years. Aetna's liability as excess insurer would, of course,
Whether the events in question are properly characterized as
a single "occurrence" or multiple is a question of causation.
A series of related injuries comprise a single "occurrence,"
for the purposes of an insurance contract, where they all flow
from a single cause. See, e.g., Appalachian Ins. Co. v. Liberty
Mutual Ins. Co., 676 F.2d 56, 61-62 (3d Cir. 1982) (series of
backpay awards arising from a single discriminatory company
policy constitute a single occurrence). Where each injury
results from an independent cause, there are a series of
"occurrences." See, e.g., Liberty Mutual Ins. Co. v. Rawls,
404 F.2d 880 (5th Cir. 1968) (Second collision after driver of
vehicle regained control a separate occurrence from first
collision). Here, Aetna argues that Janice's pediatrician
regained control over the situation each time Janice visited
the office. Therefore each prescription was the result of an
But the stipulated facts indicate that Janice's pediatrician
never regained "control" over the situation. Indeed, the
theory of malpractice upon which the Thurstons prevailed in
state court was that her doctor failed to properly control
Janice Thurston's usage of Neodecadron. The original diagnosis
of Janice's conjunctivitis was never reevaluated. Nor did her
doctor ever attempt to discern whether Janice's usage of the
drug had exceeded safe levels. During the subsequent series of
office visits, many for standard childhood "cuts and bruises,"
attention was focused only rarely upon Janice's conjunctivitis
and her use of Neodecadron. While opportunities to regain
control may have presented themselves, they were never
exercised by a reevaluation of the original diagnosis or the
original form of treatment that was prescribed.
Absent some independent evaluation of the prior diagnosis
and treatment, the succeeding office visits cannot be regarded
as the causes of the prescription refills. To so characterize
these events would be to cut short the search for the cause of
Janice's injury. There was one diagnosis and one course of
treatment prescribed. All prescription refills and all the
resulting injuries to Janice Thurston flowed from that single
"occurrence" just as surely as the back-pay awards flowed from
the single policy of discrimination in Appalachian Ins. Co.
There, as here, only one decision was made. Any subsequent acts
simply implemented that prior decision.
Further, the Court notes that Aetna's notion of "injury" is
a very troubling aspect of its argument. Underlying Aetna's
argument that each office visit was a separate occurrence is
an argument that each application of Neodecadron to Janice's
eyes resulted in independent, compensable injuries. Accepting
this controversial position as true, the Court is still unable
to ascertain the extent of each of these independent injuries.
A trained opthamologist examined Janice on December 20, 1973,
after she had applied five of the seven prescribed tubes of
Neodecadron. That examination revealed no elevation of
intraocular pressure, no damage to the optic nerves. Therefore,
even if each office visit were an occurrence that caused some
injury to Janice's eyes, there is no proof that the extent of
these injuries met or exceeded Medpro's $200,000 per occurrence
policy limit. Even if the Court were convinced that there were
a series of "occurrences" under the Medpro policy, summary
judgment for Aetna would be inappropriate absent proof of the
extent of damages resulting from each occurrence.
Since the malpractice award resulted from a single
occurrence, as defined in the Medpro insurance policy, Aetna
is not entitled to any amount in excess of the $200,000
previously paid by Medpro.
IT IS THEREFORE ORDERED that
(1) Aetna's motion for summary judgment is denied; and
(2) Medpro's motion for summary judgment is granted.