the term "accident" in the subject liability policies. And, the definition of accident in each policy demanded those courts find that one accident or occurrence had resulted in multiple injuries. Only the decision of the First Appellate District in Ghanbar actually supports Nationwide's position herein: i.e., that an accident or occurrence must be viewed solely in terms of the tortious conduct giving rise to the injuries, rather than the effects upon the injured parties. And, even the Ghanbar court refused to endorse the causation view entirely. Rather, it held that the trial court's construction of the subject policy was correct even in the absence of causation theory.

Id. at P12.

The Miller Case

The same issue was presented to the Eleventh District Court of Appeals five years later in Miller v. Motorist Mutual Insurance Co., 196 Ohio App.3d 753 (11th Dist. 2011). The Miller case involved a multi-vehicle accident with several impacts. In Miller, Daniel Masterson was heading westbound on State Route 5, when he took his eyes off the road in order to reach to the floorboard to retrieve his lighter, and he veered into the eastbound lane of traffic. The SUV Mr. Masterson was driving collided with a group of motorcycles headed eastbound. Mr. Masterson first collided with a motorcycle driven by David Perrine. In an attempt to avoid hitting Mr. Perrine's motorcycle, Michael Reese, who was driving behind Mr. Perrine, took evasive action, but was unable to avoid hitting Mr. Perrine's motorcycle sliding into his path. Mr. Perrine and his passenger, Julia Hill, and Mr. Reese and his passenger, Kim Mook, sustained injuries. Within .3 seconds of striking Mr. Perrine, Mr. Masterson struck a motorcycle driven by Geoffrey Davis, and then traveled back across the westbound lane before crashing into a guardrail. Mr. Davis and his passenger, Theresa Miller, were also injured.

Mr. Masterson was insured by Motorists Mutual, and his policy contained liability coverage for bodily injury with split limits of $100,000 for "each person" and $300,000 for "each accident." No dispute existed as to Mr. Masterson's liability, nor was there a dispute that the collective value of the injuries sustained by Mr. Perrine, Ms. Hill, Mr. Reese, Ms. Mook, Mr. Davis, and Ms. Miller exceeded $300,000. A dispute did exist, however, as to whether the incidents constitute one accident, limiting Motorists’ liability to a single $300,000 per accident payment, or whether they constitute two accidents, increasing MMIC's exposure in this case to, at most, $500,000 under the terms of a settlement and Covenant Not to Execute. Ms. Miller and Mr. Davis contended that Mr. Masterson's collision with their motorcycle constituted a separate accident from the initial collision with Mr. Perrine's motorcycle, and that they were entitled to a separate $300,000 per accident payment.

The trial court granted summary judgment in favor of Motorists, finding "[t]he whole incident was one brief continuous course of conduct." The trial court relied on language in the "Limitation of Liability" portion of the policy to determine that "the term 'accident' or 'any one auto accident' includes all the vehicles involved in the collision." Applying the policy language to its finding that there was one continuous course of conduct, the trial court held that there was only one accident, and that the parties were "therefore limited to a single recovery under the 'Each Accident' portion of [MMIC's] policy, regardless of the number of motorcycles involved in the incident."

The court of appeals reversed the decision of the trial court and held that there was more than one accident. The controlling portion of Motorists’ policy provided as follows:

A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of:

1. Insureds;
2. Claims made;
3. Vehicles or premiums show in the Declarations; or
4. Vehicles involved in the auto accident.

The policy, however, failed to define "accident." Thus, the court reasoned as follows:

The question before the trial court and this court is whether the policy term "accident" is ambiguous. MMIC invites us, despite having failed to provide a definition for "accident," to construe the term as the courts did in Banner v. Raisin Valley, Inc. (N.D. Ohio 1998), 31 F.Supp.2d 591 and Progressive Preferred Ins. Co. v. Derby (June 15, 2001), 6th Dist. No. F-01-002, 2001 Ohio App. LEXIS 2649, and adhere to a "causation approach."

The "causation approach" to policy interpretation focuses on the cause of the insured event, not the effects. See Banner at 593. However, "both the decisions in Banner and in Derby, while citing to the causation view in determining that one accident or occurrence had resulted in multiple injuries, were fundamentally based on construction of the term 'accident' in the subject liability policies. And the definition of accident in each policy demanded those courts find that one accident or occurrence had resulted in multiple injuries." Nationwide Mut. Ins. Co. v. Godwin, 11th Dist. No. 2005-L183, 2006 Ohio 4167, ¶48.

In both Banner and Derby, the limitation of liability clause contained the same "regardless of the number of vehicles involved in the auto accident" language found in MMIC's policy. This is the limiting language relied upon by the trial court below. In an attempt to distinguish this case from Godwin, the trial court surmises that the Godwin court "apparently had insufficient policy language to help define the terms 'accident' or 'occurrence,' because the Godwin decision does not refer to such limiting language in its opinion.

But the real distinction lies in an omission in the MMIC policy, and it is this distinctive omission that controls the outcome of the case before us.

While the Godwin decision only alludes to the policy language that controlled the outcome in Banner and Derby, we definitively find that the interpretation reached in Banner and Derby was dictated by the inclusion of a standard policy definition of the term "accident" as "a sudden, unexpected and unintended event, or a continuous or repeated exposure to substantially the same conditions." Unlike Banner and Derby, the MMIC policy contains no such standard policy language. MMIC chose the less descriptive and thus less limiting definitional language, and thus we have no alternative but to construe the ambiguity against the insurance company.

In arriving at its decision, the court in Miller felt that the same conclusion would be reached from a causation analysis as well. In considering the cause of Mr. Perrine, Ms. Hill, Mr. Reese, and Ms. Mook's injuries as compared to the cause of Ms. Miller and Mr. Davis's injuries, they appear decidedly different. The injuries to the former group are as a direct result of Mr. Masterson's collision with Mr. Perrine's motorcycle. Ms. Miller and Mr. Davis's injuries, however, do not stem from that collision; instead, they are a direct result of an independent collision between Mr. Masterson's vehicle and their own motorcycle.

In conclusion, the court in Miller observed that:

The plain and ordinary meaning of "accident" is "an unexpected and undesirable event." Webster's II New College Dictionary (1999) 6. "A person unversed in the technicalities of insurance law might, therefore, easily conclude that [the insured's striking of each of the vehicles], sequentially, constituted separate accidents or occurrences, rather than the single accident or occurrence of losing control of the [car] ***." Godwin at ¶49.

Id. at 758.

Concluding Remarks

The cases above provide guidance in reconciling these different arguments so as to determine whether there has been one accident or more than one accident for purposes of the “Limits of Liability.” Carriers wrestling with this issue should consider at least two critical issues.

First, a crucial consideration is whether there was only one tortfeasor. There is usually only one “accident” in the case of a single tortfeasor whose continuous tortious conduct resulted in multiple injuries to one or more victims. A second crucial factor is whether the policy defines the term “accident.” It is more likely that more than one accident will be found for the purposes of policy coverage if the word “accident” is undefined because courts may find ambiguity in the undefined term.


RiceJay-21-webJay Rice’s practice generally concerns the defense of insurance companies and their insureds in a wide variety of civil litigation matters. His practice is primarily devoted  to  litigation involving insurance coverage disputes. Mr.  Rice  is an OSBA Certified Specialist in Insurance Coverage Law. He is the  current  Chair  of  the  Insurance  Law Section of the Cleveland Metropolitan Bar Association. Mr. Rice enjoys an AV Preeminent rating with Martindale-Hubbell. He is “of counsel” with Bonezzi Switzer Polito & Hupp Co. L.P.A. and can be reached at (216) 875-2063  or jrice@bsphlaw.com.


This article first appeared in OACTA Quarterly Spring 2021 Issue.

DRI Insurance Law Committee Leadership


Committee Chair
Kathleen J. Maus

Butler Weihmuller Katz Craig LLP
Tallahassee, FL

SchwartzJonathanL-14-webCommittee Vice Chair
Jonathan L. Schwartz

Goldberg Segalla LLP
Chicago, IL

Wright_TimothyPublications Chair
Timothy H. Wright

Skarzynski Marick & Black LLP
Chicago, IL

Whitehead_SuzannaCovered Events Editor-in-Chief
Suzanne M. Whitehead

Skarzynski Marick & Black LLP
New York, NY

Alikin_AlbertCovered Events Editor
Albert K. Alikin
Goldberg Segalla LLP
Los Angeles, CA

greene_landonCovered Events Associate Editor
Landon J. Greene
Goldberg Segalla LLP
Los Angeles, CA


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