                          No. 3-06-0085
Filed September 13, 2007.
_________________________________________________________________

                               IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                             A.D., 2007

ADDISON INSURANCE COMPANY,      ) Appeal from the Circuit Court
                                ) of the 12th Judicial Circuit,
     Plaintiff-Appellant,       ) Will County, Illinois,
                                )
     v.                         )
                                )
DONNA FAY, as Independent       )
Administrator of the Estate     )
of Justice Steven Carr,         ) No. 01-MR-717
Deceased, LAURA SHACKELFORD,    )
as Special Administrator of     )
the Estate of Everett Lee       )
Hodgins, Jr., Deceased, and     )
DONALD PARRISH, d/b/a PARRISH   )
BLACKTOP, INC.,                 ) Honorable
                                ) Herman Haase,
     Defendants-Appellees.      ) Judge, Presiding.
_________________________________________________________________

     PRESIDING JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________


     Plaintiff, Addison Insurance Company, brought a declaratory

judgment action against Donna Fay, as Special Administrator of the

Estate of Justice Carr, Laura Shackelford, as Special Administrator
of the Estate of Everett Hodgins, and Donald Parrish, d/b/a Parrish

Blacktop, Inc., to determine the extent of insurance coverage

available to Parrish to pay claims brought by Fay and Shackelford

resulting from the deaths of their sons.   The trial court declared

that under the terms of the commercial general liability policy

issued to Parrish the boys’ deaths were two separate "occurrences,"

thereby allowing aggregate liability coverage of $2,000,000.    We

reverse.
     Parrish   owned   and   operated   Parrish    Blacktop,   Inc.     The

business was located on several acres of commercial property which

included an excavation pit.        Addison Insurance Company issued a

general   liability    insurance   policy   to    Parrish   that   provided

coverage limits of $1,000,000 per "occurrence" and $2,000,000

aggregate.     The policy defined "occurrence" as "an accident,

including continuous or repeated exposure to substantially the same

general harmful conditions."       The policy did not define the term

"accident."

     On April 30, 1997, Justice Carr, age 14, and Everett Hodgins,

age 15, left Hodgins’ house at approximately 5 p.m. to go fishing

at the local cooling lakes located on Commonwealth Edison property

near Carr’s house.      They did not return home and were reported

missing around 10:30 that evening.       A severe storm accompanied by

heavy rain, high winds and rapidly dropping temperatures struck the

area sometime after the boys were last seen.         The lowest recorded

temperature on May 1 was 34 degrees Fahrenheit.              Investigators

discovered the boys’ bodies on May 3, 1997, on Parrish’s property.

Both boys were trapped in the sandy, clay bottom excavation pit

that had partially filled with standing water.         Their bodies were

located in close proximity to each other.          Carr was found waist-
deep in water with his feet and legs covered in submerged clay

soil.   Hodgins was lying next to Carr with one leg embedded in the

soil.

     The parents of both boys sued Parrish separately, alleging

that he negligently caused the deaths of the two boys by failing to

properly secure and control access to his property.                 Addison

defended the consolidated lawsuit and filed a declaratory judgment


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action against Fay, Shackelford and Parrish to obtain a judicial

declaration     that   the    boys’      deaths    resulted     from     a   single

occurrence,    rendering      the   $1   million     "per   occurrence"       limit

applicable.

     Through    deposition     testimony,      defendants’      expert,      Eugene

Holland, opined that Parrish’s use of his property created a

dangerous   condition,      which   required      proper    site    security    and

control.    Holland testified that the boys’ deaths would have been

prevented if Parrish had proper security because Carr and Hodgins

would not have been able to access the property.

     Officer Gary Knight testified in his deposition that the

officers themselves became entrapped as they tried to remove the

boys.    He opined that Carr likely became stuck in the soil and

water when he tried to jump over the water in the bottom of the

excavation.    Knight assumed that Hodgins attempted to come to his

friend’s aid.       Hodgins appeared to have sat down next to Carr,

tried to pull Carr free, and in the process also became entrapped.

Lieutenant Jerome Nudera, agreed with Knight’s assessment of the

scene.

     Dr.    Larry   Blum,    the    forensic      pathologist      who   performed

autopsies on both bodies, testified through deposition that Hodgins
died of hypothermia due to entrapment in the sand.              Blum determined

that Carr’s death was caused by drowning secondary to hypothermia

due to entrapment. Mary Case, Addison’s expert pathologist, agreed

with Carr’s findings.        She concurred that the drowning of Carr was

secondary to, or a result of, the advancement of hypothermia.

     Addison filed a pretrial motion requesting that the circuit

court rule that defendants, as plaintiffs in the underlying suit,


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bore the burden of proving that the deaths of Carr and Hodgins were

caused by separate occurrences.                The court denied the motion and

held that as the plaintiff in the declaratory judgment action,

Addison bore the burden of proving that the boys’ deaths resulted

from a single occurrence.

     At   the    conclusion       of   a   bench    trial    at    which    the   court

considered only the deposition testimony, the court concluded that

there   was     sufficient    evidence         to   show    that   the     causes   and

circumstances of death were different.                 Consequently, the court

held that the boys’ deaths were two "separate occurrences," and the

$2 million aggregate limit applied.

                                       ANALYSIS

                             I.    Burden of Proof

     Initially, Addison argues that as the insurer of the defendant

Parrish in the underlying wrongful death suit, the burden is on

Fay, Shackelford and Parrish in this declaratory judgment action to

prove that the deaths were the result of two separate and distinct

occurrences.

     It is well established in Illinois insurance law that the

insured bears the burden of establishing that a claim falls within

the terms of a policy.            Waste Management, Inc. v. International
Surplus Lines Insurance Co., 144 Ill. 2d 178 (1991).                  However, once

there is such proof, the burden is on the insurer to prove that the

loss was limited or excluded by a provision of the contract.

Farmers Automobile Insurance Association v. Susan Gitelson, 344

Ill. App. 3d 888, 896 (2003).                  The plaintiff in a declaratory

judgment action bears the burden of proof.                  The Board of Trade of

the City of Chicago v. Dow Jones & Co., 98 Ill. 2d 109 (1983).


                                           4
     In the underlying lawsuit,             Addison agreed to settle the

parents’ claims for the policy limits as a third-party defendant.

Addison then filed a declaratory judgment action, asking the court

to find that the policy’s single occurrence provision limits

coverage to less than the aggregate limits provision. As the

plaintiff, Addison bears the burden of proving that the limitation

applies.

               II.    Single or Separate "Occurrence"

     The case before us concerns construction of the limitations

provision of the Addison Insurance policy.           None of the parties

dispute that the horrible event that took the lives of Carr and

Hodgins qualifies as an occurrence for which Addison Insurance must

provide coverage.    The question is whether that event constituted

two occurrences under        Parrish’s liability policy; if so, the

aggregate coverage limit would apply to the underlying lawsuit.

     The interpretation of an insurance contract is a matter of law

subject to de novo review.             Illinois Farmers Insurance Co. v.

Marchwiany,   222   Ill.    2d   472   (2006).    Insurance   policies   are

governed by the same rules of construction applicable as other

types of contracts.        Nicor, Inc. v. Associated Electric and Gas

Insurance Services Limited, 223 Ill. 2d 407 (2006).              A court’s
primary objective is to ascertain and give effect to the intention

of the parties as expressed in the agreement.             Crum & Forster

Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384 (1993).

The words of the policy should be accorded their plain and ordinary

meaning.   State Farm Mutual Automobile Insurance Co. v. Villicana,

181 Ill. 2d 436 (1998).

     To determine the number of "occurrences" as the term is used


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in most general liability policies, courts around the country have

developed two prevailing approaches: the cause theory and the

effect theory.            Nicor, 223 Ill. 2d 407.             Following the majority of

jurisdictions, Illinois has adopted the cause approach. Nicor, 223

Ill.       2d    at     419-20.     Under      the    cause    theory,     the   number   of

occurrences is determined by referring to the underlying cause or

causes          of    damage.1     See    Illinois      National     Insurance     Co.    v.

Szczepkowicz, 185 Ill. App. 3d 1091 (1989).                         In Nicor, Inc. v.

Associated            Electric    and    Gas    Insurance       Services    Limited,      the

Illinois Supreme Court approved the following test for determining

the number of occurrences when applying the cause theory:

       "Where each asserted loss is the result of a separate and

       intervening human act, whether negligent or intentional,

       or        each    act     increased      the    insured’s     exposure      to

       liability, Illinois law will deem each such loss to have

       arisen from a separate occurrence within the meaning of

       liability policies containing [per occurrence] language."

Nicor, 223 Ill. 2d at 432, citing Mason v. Home Insurance Co. of

Illinois, 177 Ill. App. 3d 454, 460 (1988).

       Although Illinois has adopted the cause approach to determine

the number of occurrences within the aggregate limits of a policy,
the distinction between cause and effect is not always clear.                             As

this case illustrates, what appears to be a single accident to the

person who triggered it, may be perceived as multiple accidents or

occurrences to those who sustain the injury.                        Applying the cause


       1
                The effect theory determines the number of occurrences

by looking at the effect an event had, i.e., how many individual

claims or injuries resulted from it.                    Nicor, 223 Ill. 2d at 418.
                                                6
theory to these unfortunate and unique facts is difficult, at best.

Given the diverse contexts in which the meaning of "occurrence" may

arise, we focus narrowly on the circumstances that confront us in

this case.      In doing so, we use an analytical method which we find

fruitful.       By looking at the relationship of time and space to the

occurrence, we can tread a course that leads us to a resolution of

the cause under the cause theory.

       In Doria v. Insurance Co. of North America, 509 A.2d 220 (N.J.

1986), the New Jersey Supreme Court applied the cause theory to

find a single occurrence where two boys were injured in a swimming

pool.     The boys entered a neighbor’s property through a broken

fence and were playing near the abandoned pool.                One fell in, and

the other boy tried to rescue him.              The second boy fell in, and

both were injured.       Holding that there was only one "occurrence"

under the insured’s policy, the court examined two factors: (1) the

injuries resulted from a single cause, that is, the insured’s

failure to properly fence the pool; and (2) there was a significant

temporal and spatial connection between the injuries.                The court

noted that the boys crawled through the fence together, became

exposed    to    the   pool   at   the   same   time,   were    injured   almost

simultaneously and were rescued at the same time.               Doria, 509 A.2d
220.

       In Illinois National Insurance Co. v. Szczepkowicz, 185 Ill.

App. 3d 1091 (1989), a tractor-trailer stopped in middle of the

roadway and was struck by a vehicle.            The driver immediately moved

the truck forward approximately 12 feet and then stopped again.               He

did not completely remove the vehicle out of all lanes of traffic.

Five minutes later, another automobile smashed into the side of the


                                         7
stopped tractor-trailer.           The court stated that a single accident

or occurrence will be found under the cause theory "if cause and

result are so simultaneous or so closely linked in time and space

as   to   be     considered   by    the    average    person    as   one   event."

Szczepkowicz, 185 Ill. App. 3d at 1095.              The court concluded that,

based on the circumstances, the two collisions were not caused by

a "single force *** or uninterrupted continuum that, once set in

motion caused multiple injuries."             Szczepkowicz, 185 Ill. App. 3d

at 1096.       Further, the two collisions were not substantially the

same in time or space because the driver had moved the truck

forward and five minutes had elapsed between the two accidents.

      Other jurisdictions have also incorporated the time and space

analysis when applying the cause approach.                     See Pemco Mutual

Insurance Co. v. Utterback, 960 P.2d 453, 456-57 (Wash. 1998)

(pedestrian was first struck by insured attempting to park her car,

car immediately lurched forward and struck pedestrian again; court

held that a single accident occurred because of "the interdependent

nature of the two impacts and their continuity and proximity in

time and location"); Olsen v. Moore, 202 N.W.2d 236, 241 (Wis.

1972)     (one   "occurrence"      for    purposes   of   policy     limits   where

insured’s vehicle struck two vehicles "almost instantaneously;"
there was virtually no "time or space interval" between the two

impacts, and the driver never regained control over vehicle.)

      The above case law suggests that if cause and injury are

simultaneous or "so closely linked in time and space as to be

considered by the average person as one event," courts have found

that liability exists based on a single occurrence. See Doria, 509

A.2d at 224-25; Szczepkowicz, 185 Ill. App. 3d at 1095.                         If,


                                          8
however, enough time has elapsed between the injuries or damage to

property, or if the injuries or damages are sufficiently separated

in physical space, courts have been inclined to conclude that there

were multiple "occurrences."     See Nicor, 223 Ill. 2d at 433-34.

Thus, in analyzing these facts, we must consider (1) the negligent

act or condition that caused the injury, and (2) how the temporal

and spatial nature of the incident may have affected any "separate

or intervening acts"     or "increased the insured’s exposure to

liability" under Nicor.

     First, the losses here arose from a single negligent act or

condition.     Parrish failed to properly secure entry into the

excavation pit, a single negligent condition which led to the boys’

injuries.     Thus, the boys’ tragic deaths were the result of one

cause.

     Second, we conclude that the unfortunate events resulting in

the boys’ deaths are so closely linked in time and space as to be

considered by a reasonable person as one "occurrence."       As the

record indicates, the boys entered the property together, they

journeyed across the same path leading into the excavation pit

simultaneously, and they became entrapped in the muddy soil within

moments of each other.    Their deaths were both caused, at least in
part, by the freezing temperature of the air and water.   Three days

later, their bodies were found lying only inches apart.    Based on

these significant temporal and geographical facts, it is difficult

to conclude that the claimed losses resulted from more than one

occurrence.

  Because the boys’ deaths resulted from a single cause and were

not sufficiently separated in space or time, we are compelled to


                                  9
 conclude that the general liability insurance policy is limited

to the maximum coverage ($1 million) for a single "occurrence."

                                   CONCLUSION

      The judgment of the circuit court of Will County is reversed.

      Reversed.

      CARTER, J., concurs.

      JUSTICE WRIGHT, dissenting:

      The majority correctly cites to Nicor, Inc. v. Associated

Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 419-20

(2006), wherein our supreme court established that Illinois would

follow the cause approach to define an occurrence for purposes of

general insurance        liability      policies.    However,   I    respectfully

dissent from the majority’s employment of a “time and space” test

to   determine    that   these    two    tragic     accidents   constitute      one

“occurrence.” Based on Nicor, I reach the opposite conclusion

      In Nicor, our supreme court explained the cause approach:

           “[W]here each asserted loss is the result of a separate

           and     intervening       human    act,    whether       negligent   or

           intentional, or each act increased the insured’s exposure

           to liability, Illinois law will deem each such loss to

           have arisen from a separate occurrence within the meaning
           of     liability      policies     containing    [per      occurrence]

           language.” Nicor, 223 Ill. 2d at 431-32.

Under Nicor, the inquiry should be whether each accident resulted

from a separate and “intervening” human act, not whether the

accidents were closely related in space and time. The focus should

be on the specific event or events that triggered liability. Here,

liability was not incurred when the boys entered the property. Nor


                                         10
did liability arise from the owner’s negligence in failing to

secure or warn of a dangerous condition. Rather, liability attached

only    when     the   first   boy   entered       the    pit.   The    separate        and

“intervening” human act, as found by the trial court and undisputed

by the parties, was the second boy’s decision to enter the pit in

an heroic, yet failed, rescue attempt.

       We must keep in mind, the boys did not die because of their

decision to enter the property. Each boy lost his life as a result

of his individual, separate decision to enter the pit for a

different purpose. Consequently, I believe the proper focus is not

on how the boys entered the property, but how each boy entered the

water and subsequently perished.

       This approach was adopted in Mason v. Home Insurance Co. of

Illinois, 177 Ill. App. 3d 454 (1988), and cited by our supreme

court with approval. In Mason, separate bouts of botulism could

have been called the same occurrence arising from the same pool of

contaminated food. However, the court viewed each act of serving

the tainted food as an occurrence. Here, one hazard, deadly sand,

consumed     the   strength    of    each   boy     in    different     ways      and    at

different times.

       The majority relies upon the guidance of Illinois National
Insurance Co. v. Szczepkowicz, 185 Ill. App. 3d 1091, 1095 (1989),

decided prior to Nicor, which stated that a single accident or

occurrence will be found under the cause theory “ ‘[i]f cause and

result are so simultaneous or so closely linked in time and space

as     to   be   considered     by   the        average    person      as   one    event

[citation].’ ” The supreme court in Nicor did not adopt a “time and

space” inquiry as part of its cause theory analysis. Here, as


                                           11
horrific as it is to imagine, even under the “time and space”

inquiry, the autopsies corroborate what the physical evidence at

the scene revealed. The events that resulted in each boy’s death

did not occur simultaneously.

     The majority recognizes Addison bears the burden of proving

the single occurrence limitation applies, but then relieves Addison

of this burden. There is a distinct lack of direct evidence

regarding the circumstances of these occurrences. The evidence is

lacking because the boys remained undiscovered for days. The

difficulty of this case invites conjecture, but the reality is

there were no eyewitnesses to the boys’ entry into the hazardous

water. Addison has no direct evidence that the best friends entered

either the property or the pit together and such conclusion is

speculative. Consequently, Addison cannot establish either death

resulted from the same occurrence.

     The police rescue and investigation concluded the boys entered

the excavation separately, under two different circumstances, at

different times. One boy was found facing the bank with both feet

and legs embedded in the sand, while the other boy was found facing

the opposite direction with only one leg embedded in the sand. Two

officers testified it was likely Justice’s feet and legs were
entrapped in the sand when he attempted to jump over some water,

and Everett later entered the area and one of his legs became

entrapped as he attempted to rescue his friend. We do not know

whether Everett acted immediately, or contemplated entering the pit

for minutes or hours before he chose to enter the water. Sadly, the

autopsy revealed one boy perished from drowning and the other

succumbed to the cold, but the pathologist made no determination


                                12
regarding the separation of time between each death.

     Applying Nicor to the scenario advanced by Addison, one boy

became entrapped by accident, and the other boy deliberately

entered the   pit,   heroically   aware   of   the   hazard.   These   were

separate entries, separate intentions, separate acts, and should be

viewed as separate occurrences. The occasion of friendship should

not negate the separateness of each tragedy. If each boy had been

a stranger to the other, fishing at the same spot, the outcome

should be the same and support a finding of separate accidents.

     I respectfully dissent from the majority and would find, based

on Nicor, the trial judge correctly found that the boys’ deaths

resulted from separate occurrences.




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