Sonnenschein Nath & Rosenthal LLP on Addison Insurance Co. v. Fay: The Supreme Court of Illinois Adopts the "Time and Space" Test for Purposes of Determining the "Number of Occurrences"
In Addison Ins. Co. v. Fay, 2009 Ill. LEXIS 176 (Ill. Jan. 23, 2009), the Supreme Court of Illinois unanimously held that the deaths of two boys constituted two separate occurrences because the insurer presented insufficient evidence from which it could be ascertained that their deaths “were so closely linked in time and space as to be considered one event.”
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This decision is noteworthy because the Court expanded on the “cause test” previously adopted in Nicor, Inc. v. Assoc. Electric & Gas Ins. Services, Ltd., 223 Ill. 2d 407, 860 N.E.2d 280 (Ill. 2006), finding that “some limiting principle must be applied” in situations where a continuous negligent omission results in insurable injuries. The Court implemented the “time and space test” as the means of limitation, following a New Jersey appellate court in Doria v. Ins. Co. of N. America, 210 N.J. Super. 67, 509 A.2d 220 (N.J. Super. Ct. App. Div. 1986). While some might argue that Addison creates uncertainty in Illinois’ number of occurrence jurisprudence, the Supreme Court made several indications that the “time and space” test would not apply in progressive injury cases.
In this Emerging Issues Analysis, Daniel E. Feinberg, an attorney in the Chicago office of Sonnenschein Nath & Rosenthal LLP, discusses Addison, wherein, some might argue, the court altered Illinois number of occurrence law.
Feinberg writes:
The Addison decision is noteworthy because the Supreme Court expanded on the “cause test” previously adopted in Nicor, finding that “some limiting principle must be applied” in situations where a continuous negligent omission results in insurable injuries. The Court implemented the “time and space test” as that means of limitation. Under that test, courts will treat injuries or damage as the result of one occurrence “if cause and result are simultaneous or so closely linked in time and space as to be considered by the average person as one event.” Thus, some might argue that the Addison decision creates uncertainty as to the direction of Illinois law on the number of occurrences issue, particularly in the context of progressive injury claims. The “time and space” test focuses on the “temporal and spatial” connection between the injuries at issue; progressive injury cases, such as asbestos products injury claims, typically involve separate injuries to many different claimants over long periods of time from products or substances at numerous different sites. It is thus arguable that the injuries in such cases are not “closely linked in time and space.”
In Addison, however, the Supreme Court appeared to limit application of the “time and space test”:
Where negligence is the result of an ongoing omission rather than separate affirmative acts, a time and space test effectively limits what would otherwise potentially be a limitless bundling of injuries into a single occurrence. Addison, 2009 Ill. LEXIS 176, at *21.
Feinberg concludes:
Addison thus appears to be the product of compelling facts, and the Supreme Court’s analysis of the inferences arising from the evidence may well have been influenced by its desire to maximize insurance coverage for the decedents’ families.
In all events, while some might argue that Addison creates uncertainty in Illinois’ number of occurrence jurisprudence, the fact that the Supreme Court distinguished Nicor based on omissions versus affirmative acts indicates that the Court has not strayed from its “cause” test in progressive injury cases involving defective products or fraudulent