There is a lot to a commercial general liability policy. But its most fundamental aspect, hands down, no argument to the contrary, is that it provides coverage for “accidents.”

Yet, despite this, there is no general liability coverage issue that is litigated more frequently than “what is an accident?” The reason – nobody can agree on what’s an accident. But how is that possible? How can the very essence of a liability insurance policy not be understood by all concerned? Admittedly, I’m not saying anything novel here. Fifty-plus years ago the Pennsylvania Supreme Court made this same observation in Brenneman v. St. Paul F. & M. Ins. Co. (Pa. 1963):

“Everyone knows what an accident is until the word comes up in court. Then it becomes a mysterious phenomenon, and, in order to resolve the enigma, witnesses are summoned, experts testify, lawyers argue, treatises are consulted and even when a conclave of twelve world-knowledgeable individuals agree as to whether a certain set of facts made out an accident, the question may not yet be settled and it must be reheard in an appellate court.”

The question whether something was caused by an “accident” gets the nod as the longest running insurance coverage issue (in conjunction with more recent “expected or intended” exclusion cases, which can overlap liability policy “accident” cases).

The earliest American insurance case that I could find, addressing whether an “accident” took place, is Howell v. Cincinnati Ins. Co., from the Ohio Supreme Court in 1835. At issue was coverage for a boat that sank. [The “accident” issue arose in coverage disputes before the advent of liability insurance.]

And some ancient “accident” cases seek guidance from even more ancient cases, often times English ones with strange citations that very few lawyers practicing in this country understand. The question whether something was caused by an “accident” has been keeping judges, including ones in wigs, busy for a very long time.

But it’s not just that there are a lot of really old cases addressing the “accident” question. The other very interesting fact is that some of these cases look remarkably similar to ones that were decided yesterday. In other words, not only have American courts been grappling, for 180 years, with the coverage question whether injury or damage was caused by an “accident,” but some of the arguments haven’t changed much.

This brings me to a February 27th article in Law360 that addressed “what’s an accident” under California law. In “California High Court Has A Chance To Define Accident,’” Covington & Burling’s Gretchen Hoff Varner and Broer Oatis discuss Liberty Surplus Insurance Co. v. Ledesma and Meyer Construction Co. Inc., a case then to be argued before the California Supreme Court on March 6.

Ledesma involves potential coverage for claims arising out of a construction company employee’s sexual assault of a student, at a middle school, where the company had been working. In the subsequent suit by the student it was alleged that the construction company was liable for negligent hiring and supervision of the employee. At issue – whether coverage for a defense and indemnity was owed to the school district and construction company, under the construction company’s general liability policy. The insurer argued “no accident” as the employee had committed an intentional tort. However, the issue at hand wasn’t coverage for the employee’s intentional tort, but, rather, the construction company’s negligent hiring and supervision of the employee. The federal district court found for the insurer. The case went to the Ninth Circuit, which certified the issue to the California high court.

Covington’s Varner and Oatis note that California law lacks clarity on the question of what is an accident. They point to cases stating that an accident takes place “if an act or the consequences of an act are unexpected, unforeseen or undesigned.” However, the San Francisco lawyers also note that, in other California appellate court decisions, the “unexpected consequences” prong of the definition of “accident” is disregarded and the courts looks “only at the specific act that caused the injury when determining whether an accident took place.”

Noting this disparity, the authors state that Ledesma provides the California Supreme Court with “the opportunity to answer, once and for all, the following question: When insurance policies refer to an ‘accident,’ what does that mean?”

The Covington duo does a very nice job of discussing what they see as a lack of clarity, under California law, on the “accident” issue. And I agree with them that Ledesma provides the opportunity for a definitive definition of “accident” under California law. When it comes to defining things, supreme courts -- with three-part tests, balancing tests, totality of the circumstances -- are at their best.

However, even if a definitive definition of “accident” comes out of Ledesma, it will not necessarily decrease the amount of litigation over whether a certain injury or damage was caused by an accident. Accident cases flourish nationally not because the term “accident” wants for definitions. It is the application of the facts to the definition that cause the disputes. Determining whether the consequences of an act are unexpected, unforeseen or undesigned is an open invitation for disagreement.

As Justice Musmanno stated in Brenneman: “Everyone knows what an accident is…” And therein lies the problem. Whatever the legal definition of “accident” may be, its application contains an element of “I know it when I see it.”