14-3651 

National Liability & Fire Insurance Co. v. Itzkowitz 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR 

AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A 

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

15th day of September, two thousand fifteen. 

PRESENT: 

 ROBERT A. KATZMANN,

 Chief Judge,

 PETER W. HALL, 

 RAYMOND J. LOHIER, JR.,

 Circuit Judges. 

____________________________________________ 

 

NATIONAL LIABILITY & FIRE INSURANCE 

COMPANY, 

Plaintiff – Counter-Defendant – Appellant, 

 v. No. 14-3651-cv 

AARON ITZKOWITZ, BENJAMIN ITZKOWITZ, 

MAYER ITZKOWITZ, YEHUDA ITZKOWITZ, 

JOSEPH ITZKOWITZ, infants by their Mother and 

Natural Guardian, Sheron Itzkowitz, and SHERON 

ITZKOWITZ, individually, 

Defendants – Counter-Claimants – 

Appellees, 

ASHER COMPTON, MOSHE COMPTON, 
2 

ADINA COMPTON, infants by their Mother and 

Natural Guardian, Bleeme Compton, and BLEEME 

COMPTON, individually, AVROHOM 

HERSHKOWITZ, an infant by his Father and 

Natural Guardian, Yosef Hershkowitz, and YOSEF 

HERSHKOWITZ, individually, THE NEW YORK 

STATE THRUWAY AUTHORITY 

CORPORATION, VILLAGER CONSTRUCTION, 

INCORPORATED, MAX ITZKOWITZ, YOSEF 

D. COMPTON, MADISON TITLE AGENCY, 

LLC, 

Defendants – Appellees,

AMY LYNN SIMON, DBA Stoney Ridge Top 

Soil, AMY L. SIMON-HOEY, JOHN S. HOEY, 

Defendants.

*

____________________________________________ 

For Plaintiff – Counter-Defendant – Appellant: 

S. DWIGHT STEPHENS (Ignatius John Melito, Michael Frank 

Panayotou, on the brief), Melito & Adolfsen P.C., New York, NY. 

For Defendants – Counter-Claimants – Appellees: 

IRA S. LIPSIUS, Lipsius-BenHaim Law, LLP, Kew Gardens, NY. 

For Defendants – Appellees Yosef D. Compton, 

Madison Title Agency, LLC: 

ROSA M. FEENEY, Lewis Johs Avallone & Aviles, LLP, Islandia, 

NY. 

For Defendant – Appellee New York State Thruway 

Authority Corporation: 

JAMES ANDREW KENT, Senior Counsel to the Solicitor General 

(Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, 

 *

 The Clerk of the Court is directed to amend the caption to conform to the above. 
3 

Deputy Solicitor General), for Eric T. Schneiderman, Attorney 

General of the State of New York, New York, NY. 

 Appeal from the United States District Court for the Eastern District of New York (Chen, 

J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Plaintiff-Appellant National Liability & Fire Insurance Company (“National”) appeals 

from a final judgment entered on September 8, 2014, by the United States District Court for the 

Eastern District of New York (Chen, J.), which granted the defendants’ motion for summary 

judgment. The question on appeal is whether the district court erred in determining that a series 

of events occurring on Interstate 90 constituted three separate “accidents” for the purposes of the 

National insurance policy at issue. We assume the parties’ familiarity with the underlying facts, 

procedural history, and issues on appeal. 

We review de novo a district court’s grant of summary judgment, see Gorzynski v. 

JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010), as well as its interpretation of contracts, 

including insurance agreements, see Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co., 

702 F.3d 118, 121 (2d Cir. 2012). Our interpretation of the insurance policy is governed by New 

York law.

The policy at issue provides in relevant part: 

Regardless of the number of covered “autos”, “insureds”, premiums paid, 

claims made or vehicles involved in the “accident”, the most we will pay 

for the total of all damages . . . resulting from any one “accident” is the 

Limit of Insurance for Liability Coverage shown in the Declarations. All 

“bodily injury” [and] “property damage” . . . resulting from continuous or 
4 

repeated exposure to substantially the same conditions will be considered 

as resulting from one “accident.” 

J.A. 199. Additionally, the definitions section of the policy defines an accident to include 

“continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property 

damage.’” J.A. 203. 

Although the parties dispute the exact chronology of the events at issue, it is undisputed 

that the relevant series of events began when a dump box attached to a dump truck struck and 

damaged an overpass owned by the Defendant-Appellee New York State Thruway Authority. 

After hitting the overpass, the dump box separated from the truck and landed in the right lane of 

the highway. Between thirty seconds and five minutes later, the vehicle occupied by the 

“Itzkowitz claimants” (driver Max Itzkowitz and passengers Aaron, Benjamin, Mayer, Yehuda, 

Joseph, and Sheron Itzkowitz) struck the detached dump box. And then, at some point between a 

few seconds and twenty minutes later, the vehicle occupied by the “Compton-Hershkowitz 

claimants” (driver Yosef Compton and passengers Asher, Moshe, Adina, and Bleeme Compton, 

as well as Avrohom and Yosef Hershkowitz) struck the same detached dump box. National 

argues that this series of events constituted one accident, or at most two separate accidents, under 

the policy. The defendants disagree, arguing that the district court correctly determined that three 

accidents occurred. 

Under New York law, “absent policy language indicating an intent to aggregate separate 

incidents into a single occurrence, the unfortunate event test should be applied to determine how 

occurrences are categorized for insurance coverage purposes.” Roman Catholic Diocese v. Nat’l 
5 

Union Fire Ins. Co., 991 N.E.2d 666, 672 (N.Y. 2013) (plurality opinion).1

 The unfortunate 

event test, in turn, involves a two-part inquiry. First, we identify the “operative incident . . . 

giving rise to liability in this factual context.” Appalachian Ins. Co. v. Gen. Elec. Co.

(“Appalachian”), 863 N.E.2d 994, 1000 (N.Y. 2007). Second, after identifying the operative 

incident or incidents, we consider “whether there is a close temporal and spatial relationship 

between the incidents giving rise to injury or loss, and whether the incidents can be viewed as 

part of the same causal continuum, without intervening agents or factors.” Id. at 999. 

Here, as a threshold matter, the unfortunate event test applies. National suggests that the 

policy language providing that “[a]ll ‘bodily injury’ [and] ‘property damage’ . . . resulting from 

continuous or repeated exposure to substantially the same conditions will be considered as 

resulting from one ‘accident,’” J.A. 199, evinces “an intent to aggregate separate accidents into a 

single occurrence,” Roman Catholic Diocese, 991 N.E.2d at 672. But both this Court and the 

New York Court of Appeals have previously applied the unfortunate event test in the presence of 

similar language, determining that the language does not evince an intent to aggregate incidents. 

See, e.g., Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1213–14 (2d Cir. 

1995) (“continuous or repeated exposure to conditions”); Roman Catholic Diocese, 991 N.E.2d 

at 672 (“continuous or repeated exposure to substantially the same general harmful conditions”); 

Appalachian, 863 N.E.2d at 996 (“continuous or repeated exposure to conditions”). 

 1

 In interpreting insurance policies, the New York Court of Appeals has found little 

distinction between the terms “occurrence” and “accident.” See Hartford Accident & Indem. Co. 

v. Wesolowski, 305 N.E.2d 907, 910 (N.Y. 1973). 
6 

Applying the unfortunate event test, we conclude that the district court did not err in 

granting summary judgment to the defendants and determining that three separate accidents 

occurred for purposes of the policy at issue. While the parties dispute a number of facts, 

particularly the relative timing of events, none of these disputes is material. Under any version of 

the facts, including one that minimizes the temporal gap between the three incidents, we 

conclude that the district court properly determined that there were three accidents. The 

remainder of our decision therefore assumes arguendo that National has proved that “thirty 

seconds” elapsed between the first and second incidents, J.A. 349, and that “a few seconds” 

elapsed between the second and third incidents, J.A. 879; see also id. at 338–41. 

We first identify the “operative incident . . . giving rise to liability in this factual context.” 

Appalachian, 863 N.E.2d at 1000. Appalachian is instructive on this point. In that case, the New 

York Court of Appeals cautioned: “Common causation is pertinent once the incident—the 

fulcrum of our analysis—is identified, but the cause should not be conflated with the incident.” 

Id. at 999. It then identified as the operative incident each individual’s exposure to asbestos. Id.

at 1000. Just as each individual’s exposure to asbestos constituted a separate operative incident 

in Appalachian, each collision in this case was a separate operative incident. 

We then decide whether the operative incidents are nevertheless part of the same accident 

by examining whether the incidents share temporal and spatial proximity and are part of the 

same “causal continuum.” Id. at 999. Although New York courts have not applied the 

unfortunate event test to the fact pattern here, we “construe and apply [New York] law as we 

believe the state’s highest court would.” City of Johnstown v. Bankers Standard Ins. Co., 877 
7 

F.2d 1146, 1153 (2d Cir. 1989). We adopt a “practical” approach, as the New York Court of 

Appeals instructs. See Arthur A. Johnson Corp. v. Indem. Ins. Co., 164 N.E.2d 704, 708 (N.Y. 

1959). 

First, regarding temporal proximity, several New York Court of Appeals decisions shed 

light on the role timing plays in the unfortunate event test. In Hartford Accident & Indemnity Co. 

v. Wesolowski, for example, a southbound car sideswiped and ricocheted off a northbound car 

before striking another northbound car “but an instant” later. 305 N.E.2d 907, 910 (N.Y. 1973). 

Emphasizing the near instantaneous timing between the two collisions, the New York Court of 

Appeals found “a single, inseparable ‘three-car accident.’” Id. In contrast, in Arthur A. Johnson 

Corp., the New York Court of Appeals determined that the flood-caused collapses of two 

separate walls in adjacent buildings were not temporally proximate when they occurred “[a]lmost 

an hour” apart. 164 N.E.2d at 708. 

We believe the New York Court of Appeals would find it arbitrary to draw a hard line at 

any particular number of seconds or minutes that must elapse before two incidents are distinct 

accidents. Instead, we consider whether the relative timing of the various incidents played a role 

in causing any of the incidents.2

 Here, no evidence in the record supports a reasonable inference 

that the relative timing of any of the incidents played a role in causing the events to unfold as 

they did. No evidence in the record suggests that the short timespan between the dump box’s 

collision with the overpass and the Itzkowitz vehicle’s collision with the dump box played any 

role in the Itzkowitz vehicle’s collision with the dump box. As for the temporal gap of at least “a 

 2

 This inquiry overlaps to some extent with the causal continuum analysis. 
8 

few seconds” between the Itzkowitz and Compton-Hershkowitz vehicles’ collisions with the 

dump box, there is also no indication in the record that timing played a role in the two incidents. 

For example, there is no indication that the Itzkowitz vehicle’s collision in any way distracted or 

limited the reaction time of Yosef Compton, the Compton-Hershkowitz vehicle’s driver. Even a 

few seconds on the highway provides ample opportunity for a vehicle to avoid a collision, and 

National presents no evidence suggesting that timing might have played a role in causing any of 

the collisions. In sum, although the incidents occurred close in time, nothing suggests that the 

narrow timespan between each incident played a role in causing any of the other incidents. 

Second, the spatial proximity of the events presents a closer question. The first and 

second incidents are distinct because they occurred in different locations: The first involved the 

elevated dump box striking the overpass, whereas the second involved the Itzkowitz vehicle 

colliding with the stationary dump box farther down the road. The second and third incidents, 

however, are spatially proximate. The collisions occurred in virtually identical spots on the 

highway and involved the same dump box. But the spatial proximity of the second and third 

incidents is not necessarily outcome-determinative. The unfortunate event test does not dictate 

that separate incidents are part of the same accident if they meet any one of three criteria—

spatial proximity, temporal proximity, or occurrence in a causal continuum. Rather, the test 

reflects a “common sense” balancing of the three elements. Id. at 707. 

We therefore turn to consideration of the third element: whether the incidents are part of 

the same causal continuum. The three incidents here share a common origin: the initial 

negligence that caused the dump truck’s collision with the overpass. But New York case law 
9 

suggests that common causation, while relevant to our inquiry, is insufficient to aggregate 

incidents into one accident. See, e.g., id. at 706–07 (rejecting a “sole proximate cause” test). 

Instead, we look to whether there was an “unbroken” continuum between the events. 

Wesolowski, 305 N.E.2d at 910 (“The continuum between the two impacts was unbroken, with 

no intervening agent or operative factor.”). To be part of the same accident, the operative 

incidents must be part of the same causal chain. Once an incident occurs and that incident does 

not then cause further injury, the causal chain is broken. 

Here, the first incident involved the elevated dump box striking the overpass, separating 

from the dump truck, and landing in the road. That incident was not responsible for the second 

and third incidents. For example, no one suggests that the first incident weakened the overpass’s 

structure in a way that caused further injury. Furthermore, even though the collision with the 

overpass caused the dump box to fall off the truck, the dump box did not immediately cause 

further damage, unlike the chain-reaction accident that occurred in Wesolowski. See id. at 909. 

Rather, the dump box fell off the truck, slid down the road, and then came to a rest in the right 

lane. Then, after thirty seconds passed, the Itzkowitz vehicle struck the dump box. When the 

Itzkowitz vehicle collided with the dump box, a second causal chain started, and this chain was 

distinct from the one that caused the damage to the overpass. Then, the Compton-Hershkowitz 

vehicle struck the dump box, and this collision was unrelated to the preceding collision involving 

the Itzkowitz vehicle. We would be facing a different set of facts if the third incident involving 

the Compton-Hershkowitz claimants occurred because of the Itzkowitz collision; if, for example, 

the Itzkowitz vehicle had ricocheted off the dump box before hitting the Compton-Hershkowitz 
10 

vehicle. There might then have been an unbroken chain between the second and third collisions. 

But that is not what the record indicates. The second and third incidents were therefore not part 

of the same unbroken continuum. 

Applying the unfortunate event test, we hold that three separate accidents occurred for 

purposes of the National policy. The damage to the overpass was not temporally or spatially 

proximate to the Itzkowitz vehicle’s collision with the dump box, and the events were part of 

distinct causal chains. Additionally, even though there was spatial proximity between the second 

and third incidents, they too were distinct accidents, both because the second incident did not 

play a role in causing the third and because the relative timing between the two incidents played 

no role in the third incident’s occurrence. 

For the reasons stated herein, we AFFIRM the district court’s judgment.

FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk