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Travelers Indemnity Co. v. Children's Friend and Service12/1/2005
. . including the loss of use thereof at any time resulting therefrom" and "loss of use of tangible property which has not been physically injured or destroyed." (Travelers' ex. F, G, H.) According to the language of the policies, the former is covered as long as it-the physical injury or destruction-occurs during the policy period. (Id.) The latter is covered, however, only if "such loss of use is caused by an occurrenceduring the policy period." (Id. (emphasis added).) Under the policies providing coverage through January 29, 1988, therefore, loss of use of tangible property, absent physical injury or destruction of the property, is covered only if the causing "occurrence" occurred during the policy period. The policies covering from January 29, 1988 to January 29, 1992 make no such distinction; the "property damage" need only occur "during the policy period." (Travelers' ex. I, J, K.) Thus, the date of the "occurrence" matters only to the extent that the Rowey plaintiffs suffered "loss of use of tangible property which has not been physically injured or destroyed" prior to January 29, 1988. Since the Rowey plaintiffs claimed both "property damage" and "bodily injury," however, the duty to defend will attach as long as either the claim of "property damage" or "bodily injury" is sufficient to bring the case "potentially with the risk coverage of the policy."
Accordingly, this Court agrees with Travelers' reading of National Union's insurance policies and finds that, for the purpose of determining whether National Union owes a duty to defend, the date of the "occurrence" is immaterial because, even though the timing of the "occurrence" matters with regard to "property damage" under certain circumstances, the policies do not place any temporal restrictions on "bodily injury " other than that they be sustained during the policy period. This Court finds, therefore, that whether National Union owes CFS a duty to defend depends on whether the Rowey plaintiffs' alleged "bodily injury" could have been sustained during the period of time covered by the National Union policies.
National Union contends, however, that regardless of whether the Rowey plaintiffs sustained "bodily injury " or "property damage" during the period of National Union's coverage, these alleged injuries are resulting damages, not the actual injury suffered when parents adopt relying on the negligent misrepresentations of an adoption agency. Analogizing the present cause of action to a cause of action for wrongful birth, National Union contends that the actual injury is "that the parents were denied the opportunity to make a meaningful decision about whether to adopt a child and as a result have taken on an economic (and emotional) obligation to rear a child" whom they might not have adopted had they been fully informed. (National Union's Objection to Travelers' Mot. for Partial Summ. J. 10.) Accordingly, National Union maintains that the Rowey plaintiffs' "injury" could not have been sustained later than the date of adoption, when the Roweys relied on CFS's negligent misrepresentation. National Union asserts, therefore, that it has no obligation to defend CFS. This Court disagrees.
National Union's argument finds its origin in case law regarding the timing of the "occurrence." See Bartholomew, 502 F. Supp. at 251 ("The issue that is vigorously disputed is whether the "occurrence" happened at a time when [the defendant insurance companies] were the insurers on the risk"); Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir. 1982). As the general rule is that " he time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed, but the time when the
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