Multiple Sales of Tabletop Torches Were Multiple Occurrences

April 21, 2017 | Complex Torts & Product Liability | Insurance Coverage

The U.S. District Court for the Southern District of Ohio has ruled that multiple sales of tabletop torches amounted to separate occurrences for purposes of triggering the torch seller’s excess insurance policy.

The Case

Several lawsuits were filed against Big Lots Stores, Inc., by plaintiffs in Illinois, New Jersey, Pennsylvania, and Texas alleging that they had suffered personal injuries caused by “large tabletop torches allegedly designed, tested, marketed and sold in combination with allegedly improper fuel by Big Lots to consumers” (the “Torch Cases”).

The allegations by the plaintiffs in the Torch Cases about the role Big Lots played in causing their injuries differed. Some of the complaints alleged that Big Lots was involved in the design and manufacture of the torches, while others alleged that Big Lots only had purchased the torches for resale and had marketed, distributed, and sold the torches.

Big Lots contended that the Torch Cases presented a single occurrence and that as a consequence, its excess insurance policy had been triggered. The excess carrier argued that the Torch Cases constituted separate occurrences and that as a result, its policy had not been triggered.

Big Lots sued, and the excess insurer moved for summary judgment.

The Ohio District Court’s Decision

The Ohio district court granted the excess insurer’s motion.

In its decision, the Ohio district court observed that a federal district court in Texas had ruled that Big Lots was a non-manufacturing seller of the torches. Given that ruling, the Ohio district court continued, the “occurrence” could not be Big Lots’ manufacturing of the torches but had to be its sale of the torches.

The district court then ruled that, for each sale of a torch, there was a “new exposure and another occurrence.”

The case is Big Lots Stores, Inc. v. American Guarantee & Liability Ins. Co., No. 2:14-cv-02635 (S.D. Ohio March 2, 2017).

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