Folz v. State

WILSON, Justice, concurring in part and dissenting in part.

I join in the majority opinion with respect to the emotional distress issue. Further, I agree with and adopt Justice Montgomery’s special concurrence regarding the uniform jury instruction on damages for wrongful death. I disagree, however, with the majority’s determination that the Department’s negligent acts and omissions gave rise to a single occurrence.

The term “occurrence” is not defined in the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1989); we are required, therefore, to interpret it in its ordinary, everyday sense. See United States v. Mayberry, 774 F.2d 1018, 1020 (10th Cir.1985) (word to be interpreted in its ordinary, everyday sense if not defined in statute). Webster’s Third New International Dictionary 1561 (1971) defines “occurrence” as “something that happens unexpectedly and without design.” This definition is consistent with the common usage of the words “accident” or “events” as explained in Saint Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689, 691 (5th Cir.1955): “It can hardly be denied that when ordinary people speak of an ‘accident’ in the usual sense, they are referring to a single, sudden, unintentional occurrence. They normally use the word ‘accident’ to describe the event [emphasis in the original], no matter how many persons or things are involved.” See also Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 135 (2d Cir.1986) (“occurrence” ordinarily understood to denote something that happens without design or expectation); but cf. Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp. 1368, 1379-1390 (E.D.N.Y.1988) (policy language reflecting intent of parties included new definition of “occurrence” to provide coverage for gradual, prolonged events that may be excluded by instantaneous connotation of “accident”; court therefore adopted standard for number of “occurrences” that was not result-oriented).

These three terms, “occurrence,” “accident,” or “event,” have been used synonomously by courts dealing with questions of interpretation similar to the issue before us today. See, e.g., Newmont Mines Ltd., 784 F.2d 127, 135 (2d Cir.1986) (“event” and “incident” correctly used interchangeably and synonymously with “occurrence”); Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172 , 305 N.E.2d 907, 910 , 350 N.Y.S.2d 895, 899 (1973) (“accident” and “occurrence” synonymous); Shamblin v. Nationwide Mut. Ins. Co., 332 S.E.2d 639, 644 (W.Va.1985) (“occurrence” was the “event,” the “collision,” or the “accident” from which liability arose). The facts and issues of the present case provide another appropriate context in which to discuss the meaning of these words within the framework of the classic dichotomy between cause and effect.

The majority combines two of the possible approaches suggested by Hartford Accident, namely, the proximate cause test and the event test, to create a new definition of occurrence. Its hybrid definition of “single occurrence” is as follows: “[A]ll injuries proximately caused by the governmental agency’s successive negligent acts or omissions that combined concurrently to create a singular, separate, and unitary risk of harm fell within the meaning of a ‘single occurrence’ when triggered by the discrete event of one runaway truck.” (Emphasis added.)

I believe a simpler and more practical approach is to determine whether there has been but “one event of an unfortunate character that takes place without one’s foresight or expectation.” Shamblin, 332 S.E.2d at 644 . Regardless of who or what created the risk of harm, the question is whether there was only one resulting “occurrence”; liability did not arise until there was an event, or in this case, a traffic accident.

In Shamblin the insured argued that the two separate acts of negligence by two of its employee-drivers in two of its insured vehicles required a conclusion that there were two “occurrences.” The Supreme Court of Appeals of West Virginia disagreed, stating:

In the case before this Court there may or may not have been two antecedent negligent acts but there was only one resulting “occurrence,” the event from which liability arises, namely, the collision. The subject matter of the insurance is not “cause[s]” but “liability” and the basis for liability is an event (the collision) resulting in bodily injury or property damage. “[A]n occurrence means one event, not several events, and the question here is which event is the occurrence contemplated by the policy definition. The cases have consistently construed ‘occurrence’ or ‘accident’ in liability policies to mean the event for which the insured becomes liable, and not some antecedent cause of the injury.”

Shamblin, 332 S.E.2d at 644 (quoting Champion Int’l Corp. v. Continental Casualty Co., 546 F.2d 502, 508 (2d Cir.1976), cert. denied, 434 U.S. 819 , 98 S.Ct. 59 , 54 L.Ed.2d 75 (1977)). The Skamblin court also cited Hartford Accident as “[ajnother case equating ‘occurrence’ with a single liability-triggering ‘event,’ regardless of the details of how or why the event happened.” Skamblin, 332 S.E.2d at 644 . Quoting Hartford Accident with approval, the Skamblin court reflected:

The [.Hartford Accident ] court therein held that there was only one “occurrence,” not two occurrences, within the meaning of an automobile liability insurance policy, when an insured vehicle struck one oncoming vehicle and, then ricocheted off and struck a second vehicle more than 130 feet away. The court recognized three approaches to determining whether there was one or more than one “occurrence” for liability insurance purposes: (1) looking to the proximate cause of the injuries or damages, (2) looking to the number of persons suffering a loss, and (3) looking to that one event of an unfortunate character that takes place without one’s foresight or expectation and which is objectively descriptive of what happened. The court concluded that the third approach was the most practical of the three approaches. In applying this “event” test the court examined the closeness in time of the two impacts (only instants apart) and stated: “We think in common understanding and parlance there was here but a single, inseparable ‘three-car accident.’ ”

Shamblin, 332 S.E.2d at 644 (quoting Hartford Accident, 33 N.Y.2d at 174 , 305 N.E.2d at 910 , 350 N.Y.S.2d at 899-900 ).

In its opinion in the present case the majority concludes that the one event of an unfortunate character which took place without foresight or expectation and which is objectively descriptive of what happened was a runaway truck. While I agree that the runaway truck, as well as the construction operation and the vehicle escort procedure, caused the accident, none of these circumstances alone was the event from which the liability arose nor are they objectively descriptive of what happened. Instead, I am convinced by the analysis in the Skamblin case that, despite the many antecedent causes, the resulting occurrence from which liability arose was the collision or the traffic accident.

In determining whether there was a single accident (occurrence) or a series of accidents (occurrences), it is appropriate and helpful to examine the anatomy of a traffic accident. Fortunately, we have the benefit of a great body of knowledge from the study and experience of experts in this field. Authorities agree that a traffic accident may be broken down into at least four segments as follows: (1) point of perception; (2) period of evasion; (3) point of no escape; and (4) point of impact (first contact). The point of perception occurs when a driver perceives that an accident is imminent. The period of evasion is that period of time when the driver takes evasive action to avoid the accident. The point of no escape is that point reached when evasive tactics are superfluous and an accident is unavoidable. The point of first impact, or first contact, is when the vehicle or vehicles actually collide. See J. Baker & L. Fricke, The Traffic-Accident Investigation Manual 15-26 (9th ed. 1986).

By analyzing an accident through its various segments, it is possible to determine whether an accident was a single occurrence with its segments identical or whether the accident was a series of occurrences with its segments separate and distinct. Two comparative hypotheticals are illustrative.

Assume that an obstruction blocks the traffic lane of a highway. Driver A approaches the obstruction and stops in the traffic lane; Driver B approaches and stops behind Driver A. Driver C approaches, is unable to stop, and crashes into Driver B. Driver B is carried forward into Driver A; Driver A is carried forward into the obstruction. In this hypothetical, the only point of perception is the point of time at which Driver C perceives that a collision is imminent. Drivers A and B may not perceive any danger at all. The period of evasion is when Driver C attempts to stop or avoid colliding with Driver B. Neither Driver A nor Driver B may be in positions to take evasive action as they are already stopped by the obstruction. The point of no escape is that point of time when Driver C cannot stop or turn and collides with Driver B. This point is, effectively, the same for all of the drivers and vehicles as the impacts are, for all intents and purposes, simultaneous, overlapping, or otherwise indistinguishable. From my analysis, this was a single accident or occurrence.

Assume, however, that Driver A approaches the obstruction and crashes into it. Driver B approaches and crashes into Driver A. Driver C now approaches and crashes into Driver B. In this hypothetical, the point of perception is the point of time that each individual driver sees that the highway is obstructed and a collision is imminent. The period of evasion for each driver is when each is attempting to stop or avoid the collision. The point of no escape for each driver is that point of time when each cannot avoid a collision. Likewise, the impacts are clearly separate and distinct. From my analysis, the second hypothetical was a series of distinguishable accidents or occurrences.

The task now is to determine whether the accident in the case before us more closely fits the first hypothetical or the second. Conveniently, the accident under discussion is an excellent example to make this analysis. The runaway truck came downhill in the westbound lane where a series of cars had stopped at the construction site. Had the truck collided into the rear car causing an accordion-type crash, this accident, like the first hypothetical, would meet the criteria for a single occurrence. However, the runaway truck managed to pass the cars stopped in the westbound lane and continued on to sideswipe an oncoming vehicle which was attempting to regain the eastbound lane. The truck then continued downhill, striking three other vehicles before colliding with a construction vehicle which burst into flames. Each of the five vehicles involved in the collisions had different points of perception, had varying periods of evasion, had successive points of no escape, and had separate and distinguishable points of impact.

For the reasons stated above, I respectfully dissent from the majority’s definition of “single occurrence” as used in Section 41-4-19(A)(3) of the Tort Claims Act.