is how many occurrences took place arising out of the underlying thompson lawsuit scott fetzer says there was one occurrence for insurance coverage purposes zurich says that there were three occurrences for for insurance coverage purposes more specifically the issue before this panel is whether scott fetzer alleged negligence which was essentially a failure to prevent harm to the three victims was one occurrence or three occurrences in the significance of the answer to that question is that if there's only one occurrence that's got feds or is entitled to insurance coverage that would compensate it for the amount it had to pay to settle the raby claim and the less they claim on the other hand if there's three occurrences that means there's three one million dollar deductibles and essentially there's no additional coverage available for scott fetzer under this policy i'd like to focus this argument mainly on the wording of the deductible endorsement i think the case law is interesting but i think the wording of this in this case it's this case apart from many of the others  essentially what that deductible endorsement says is that there's a one million dollar deductible for each occurrence and it applies to all sums payable other than for defense costs result of a resulting from an accident including continuous or repeated exposure to substantially the same harmful conditions regardless of the number of persons who sustain damages or to whom sums are payable how to break that down a little bit our view which we would submit to the panel for consideration is that the all soms language the all sums payable regardless of the number of people essentially is drafting language by the survey that was intended to aggregate as many claims as possible under one occurrence as long as as long as the sums payable resulted from an accident which i submit as a scot that serves negligent conduct here is the case because it was negligence alist against scott fits or not you know intentional deliberate causing of harm and as long as the sums payable resulted from continuous or repeated exposure or repeated exposure to substantially the same harmful conditions and i would submit that that also is satisfied in the record here before the court and i would call the court's attention to the crystal thompson in her co plaintiff's allegations in the fifty minute petition there are identical allegations of fault against scott fetzer lots of in lots of different ways you can be urged just everybody here but it does strike me as kind of intriguing that this kind of intentional conduct on the part of what was his name feel fields yes that guy is an accident i mean because an occurrence that's the premise in the definition of occurrence that starts with an accident yeah i think i get what you're saying judge badge holder nobody's saying that this creates any kind of problem here no i don't i don't believe so i think that you know you could definitely when you're looking at fields action and he's not insured under the under the insurance contract you could say yeah the guy's a bad use of the word accident but nobody thinks it's strange other than me so i don't think we probably have to talk about yaks yeah accident it would be funded debatable when we get so much time accident is not defined here but i take that to mean doesn't it isn't a definition it's like yeah the way is it a definition even it says it's a definition by the heading there see definitions and i think in fairness you have to read it in conjunction with the preceding page of that policy which i don't know if this is occurrence so when you read them together the way i read it is says that one million dollar deductible is for each occurrence and applies to all sums payable that's that's how i read it but it is awkwardly worded i got a definition saying when you're talking about a current occurrence you should take into account well then you have something that's not a sentence so i don't know what it means for a coverage i agree with you i agree with you let me ask you about what  million is ducted retain you know it's two million in those two million over that so three million dollars in payment would result in two million insured yeah so if let's say the plaintiffs in this case  for greater damages let's say that the three there would have been six million dollars of limits available that's that's why this is written i believe the way it is because zurich is trying to limit its exposure and the number of occurrences can result in greater liability other than yes yes and my comment back to judge rogers would be to and actually the entire panel is that way it's not limited doesn't limit occurrence to time or place or number of persons and so i think the palin needs to keep in mind when they listen deserves argument about where this occurred at different times and places it's like my response is so what you could have written the deductible endorsed going away and said you know it's limited to a certain location it's limited to you know if there's one occurrence for each victim that's not how what  of require with regard to how we who gets the benefit of the doubt in reading of any difference policy that is kind of wretched allowed to interpret the policy and under ohio law the definition of ambiguity means if something's not clear or it can also mean if the two parties that have conflicting views insured and then in the next put that in a public opinion in the next case the same contract the amounts are different so the interests are different they stuck with that or do you like entrepreneur referendum again because one of the rules of construction the grants of coverage ensures going to fall within that but exclusions are interpreted narrowly so to the extent that i think if you fall back just on basic principles here that this duck duck the born is exclusionary because you're saying there's only there's only there's three occurrences and it's stripping it's got votes or are you what's it make that argument i don't think i used the word necessary exclusionary but that is the rule say for instance in your favor that this that there's in this type situation there's only one occurrence and then you have the identical situation later except that the amounts are would you rule contra preference in the other way morning your honour's scuse me my name is laura fast and i'm here on behalf of the police europe american insurance company avoiding my argument for a moment and wanting to answer your question the questions with regard to the policy itself the policy language doesn't voiding consistencies there's been no argument with regard to ambiguity the policy in the directive deductible endorsement provides that they will pay all some circle pay all sums for an accident that's what we need to look at after you determine what the accident is and whether it's want to accept that's exactly what i want to talk to you bit it appears that as to mr fi are three different situations or incidents with respect to that there's only one it's active harring mr food that doesn't vary from any from one of these women to another it's the same man now how do you entered a it certainly of course with regard to mr fields there are different assaults sorts there are the mr fields is not the party does the litigation already and to quickly address the question with regard to whether that's an occurrence there actually is ohio supreme court case law that when you're looking at something like negligent hiring negligent supervision vicarious liability that the acts of the perpetrator do not necessarily apply to the acts of the that is alleged to your is different apps that of mr fields in his interactions with the three women absolutely and there are three women three women making allegations with regard to the negligent hiring negligent training and  relate to his original hiring but they are separate acts and as the court the seven circuit side in the lever says interstate case when you look at duties between employer employee you partner them up so with regard to scott fetzer in the individual employees mr thompson all of whom were employees at different times and came into contact with mr fields at different times they do so scott fetzer a rose again scott fetzer failed to supervise mr fields as it related to his conduct wit hiring ok i would have a hard time but in order to go back to your statements with regard to morning to keep consistency in decisions and how the policy language is looked at if we look at the line of cases even the cases that this court has ruled on in  employees about mr fields or it could have a single decision about how he was to be supervised and that it was consistent from employee to employee turns out in fetzer made that deceive those decisions over and over again in a different manner it's to each employee need each decision with regard to each employee and you have to pair the duties according to the lever says enter state case from employer to employee not as a whole company policy and there's no evidence that there was a whole company policy in this case that they were going to get one as additional cities today that the company said well i'm not going to warn this employee and i'm not going to warn that employ isn't there a single decision that there was no need to warn employees there's no evidence of that in this case what we have is the fact the mandatory initiatives one way or another now your honor there's not but of believe that you're arguing that there's a conceptual difference between some sort of preliminary single negligence like we hired him negligently and it caused over a period of time several people to be heard sort of like  warn this person that this person was and then another one in a different period of time for a different person different what do you do under the under the insurance contract then when the settlement doesn't say we're settling this part or we're settling that part it just so we're settling the whole thing they don't just go into court and you argue well this is a settlement of one kind of claim and the other side are you the moment of another kind of claim we go based upon the language of what the claims are subtle based upon the petition the missouri petition the complaint that was filed by the three individual plaintiffs that's what controls and triggers and insurance companies obligation of where they have claims one of which would be insurance policy the insurance policy itself indicates that zurich will pay for each occurrence all sums payable as the result of an accident and what zurich's argument is in this case is that there are more than one accident it was the negligent but they settled a claim it was based on what was saddled which arises out of the petition that was filed by the individual plaintiff that not only alleged th decision to negligently hire or allegedly negligently hire mr fields but then the decisions to negligently supervised him in regard to his relationship to each individual plaintiff but only only l saddled and what is set forth in the settlement agreements is that it was a subtle mind of all claims so we must look back to the petitions that were filed in the thompson complaint which included negligent hiring negligent supervision a negligent failure  you have to look at refer a payment over all since it was not split out scott fast surgeon split it out to indicate that this was a settlement only of the negligent hiring claims it was a settlement of all claims so we must look back to what all claims are and if this were a negligent hiring case only there may be an argument that scott for it's correct i disagree with that based upon the case law that applies with regard to the s festus claims because negligent hiring is like the decision of a company to put asbestos in its products and this court has sad that looking at that decision alone is too remote to determine what the occurrences are when you go forward in the case that's exactly in this case and in the us best cases every time the company put a product in front of another customer separate individual customers a new duty arose i have to say the it now allergy is to me not really that convincing to me let me ask you th  made a decision that he didn't need supervision i would disagree that it was one decision to not to warrant mis rabies conduct contact with mr fields was from may of two thousand and twelve and are standard happen in different tabs but there's no indication that the company revisited the is no indication the company did not once they hire a new employee they must look at all their policies and obligations to that employee well if it's it's to be determined is it going to be determined by the allegations of the comply with the insurance policy or is it going to be determined best something else it would be determined based upon the allegations of the underlying missouri thompson complaint in conjunction with the terms and conditions of the insurance policy itself and the insurance policy defines an occurrence as an accident an accident the failure to warn one individual pla aggregate so in other words no matter how million you say two million if you look at the doctor ations page of the policy it indicates that the coverage that is provided has a general aggregate limit of two million dollars under this policy under the general liability policies that exist now there were other policies that are not part of the record in this case that may have applied but are not at issue with regard to this deductible endorsement there were a higher than two million so the most you could get  couldn't work against you the way it could if there were a higher overall aggregate correct you might in some other litigation where you have the same language but a higher overall limit  killing the occurrence of make up the other way they might but i would be bound by the terms and conditions of the policy as to what in fact an occurrence is regardless of the financial interests of the company when looking at th apologize each occurrence mean normally when you have a definition there's something you know through the me which is the policy if you look at the policy provisions the general liability provisions of the policy there a definition that section that would apply to the deductible endorsement as well and there is a definition contained therein of an occurrence and the definition is that an occurrence means an accident including continuous or repeated exposure to substantia for the policy for the general liability policies there is a definition section and when you look at the pages that you were looking at your honor the term occurrences in quotes that means it's a defined term within the policy so you look back to the terms of the policy in the definition section and i think that i'm looking but you're not relying on this all away that's the language contained in the deductible endorsement then you have to look at the definition of an occurrence contained within the policy your honor you would agree that it would benefit scott fet interpretation by people who speak the language i think hindsight with regard to insurance policies is twenty twenty or honor but however when you look at any contract any document any decision from the court there's always somebody who's going to question how it's drafted  not drafted the language of these policies has been interpreted by courts throughout the country it's accepted by the departments of insurance for filing is providing a specific meaning and providing definitions with them so the only way it will get goes down a rabbit hole when they try to parse out the different types of negligence and call them each occurrences my view is that the fifty minute petition and it's that it's stated in there several places it's a negligent failure to prevent harm to the plaintiff which includes the hiring the supervision and all the other things the rabbit hole that zurich would go down in trying to parse this out just imagine a car accident somebody i know this isn't an auto policy but bear with me the driver runs a red light that's that's the act of negligence that results in the accident that see occurrence yeah you could say well he wasn't paying attention he didn't look he was listening to music he was texting all those were negligent acts but the occurrence is the negligence or running the stop light and it's unitary mention the as best as cases i mean frankly i'm surprised that they weren't arguing that there was more than three occurrences here because his best is cases say exposure to each each exposure of an injured person resulting from his bestest is an occurrence in the fifty minute petition there were way more than three alleged assaults on these women why did she go to three well to three is because there were three victims she's counting the number of people who were injured in zurich actually says that in their brief it's the bodily injury the constituted the occurrence that runs directly counter to a law which says if an issue since oh yes please ok runs directly counter to ohio law which says you look at the cause complicated not in this case i don't it's there's different aggregates that apply one for products one for him but here in the example i gave it there were a lot of two million dollars settlements and i believe that there were three two million dollars settlements she says well under this contract is still would be an overall limit of two million i don't agree with that there are stated two million dollar aggregate limits one for products i beli this is a product liability case so that would apply