Starstone National Insurance Company v. Kinsale Insurance Company et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Starstone National Insurance Company,
Plaintiff,
v.
Kinsale Insurance Company, et al.,
Defendants.
No. CV-23-08074-PCT-SMB
ORDER
The Court now considers Defendant Kinsale Insurance Company’s Motion for
Summary Judgment (Doc. 131), Defendant Burlington Insurance Company’s Motion for
Partial Summary Judgment (Doc. 133), and Defendant National Union Fire Insurance
Company of Pittsburgh, PA’s Motion for Partial Summary Judgment (Doc. 136). The
motions are fully briefed. The Court rules as follows.
I. BACKGROUND
Plaintiff StarStone National Insurance Co. (“StarStone”) brings this action against
Defendants Kinsale Insurance Company (“Kinsale”), Burlington Insurance Company
(“Burlington”), and National Union Fire Insurance Company of Pittsburgh, PA (“National
Union”). The parties are collectively referred to as the “GNM Insurance Carriers.”
StarStone’s Amended Complaint alleges as follows. In August 2015, Willow Creek
Road, LLC (“Willow Creek”) hired Decca Multi-Family Builders, Inc. (“Decca”) to be its
general contractor for the construction of an apartment complex (the “Project”). (Doc. 42
at 2–3 ¶ 9.) Decca hired GNM Companies, LLC (“GNM”) for carpentry and framing work.
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(Id. at 3 ¶¶ 10–11.)
During construction, GNM had the following insurance policies. Kinsale issued a
commercial general liability policy which was effective from January 14, 2016 until
January 14, 2017. (Id. at 5 ¶ 18.) The Kinsale policy had a $1 million limit for each
occurrence with a $2 million aggregate limit. (Id. at 5 ¶ 18.) StarStone provided excess
liability insurance during this period. (Id. ¶ 19.) The StarStone policy provided excess
liability coverage for $5 million per occurrence above the Kinsale policy. (Id.)
Burlington then provided GNM with commercial general liability insurance from
January 14, 2017 until January 14, 2018. (Id. ¶ 20.) The Burlington policy had a $1 million
limit for each occurrence with a $2 million aggregate limit. (Id. at 6 ¶ 20.) National Union
provided excess liability insurance during this period. (Id.) The National Union policy
provided excess liability coverage for $5 million per occurrence above the Burlington
policy. (Id. ¶ 21.)
During 2017, the Project underwent inspections which revealed GNM’s defective
work. (Id. at 3 ¶ 12.) Willow Creek then terminated Decca which sued Willow Creek for
breach of contract in Arizona state court. (Id. ¶¶ 13–14.) Willow Creek brought
counterclaims against Decca and third-party claims against GNM and other subcontractors.
(Id. ¶ 15.) Willow Creek’s claims against GNM were predicated on “numerous
construction defects caused by GNM’s work on the Project, resulting in damages to
different portions of the buildings within the Project.” (Id. at 5 ¶ 17.) Much of this damage
was incurred due to water intrusion after several rain events. (Id. at 3 ¶ 13.)
In response to the lawsuit, Kinsale and Burlington took the position that Willow
Creek’s claims against GNM all involve a single “occurrence” under their respective
policies. (Id. at 6 ¶ 24.) StarStone disagreed, contending that the claims asserted against
GNM involve multiple occurrences. (Id. ¶ 25.) Nevertheless, StarStone participated in the
Willow Creek Lawsuit under a reservation of rights. (Id.)
In August 2023, GNM, Decca, and Willow Creek entered into a settlement
agreement. (Id. at 7 ¶ 27.) Under the agreement, all claims against GNM were resolved
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and the GNM Insurance Carriers agreed to render payment to Willow Creek on GNM’s
behalf. (Id.) Concurrently, GNM and the GNM Insurance Carriers entered into a
settlement funding agreement which outlined each of the GNM Insurance Carriers’
contribution to the settlement payment. (Id. ¶ 28.) Kinsale and Burlington “refused to pay
more than” $1 million each based on their position that the claims against GNM for
defective construction involved a single occurrence. (Id. at 9 ¶ 39.) StarStone thus had to
contribute funds to the settlement payment and now seeks to recoup its contribution. (Id.
at 12 ¶ 60.) StarStone contends that its contribution was unnecessary because the Willow
Creek’s claims against GNM involved multiple occurrences and thus the Kinsale and
Burlington aggregate limits were not exhausted. (Id. at 7 ¶ 30.)
Accordingly, StarStone requests declaratory relief, equitable subrogation, and
equitable indemnity against Kinsale and Burlington. (Id. at 8–11.) In the alternative,
StarStone seeks equitable contribution from National Union. (Id. at 12.) StarStone asserts
that “all or the majority of the damage allegedly resulting from GNM’s alleged acts and
omissions occurred during the 1/14/2017–1/14/2018 policy period, when the Burlington
Policy was the effective primary policy and the National Union Policy was the effective
excess policy.” (Id. ¶ 58.)
Each Defendant answered the Amended Complaint. Burlington filed an Answer
which included counterclaims and crossclaims against Kinsale. (Doc. 43.) National Union
filed an Answer which included counterclaims and crossclaims against Burlington and
Kinsale. (Doc. 47.) Kinsale filed an Answer which included crossclaims against
Burlington and National Union. (Doc. 51.)
Kinsale’s Motion asks for summary judgment on all claims and crossclaims asserted
against it and by it. (Doc. 131 at 3.) Burlington’s Motion asks for summary judgment on
its counterclaims. (Doc. 133 at 7.) National Union’s Motion asks for summary judgment
on StarStone’s claim for declaratory relief. (Doc. 136 at 3.) The Court considers these
motions together because each motion primary concerns whether this case involved
multiple occurrences.
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II. LEGAL STANDARD
Summary judgment is appropriate in circumstances where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of a case under
the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Factual disputes are genuine when the evidence could allow a reasonable jury to find in
favor of the nonmoving party. Id. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the
record” or by showing “that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B). Additionally, the Court may enter
summary judgment “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When considering a motion for summary judgment, a court must view the evidence
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in
the nonmovant’s favor. Anderson, 477 U.S. at 255. Additionally, the Court does not make
credibility determinations or weigh the evidence. Id. The determination of whether a given
factual dispute requires submission to a jury is guided by the substantive evidentiary
standards that apply to the case. Id.
The burden initially falls on the movant to demonstrate the basis for a motion for
summary judgment and “identify[] those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S.
at 323. If this initial burden is not met, the nonmovant does not need to produce anything
even if they would have the ultimate burden of persuasion at trial. Nissan Fire & Marine
Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). However, if the initial
burden is met by the movant, then the nonmovant has the burden to establish that there is
a genuine issue of material fact. Id. at 1103. The nonmovant “must do more than simply
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show that there is some metaphysical doubt as to the material facts.” Zenith Radio Corp.,
475 U.S. at 586. Bare assertions alone do not create a material issue of fact, and “[i]f the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
III. DISCUSSION
The central issue in this case is determining whether damage caused by water
intrusion constitutes a single “occurrence” under Kinsale’s and Burlington’s policies. The
remaining issues in this case pertain to reallocation of the settlement damages among the
GNM Insurance Carriers.
At a general level, the parties seemingly do not dispute that water intrusion affected
the Property beginning in 2016. However, the parties dispute the particular facts
surrounding the water intrusion. For instance, Burlington’s expert “identifies a single
defect in GNM’s work that led to water intrusion and resulting property damage beginning
in 2016.” (Doc. 134 at 4.) On the other hand, StarStone’s and National Union’s experts
identify multiple construction defects which caused water intrusion at different times.
(Doc. 153 at 4.) The Court declines to resolve this factual dispute at this juncture.
Nonetheless, the Court resolves the legal issues raised in the motions.
A. Occurrence
The Kinsale and Burlington policies cover up to $1 million in property damage
caused by an “occurrence.” (Doc. 134 at 2–3.) The policies define an “occurrence” as “an
accident, including continuous or repeated exposure to substantially the same general
harmful conditions.” (Id.) Under this language, Kinsale and Burlington argue that “water
intrusion damage constitutes a single ‘occurrence’ because it represents either an accident
or ‘continuous or repeated exposure to substantially the same general harmful conditions.’”
(Doc. 131 at 10; Doc. 156 at 6.) StarStone and National Union disagree.
Before addressing the number of occurrences, the Court makes clear what the
occurrence is in this case. In the faulty construction context, and under similar policy
language, Arizona courts hold that faulty construction itself is not an occurrence. E.g., U.S.
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Fid. & Guar. Corp. v. Advance Roofing & Supply Co., 788 P.2d 1227, 1233 (Ariz. Ct. App.
1989).
For example, the court in Lennar Corp. v. Auto-Owners Ins. Co., 151 P.3d 538, 544
(Ariz. Ct. App. 2007) interpreted commercial general liability policies with the same
definition of “occurrence” at issue here. The court recognized that “faulty workmanship,
standing alone cannot constitute an occurrence . . . nor would the cost of repairing the
defect constitute property damages.” Id. at 545 (citation modified). Instead, “[a]ccording
to Arizona law, there can be no ‘occurrence’ within the meaning of an insurance policy
until a plaintiff sustains actual damage.” Id. at 548. One court explained that this accords
with “the fundamental nature of a comprehensive general liability policy” which requires
that “an occurrence be an accident.” Advance Roofing, 788 P.2d at 1233. If faulty
workmanship was deemed an occurrence, then “the insurer becomes a guarantor of the
insured’s performance of the contract, and the policy takes on the attributes of a
performance bond.” Id.
Thus, GNM’s faulty construction is not an occurrence. Neither are the cost incurred
to repair GNM’s faulty construction.1 Instead, water intrusion is the occurrence because
that is the “general harmful condition” which caused the property damage. See Travelers
Indem. Co. of Am. v. Moore & Assocs., Inc., 216 S.W.3d 302, 309 (Tenn. 2007) (finding
that water intrusion was an occurrence where a contractor improperly installed windows
which resulted in water intrusion). The Court next addresses the parties dispute regarding
the method used to determine the number of occurrences.
B. Number of Occurrences
Before addressing the number of occurrences in this case, the Court must establish
the correct method for determining so. Kinsale and Burlington argue that the number of
occurrences must be determined based on the water intrusion itself. These parties rely on
1 National Union contends that there are multiple occurrences because in addition to the
water intrusion, GNM performed “defective work on the plywood roof sheathing” which
caused “shiners.” (Doc. 159 at 21.) Shiners are described as protruding nails which
“damaged the roofing underlayment another subcontractor had installed, requiring it to be
removed and replaced.” (Id. at 7.) This issue is not heavily briefed, but based on Lennar,
it appears that the shiners would not give rise to an occurrence.
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Cincinnati Indemnity. Co. v. Southwestern Line Constructors Joint Apprenticeship &
Training Program, 422 P.3d 1086 (Ariz. Ct. App. 2018), which interpreted the same policy
language at issue here. There, two men “were working at the top of a utility pole at [a]
training facility” which broke, causing the men to fall and sustain serious injuries. Id.
at 1087. The men sued the training facility operator, which agreed to settle the matter up
to its policy limits. Id. Like the polices here, the operator’s policy “limit[ed] coverage to
$1,000,000 per ‘occurrence,’ with a total aggregate claims limit of $2,000,000.” Id.
The court held that the number of occurrences depends on the number of accidents,
not the number of “precipitating causes of the accident.” Id. Accordingly, the court
rejected the argument that each negligent act that contributed to the pole breaking was an
occurrence. Id. Instead, the court found that the pole breaking was an accident, and
therefore, there was only one occurrence under the policy. Id. at 1089. In so holding,
Cincinnati differentiated itself from Arizona Property and Casualty Insurance Guaranty
Fund v. Helme, 735 P.2d 451 (Ariz. 1987), the case StarStone and National Union primarily
rely on. In short, these parties contend that Helme provides that the number of occurrences
is determined based on the number of discrete instances of GNM’s faulty work which
caused the water intrusion. (Doc. 154 at 7; Doc. 159 at 10.)
Helme involved two doctors whose independent negligent acts resulted in a patient’s
death. 735 P.2d at 454. The doctors were covered under a single policy which
“indemnif[ied] its insureds separately up to the limit per occurrence for ‘each occurrence’
in which an insured became legally obligated to pay damages because of professional
negligence.” Id. at 456. “The policy define[d] ‘occurrence’ as ‘any incident, act or
omission, or series of related incidents, acts or omissions resulting in injury.’” Id. (citation
modified). The question was whether the doctors’ negligent acts constituted multiple
occurrences.
The Court found that “the number of acts producing injury or damage, rather than
the number of injuries caused, is the key on which the definition of ‘occurrence’ turns.”
Id. at 457. Thus, “[m]ultiple acts causing a single injury will constitute multiple
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occurrences” unless these acts are “causally related to each other as well as to the final
result.’” Id. at 457–58.
The Cincinnati court determined that Helme did not inextricably link the number of
occurrences with the number of causative acts. 422 P.3d at 1088. Instead, Cincinnati
recognized that Helme is confined to the policy language before it. Id. Again, the Helme
“policy . . . defined ‘occurrence’ as ‘any incident, act or omission, or series of related
incidents, acts or omissions resulting in injury.’” Id. (quoting Helme, 735 P.2d at 456).
Cincinnati thus found that “[t]he policy at issue in Helme defined ‘occurrence’ in relation
to incidents, acts, or omissions that result in injury.” Id. However, Cincinnati found that
where “occurrence” is defined as an “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions,” the number of occurrences
is tethered to the number of accidents, “not the precipitating causes of the accident.” Id.
This Court agrees with Cincinnati to the extent it finds that Helme does not
superimpose a particular method of determining the number of occurrences. In Arizona,
“[a]n insurance policy is a contract, and in an action based thereon the terms of the policy
must govern.” Apollo Educ. Grp., Inc. v. Nat’l Union Fire Ins. Co., 480 P.3d 1225, 1228
(Ariz. 2021) (emphasis added) (citation modified). Generally, Arizona courts recognize
that the use of different language implies that a different meaning is intended. See Burns
v. Ariz. Pub. Serv. Co., 517 P.3d 624, 631 (Ariz. 2022). Thus, it is reasonable that
Cincinnati and Helme arrived at different methods of determining the number of
occurrences given that the policies in those cases defined that term differently.
StarStone and National Union’s arguments to the contrary are unavailing. StarStone
contends that Helme adopted the so-called “cause test.” (Doc. 154 at 7.) Under this test,
“the number of acts causing injury, rather than the number of injuries, determines the
number of occurrences.” (Id.) However, Helme did not lay down a formal test which
universally applies to “occurrence.” Still, National Union points out that Helme found
“that the number of causative acts is the key to interpreting ‘per occurrence’ clauses.”
(Doc. 159 at 10.) While Helme did find as much, it is important to read this phrase in
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context, because Helme did not lay down an interpretive maxim.
Again, Helme dealt with the following definition of “occurrence”: “any incident, act
or omission, or series of related incidents, acts or omissions resulting in injury.” 735 P.2d
at 456 (emphasis in original). The court was particularly concerned with interpreting the
italicized language. See id. To do so, the Court noted that the policy’s use of the terms
“acts or omissions ‘resulting in injury’” signaled that the policy employed a “causal test.”
Id. Given that the policy used causal language when defining “occurrence,” the court thus
found “that the number of causative acts is the key to interpreting ‘per occurrence’ clauses.”
Id. at 457. Thus, Helme does not require “occurrence” to universally be defined in
reference to discrete causative acts. The Helme court’s conclusion extends no further than
the policy before that court. Indeed, subsequent courts found that Helme does not compel
a particular outcome where policies use different terms. See, e.g., GRE Ins. Grp. v. Green,
980 P.2d 963, 965 (Ariz. Ct. App. 1999) (“We find that Helme is distinguishable from this
case because of a significant difference in the terms used in the policies.”); Grain Dealers
Mut. Ins. Co. v. Sharbono, No. CV-12-02607-PHX-GMS, 2013 WL 6252435, at *3 (D.
Ariz. Dec. 4, 2013) (noting that “the definition of ‘occurrence’ in Helme is significantly
different from that in the present case” which “does not define ‘occurrence’ in causal
language, rather it defines ‘occurrence’ as an ‘accident’ with no reference to the causes of
injury in the accident”).
Based on the foregoing, the Court finds as follows. Lennar makes clear that
“damage caused by the faulty work, not the faulty work itself, constitute[s] an occurrence.”
151 P.3d at 545. The damage here is water intrusion. Thus, Cincinnati provides that the
number of occurrences is determined by looking at the water intrusion rather than the faulty
workmanship which caused it. See 422 P.3d at 1088.
C. Water Intrusion
The Court now addresses whether water intrusion constitutes a single occurrence.
Again, the policies cover property damage caused by an occurrence which includes “an
accident, including continuous or repeated exposure to substantially the same general
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harmful condition.”
The issue of whether water intrusion, as opposed to the faulty construction,
constitutes a single occurrence is not heavily briefed. Kinsale and Burlington appear to
assume that if the number of occurrences is tethered to the water intrusion, then there can
only be one occurrence. StarStone briefly contends that even if water intrusion is used as
the basis to determine the number of occurrences, the Court cannot determine the number
of occurrences because there are factual disputes relating to the water intrusion. (Doc. 152
at 8.) StarStone contends that there is evidence demonstrating that there are “several
instances of water intrusion, in separate Project locations, at different months in 2016 and
2017, caused by multiple distinct elements of deficient work performed by GNM.” (Id.
at 8–9.) Assuming this to be the case, the Court agrees there would be multiple
occurrences.
Again, the policies state that “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions” can give rise to a single
occurrence. Based on this language, there are two scenarios in which there will be multiple
occurrences: (1) where there are distinct harmful conditions; and (2) where one condition
is not “continuous or repeated.” The first scenario is not implicated here because water
intrusion is one general harmful condition. Thus, the question is whether a condition is
“continuous or repeated” when it causes distinct injuries at distinct times.
The Court begins with the word “continuous.” Generally, an event is continuous if
it is “uninterrupted . . . in space, time, or sequence.” Continous, Merriam-Webster,
https://www.merriam-webster.com/dictionary/continuous (last visited Mar. 6, 2026).
Applied here, water intrusion is not continuous where it affects different portions of a
property at different times. That is because the intrusion would be coming from different
sources and would be separated by both space and time. Water intrusion might be
considered continuous where it comes from the same source and thus affects multiple parts
of a property at the same time. For example, when a single rainstorm causes water damage
to multiple buildings on a property. While Burlington contends that the water intrusion
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here is “one ongoing harmful condition,” (Doc. 133 at 15), it fails to explain how that can
be the case if the intrusion occurs in different places at different times from different
sources.
The Court turns next to the word “repeated.” An event is repeated if it is “done or
presented again.” Repeated, Merriam-Webster, https://www.merriam-
webster.com/dictionary/repeated (last visited Mar. 6, 2026) (citation modified). Water
intrusion is not repeated where it affects different parts of a property at different times.
Although the general harmful condition remains the same, the two events differ in time and
location. Such differences preclude the events from being considered “repetitive.” To
conclude otherwise would render the phrase “continuous or repeated” moot. At bottom,
Kinsale and Burlington’s proposed interpretation determines the number of occurrences
solely by examining the underlying harmful condition. While this is a necessary condition
for there to be multiple occurrences, it is not sufficient. As noted, for there to be one
occurrence, the harmful condition to be “continuous or repeated,” which naturally suggests
that there are instances where a condition may not be continuous or repeated. As a practical
matter, it appears that a condition occurring at different times and locations would plainly
be understood as failing the “continuous or repeated” requirement. Indeed, Kinsale and
Burlington fail to offer when a water intrusion would not be continuous or repeated. More
troublesome, these parties’ theory lacks a limiting principle; under their theory, water
intrusion would seemingly be one occurrence even if separated by a span of years..2
2 A court illustrated a similar concept with the following set of examples:
First, an above-ground storage tank leaks undetected for a period of time.
Any damage can be said to be continuous from the initial event. Second,
assume the leakage resulted from a transfer line which operates only
intermittently. Whenever the transfer line is used, a tank valve leaks. In this
situation, the damage is not caused by a continuous exposure to conditions,
i.e., a steady leak from the faulty tank, but rather by a repeated exposure to
the same conditions, i.e., the transfer line and the faulty valve which
intermittently leaks. Third, Change the foregoing hypothetical to include
both the faulty tank and the transfer line with the faulty valve. If both the
tank failure and the valve leakage were the result of over-pressurization, it is
arguable that only one occurrence has taken place, i.e., the
over-pressurization which resulted in damage. On the other hand, if the tank
failure was caused, for example, by a negligent forklift driver who
inadvertently punctured the tank without realizing it, while the valve
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Accordingly, the Court concludes that under the terms of the policies, there are
multiple occurrences where a single harmful condition causes distinct injuries at different
times and at different locations. Indeed, an inapposite conclusion would prove impractical.
If water intrusion occurring in different places at different times constitutes one occurrence,
the Court fails to see when a condition could ever give rise to multiple occurrences. At
bottom, Burlington and Kinsale’s position lacks a limiting principle. Under their position,
once a condition exists, any subsequent manifestation of that condition would still be a
single occurrence.
The Court notes that its conclusion is not repugnant to Cincinnati. Again, that case
involved certain negligent acts which caused a pole to break and injure two men. 422 P.3d
at 1087. The court determined the number of occurrences based on the number of
accidents, “not the precipitating causes of the accident.” Id. at 1088. There, the accident
was the pole breaking, which was clearly one occurrence. See id. However, the accident
here is water intrusion which could have possibly occurred at different places and times
resulting in different instances of property damage. To analogize, it would be as if two
negligently constructed poles fell on different days. Although any injuries would be caused
by the same general condition—falling poles—that condition could not be fairly
categorized as repeated or continuous. The same is true here.
Until this point, the Court assumed that the water intrusion affected the Property in
different areas at different times. However, the question of how many discrete occurrences
arise out of this case “depends heavily on the specific facts.” See Landmark, 2014 WL
12558121, at *6. Given there are factual disputes regarding the water intrusion in this case,
the Court is unable to determine the exact number of occurrences at this juncture.
However, having reviewed the evidence, the Court finds that water intrusion affected the
Property at different areas at different times. Accordingly, the Court concludes that this
malfunction was caused by the over-pressurization of the transfer line, it
would seem that two occurrences have taken place, because each one resulted
from different causal conditions.
Landmark Am. Ins. Co. v. Liberty Surplus Ins. Corp., No. CV 12-10728-MWF (JEMx),
2014 WL 12558121, at *4 (C.D. Cal. Apr. 9, 2014) (citation modified).
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case involves multiple occurrences.
D. Allocation
The Court next addresses issues related to reallocation of the settlement
contributions. The Court begins with Kinsale’s argument that there is no basis to reallocate
the current pro rata contributions to the settlement based on the “continuous-trigger rule.”
(Doc. 131 at 16.) The Court disagrees. Lennar issues clear guidance on how damages are
allocated under the types of policies at issue here.
The Lennar court noted as follows. “The nature of an occurrence policy . . . is to
provide coverage for all occurrences that take place during the policy period.” Lennar, 151
P.3d at 548. “According to Arizona law, there can be no ‘occurrence’ within the meaning
of an insurance policy until a plaintiff sustains actual damage.” Id. However, “property
damage resulting from ‘continuous or repeated exposure’ may accrue over time.” Id. “In
such cases, the relevant date for coverage purposes is the date the property damage occurs,
even if that damage is incremental.” Id.
In Lennar, the policies at issue covered “‘property damage’ only if: the ‘property
damage’ occurs during the policy period.” Id. The court found that this language plainly
provides that the “insurers must provide coverage for ongoing property damage that occurs
during the policy period even if other similar damage preceded that damage.” Id. at 549.
Kinsale’s and Burlington’s policies contain identical language. (Doc. 135 at 6; 19.) Thus,
these insurers must cover damage that occurs during their respective policy periods. “The
question of how much damage, if any, was actually sustained during any given policy
period” is a fact question. The Court will not resolve that factual question at this juncture.
Kinsale has failed to point this Court to any authority suggesting that despite
Lennar, the continuous trigger theory applies here or that the settlement contributions
should be made on a pro rata basis. On this latter point, Kinsale relies on cases such as
Arizona Joint Underwriting Plan v. Glacier General Assurance Co., 631 P.2d 133 (Ariz.
Ct. App. 1981) and Harbor Insurance Co. v. United Services Automobile Ass’n, 559 P.2d
178 (1976). The Court is not convinced that these cases demand a pro rata allocation here
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given that: (1) Lennar was decided after these cases under circumstances very similar to
those present here; and (2) Glacier and Harbor both involved concurrent insurance
policies, not policies from different periods as is the case here.
In a similar vein, the Court rejects, in part, Burlington’s argument that its policy
does not provide any coverage. Burlington contends “that the property damage caused by
water intrusion was in the process of occurring when the Burlington policy incepted.”
(Doc. 133 at 16.) “Therefore, that property damage is excluded” because its policy
“provides that coverage does not extend to property damage that was in the process of
occurring as of the inception date of the Burlington Policy.” (Id.)
The Court agrees with Burlington insofar as it argues that its policy does not cover
property damage that was in the process of occurring prior to the inception of its policy.
Burlington’s policy plainly does not cover such damage. However, the Court rejects
Burlington’s argument insofar as it suggests that its policy does not provide coverage for
any property damage caused by water intrusion because water intrusion was already
occurring. As discussed, water intrusion can give rise to multiple occurrences and thus
multiple instances of property damage. Accordingly, the Burlington policy does not
provide coverage if either: (1) property damage did not occur during the policy period; or
(2) property damage did occur but that discrete instance of property damage was already
occurring prior to the policy period. However, if water intrusion caused a discrete instance
of property damage during Burlington’s policy period, the Burlington policy would cover
such damage.
The Court cannot make specific reallocation determinations at this juncture. As
noted, the parties present conflicting evidence as to which property damage occurred at
which times.
Accordingly, the Court declines to grant summary judgement.
IV. CONCLUSION
Accordingly,
IT IS ORDERED denying Kinsale’s Motion for Summary Judgment (Doc. 131).
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IT IS FURTHER ORDERED denying Burlington’s Motion for Partial Summary
Judgment (Doc. 133).
IT IS FURTHER ORDERED granting Defendant National Union’s Motion for
Partial Summary Judgment (Doc. 136).
Dated this 9th day of June, 2026.
Case 3:23-cv-08074-SMB Document 179 Filed 06/09/26 Page 15 of 15