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 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 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 reheves 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 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.