Insurance Policy Provision About Continuous Exposure to the Same Harmful Conditions Arising Out of One Occurrence
In Bausch & Lomb Inc. v. Lexington Ins. Co., 679 F Supp 2d 345, 351 [WD NY 2009], the underlying claimants alleged bacterial or fungal infections in their eyes from using certain Bausch & Lomb contact lens solutions (679 F Supp 2d at 347).
Over 2,000 claims were made against Bausch & Lomb (id. at 348).
The policies contained language providing "that all accidental repeated or continuous exposure to the same or substantially the same harmful conditions shall be considered as arising out of one occurrence" (id. at 354).
The District Court concluded that:
"The alleged injuries suffered by the claimants took place in separate locations across several continents, and at different times, and involved different types of infections, including bacterial or fungal infections.
As a result, it can not be said that the claimants were exposed to the same or substantially the same harmful conditions.
Rather, it was each individual's exposure to the solution, under conditions unique to each individual, that constituted the accident that caused the injury.
Because these exposures were separate and distinct, they cannot be combined under the grouping provision of the ... policies" (at 355).