Nesmith v. Allstate Ins.

APPELLATE DIVISION
FOURTH DEPARTMENT
Insurance Law

New York Law Journal

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Presiding Justice Nancy Smith

Insurer Allstate appealed from a judgment denying its motion for summary judgment. Plaintiffs sought a declaration of the parties' rights to an insurance policy. Allstate issued the policy to building owner Wilson having a $500,000 per occurrence limit. Two separate sets of children were exposed to lead paint in an apartment in the building, and sued. The first tort action settled for $350,000. Allstate offered $150,000 to settle the second action arguing a noncumulation clause limited its liability for all exposures in the apartment to the $500,000 policy limit. At issue on appeal was if the policy required Allstate to pay a second full policy limit or if plaintiffs' losses were encompassed by the per occurrence limit. The panel agreed with Allstate that it was responsible only up to its limit for a single policy, finding the lead paint injuring the second set of children was the same as the paint present in the apartment when the first set of children lived there. The panel noted the claims arose from exposure to the same condition, the claims were "spatially identical and temporally close enough" that there were no intervening changes in the injury-causing conditions and must be viewed as a single occurrence within the policy. It reversed the judgment ruling judgment should be granted in Allstate's favor.

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