Pool Drowning Litigation Gives Rise to Claims of Multiple Occurrences

A recently-released report by the North Carolina Department of Health and Human Services reveals that between 2008 and 2012, there were 138 children who died as a result of unintentional drowning in this state. It accounted for 13 percent of all child deaths in the state, making it the No. 3 cause of death for children in this time frame (preceded by motor vehicle crashes, which accounted for half of all child deaths). pool2.jpg

Our Charlotte swimming pool accident attorneys know the largest number of these incidents occur in the summer. The same is generally true across the country, when more pools are open, accessible and in use.

Adequate safety measures and supervision of children in and around the pool at all times is critical. The recent case of Fellowship of Christian Athletes v. Ironshore Specialty Ins. shows what can happen when adequate supervision is not employed. Here, apparent negligence by camp counselors and organizers resulted in the death of not one but two campers who attended a pool party and were left unattended in the pool area, despite not having the ability to swim.

While the case is still pending trial, the U.S. Court of Appeals for the Eighth Circuit was called on to determine whether, for purposes of claims with the various insurance companies, this was a result of a single occurrence or a multiple occurrence.

Generally, we would not see this issue arise in the case of a drowning, as these incidents don’t usually involve more than one child. More often, in injury law, the question of single vs. multiple occurrences would come up in a car accident case involving multiple vehicle and numerous injuries.

The reason this question is important has to do with the fact that insurers usually cap the amount recoverable on a per-occurrence basis. So for example, if it’s determined there was only a single occurrence, the insurance award might be capped at $1 million. However, if the court determines there were multiple occurrences, that $1 million cap would be multiplied by the number of occurrences. So this is an important pre-trial matter to decide.

In the FCA case, the question was whether both drownings were the result of a single occurrence or a multiple occurrence. The appellate court ultimately determined the deaths arose as a result of a single occurrence.

Although the plaintiffs argued the two boys, both 7-years-old, were supervised by different counselors, the court noted the lawsuit was not against the counselors individually, but rather against the organization, which was insured by three separate policies. That meant that the issues of negligence that gave rise to the claim – negligent training of staffers and negligent supervision of the children – arose from significantly the same circumstances.

Further, the boys died at almost exactly the same time – the coroner’s report listed them as having a time of death just one minute apart. While time-and-space between incidents is not an absolute determination of whether one incident is separate from another (it’s not uncommon for a court to decide car accidents that occur seconds apart are separate occurrences), it is often a consideration.

This ruling does not mean the families will not win their case or be awarded damages. However, it will limit the overall available compensation.

Contact the North Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:
Fellowship of Christian Athletes v. Ironshore Specialty Ins., July 11, 2014, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:
Phelps v. Hebert: Wrongful Death Actions and the Duty of Care, July 23, 2014, Charlotte Injury Lawyer Blog

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