When There are Two Damage Causing Events The Aggregate Limit Applies
Post 5078
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In February 2024, in the matter of Ciara Kilburn, et al. v. Bill Simmon, et al., 20-CV-461, a jury returned a plaintiffs’ verdict against Defendant The Media Factory f/k/a Vermont Community Access Media, Inc. (“VCAM”) and one of its employees.
VCAM’s liability insurer, plaintiff Hanover Insurance Company (“Hanover”) sued VCAM and the plaintiffs in the underlying suit, seeking a declaration as to the scope of its coverage obligations with respect to that verdict.
In The Hanover Insurance Company v. The Media Factory f/k/a Vermont Community Access Media, Inc. et al, 2025 Vt Super 051401, No. 24-CV-03700, Superior Court of Vermont, Civil Division, Chittenden Unit (May 14, 2025) decided how many occurrences impinged on the Hanover policy.
BACKGROUND
In the underlying action, Ciara Kilburn and Brona Kilburn alleged that in 2012 Bill Simmon, then an employee of VCAM, used a hidden camera to record them changing in and out of costumes in a utility room and then posted those videos on the internet. The women subsequently sued Simmon and VCAM. The jury found that Simmon invaded Ciara and Brona’s privacy and that VCAM negligently supervised Simmon. It awarded Ciara and Brona $1.75 million each from Simmon in compensatory damages, another $1.75 million each from VCAM in compensatory damages, and another $2 million each from Simmon in punitive damages.
THE INSURANCE
Hanover Commercial Line Policy No. ZHV 8849689 07 (“the Policy”) insured VCAM. The CGL Coverage Form describes the two coverages at issue here: Coverage A insures against “Bodily Injury and Property Damage Liability,” while Coverage B insures against “Personal and Advertising Injury Liability.”
Hanover issued no reservation of rights with respect to its obligations under the Policy. Rather it engaged counsel to represent VCAM and subsequently controlled that defense.
DISCUSSION
Hanover seeks a declaration that there can be no recovery under “Coverage B,” that there was only a single “occurrence” under Coverage A, and that VCAM’s coverage under the Policy is therefore limited to the $1 million per-occurrence limit.
There is no dispute that the most Hanover can owe under the Policy, whether under Coverage A, Coverage B, or any combination of the two, is the Policy’s aggregate limit of $2,000,000. A decision either that there were multiple occurrences or that Coverage B applies will leave the full aggregate limit exposed.
Because it did not reserve rights Hanover is now estopped from making the argument it should have reserved long ago.
The court concluded that Hanover’s aggregate limit, rather than the single occurrence limit, applies.
Focusing on the immediate cause-that is, the act that causes the damage-rather than the underlying tort-that is, the insured’s negligence-is consistent with the interpretation of other forms of insurance policies. An occurrence takes place at the time the party is actually damaged, rather than at some other moment when an allegedly wrongful act sets in motion the chain of events that eventually leads to the injury.
The Court found that sexual abuse does not fit neatly into the policies’ definition of continuous or repeated exposure to conditions. The jury verdict form further reflects that there were two “occurrences”: The jury found that Mr. Simmon invaded the Kilburns’ privacy by “taking the photos/videos” and also by “posting the photos/videos online/sharing them with a stranger.” The court rejected Hanover’s self-serving interpretation of the verdict form and instead concluded that there were two “occurrences” under the Policy.
The court denied Hanover’s motion and granted VCAM’s motion in part. The court declared that Hanover owes VCAM a duty of indemnification under Coverage A of the CGL coverage part of the Policy, up to its aggregate CGL coverage limit of $2,000,000, against the verdict obtained by the Kilburns in the underlying suit.
The determination that Hanover owes this duty under Coverage A moots any consideration of obligations owed under Coverage B.
VCAM and the Kilburns are entitled to judgment as a matter of law on Hanover’s Complaint.
ZALMA OPINION
When an insurer fails to advise its insured that it intends to reserve its right to limit coverage to a single limit of liability it essentially waives the right to make that claim. In this case, since there were obviously, at least, two separate actions causing damage to the underlying case’s plaintiffs which were two “occurrences” as defined in the policy and impinged two separate policy limits and requires Hanover to pay its full aggregate limit.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
Claims Commandment X – Thou Shall Not Pretend to be a Lawyer
Some experienced and professional claims people know the law in their area of expertise better than most lawyers.
Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.
Claims Commandment XI – Thou Shall Empathize With the Claimant
Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.
Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM
See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.
Post 5217
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...
The Professional Claims Handler
Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
