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Vol. 12 - Issue 4

May 8, 2023


SCOTUS And Number Of Occurrences -- In 1874!


Ok, there’s some hyperbole in that headline, but not entirely.  Imagine my surprise when, while doing research for the Wall Street Journal horse racing piece addressed above, I came upon Travelers Ins. Co. v. Seaver.  This is an 1874 United States Supreme Court case, addressing coverage under a life insurance policy, where the concept of number of occurrences was central to the court’s decision. 

[I’m not sure how this life insurance dispute, involving nothing more than the applicability of a policy exclusion, got to SCOTUS.  That sure isn’t happening today.  I guess things were different in 1874.  In any event, fine points of U.S. Supreme Court jurisdiction isn’t something I’m versed in.]

A man named Seaver was killed during a horse race in Morrisville, Vermont.  He had been riding in a sulky – a two-wheeled seat behind the horse (harness racing) – when his sulky collided with another horse’s sulky.  Seaver jumped out of his seat and landed on his feet, uninjured.  All would have been fine if he had just stayed there.  But, instead, he called out to his horse, who slowed down, and then Seaver ran toward her to get hold of the reins to stop her.  But Seaver became entangled in the reins and was dragged by the horse until his head hit a stone. He died the next day.

His wife, Elizabeth Seaver, sough the benefits of a life insurance policy on her husband.  Travelers denied the claim, citing a policy exclusion for death “caused by dueling or fighting, or other breach of the law on the part of the assured, . . . or by his willfully exposing himself to any unnecessary danger.”  Mrs. Seaver filed suit.

The key to the case was the cause of Mr. Seaver’s death.  First, at the time of his death, he was engaged in a horse race where a large sum of money had been wagered.  A Vermont statute, against wagering on a horse race, clearly declared Seaver’s act to be a misdemeanor.  However, the collision between the sulkies may have been caused by Gilmore, the other rider, engaging in an improper racing maneuver in an effort to get the inside track. 

The coverage dispute went to trial and the jury found for Mrs. Seaver.  The U.S. Supreme Court reversed and granted a new trial.

At issue was the propriety of a lengthy jury charge concerning the cause of Mr. Seaver’s death. It is too tedious to address it all here.  But one aspect of the charge was as follows: “That if the jury should find that Seaver was killed by the race itself, by an ordinary accident of the race, so that the race was the proximate cause of the death, the plaintiff could not recover; but if the jury should find that Gilmore turned his horse in intentionally and tortiously, with the purpose of winning the race at all hazards, whether he should crowd Seaver from the track or not, then that the conduct of Gilmore and not the race would be the proximate cause of the death, and the plaintiff would be entitled to recover.”

In essence, if Seaver was killed by an ordinary accident of the race, then his wife could not recover as he had been engaged in an illegal act and the policy exclusion -- breach of the law or by willful expose to any unnecessary danger -- would apply.  But if Seaver had been killed because of Gilmore’s improper riding, then policy proceeds were owed.

By its verdict, the jury concluded that Seaver’s death was not caused by the violation of the law “in trotting for a wager.”

However, the U.S. Supreme Court’s Justice Miller saw it differently and reversed and granted a new trial:

“But we do not think this new force or cause is sufficiently made out by this verdict. The leap from the sulky and securing the reins, and the subsequent fall and injury to Seaver are so close and immediate in their relation to his racing, and all so manifestly part of one continuous transaction, that we cannot, as this finding presents it, say there was a new and controlling influence to which the disaster should be attributed. If he had been landed safely from his sulky and, after being assured of his position, had, with full knowledge of what he was doing, gone to catch the animal, his death in that pursuit when the race was lost might have been too remote to bring the case within the exception.

“But as the finding presents it, we cannot say that the accident was not caused by the race which was itself a violation of the law, and which might still have gone on had he caught his mare in time.”

While the court was not addressing number of occurrences in the traditional CGL-policy sense, the decision has similarities to courts today that are confronted with counting occurrences.  Most states adopt the “cause test” to determine number of occurrences.  While that can often lead to a finding of a single cause for all injuries, not always.  Sometimes multiple injuries have multiple causes – even if the court is required to apply the “cause test.” 

In making this determination, courts sometimes look at whether causes are simultaneous or linked in time or space.  Or does the role of intervening acts lead to multiple causes? 

And that’s not unlike what was in Justice Miller’s mind when addressing the cause of Mr. Seaver’s death.  Was there simply one cause of Mr. Seaver’s death – everything was tied to the illegal horse race?  In other words, everything was so closely related to the horse race that it was all part of what he called “one continuous transaction.”  Or is it possible that there was, in the Justice’s terms, a “new and controlling influence” – a non-illegality that happened after Seaver came off the sulky -- that caused his death?

Certainly a neat 150-year-old find!





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