Kathryn Hollis v. Lexington Insurance Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-00290-JCC-JFA. Copies to all parties and the district court. [1000046862]. Mailed to: Jacqueline Gass & Kimmel Schaefer (Schaefer Pyrotechnics). [16-1533]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1533

KATHRYN T. HOLLIS; ANDRE D. HOLLIS; M.H., an infant, by and
through his father and next friend, Andre D. Hollis,
Plaintiffs - Appellants,
v.
LEXINGTON INSURANCE COMPANY; AXIS SURPLUS INSURANCE COMPANY,
INC., d/b/a Axis, d/b/a Axis Insurance, d/b/a Axis Capital,
d/b/a Axis U.S. Insurance; SCHAEFER PYROTECHNICS, INC.;
KIMMEL R. SCHAEFER; JACQUELINE M. GASS,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:15-cv-00290-JCC-JFA)

Submitted:

March 3, 2017

Decided:

March 22, 2017

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Nathan D. Rozsa, Scott A. Surovell, SUROVELL ISAACS PETERSEN &
LEVY PLC, Fairfax, Virginia, for Appellants. Paul D. Smolinsky,
JACKSON & CAMPBELL, P.C., Washington, D.C., for Appellee
Lexington Insurance Company.
H. Robert Yates, III, O’HAGAN
MEYER PLLC, Richmond, Virginia, for Appellee Axis Surplus
Insurance Company, Inc.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kathryn Hollis and her two sons received injures from a
fireworks explosion.

The underlying state court action alleges

that the fireworks company, its president, and another employee
committed 19 breaches of duty that resulted in M.H.’s injuries.
The issue in this declaratory judgment action is whether the
underlying

complaint

alleges

a

single

occurrence

or

19

occurrences under the fireworks company’s applicable insurance
policy with Lexington Insurance Company.

The policy covers up

to $1 million per occurrence and $2 million in the aggregate.
In the present declaratory judgment action, the district
court, ruling on cross-motions for summary judgment, found that
the underlying complaint alleged one occurrence.

We agree and

thus affirm.
We review a district court’s resolution of cross-motions
for summary judgment de novo.
516, 523 (4th Cir. 2003).
summary

judgment

when

no

Rossignol v. Voorhaar, 316 F.3d
A district court may only award

genuine

dispute

of

material

fact

remains and the record shows that the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

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Here,

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the

district

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court

resolved

favor of the insurer, Lexington. *

the

cross-motions

in

The dispute is subject to

Pennsylvania law.
In

the

liability

insurance

context,

Pennsylvania

applies a cause approach to defining occurrences.

law

Donegal Mut.

Ins. Co. v. Baumhammers, 938 A.2d 286, 293 (Pa. 2007).

Under

the cause approach, Pennsylvania courts find a single occurrence
if there “was but one proximate, uninterrupted, and continuing
cause

which

resulted

in

all

of

the

injuries

and

damage.”

D’Auria v. Zurich Ins. Co., 507 A.2d 857, 860 (Pa. Super. Ct.
1986); see also Baumhammers, 938 A.2d at 294-95.
Here, regardless of the number of alleged negligent acts or
victims,

the

injuries

have

a

single

proximate

cause

—

misfired firework that exploded near Kathryn and her sons.
Baumhammers, 938 A.2d at 296.

the
See

Because the injuries only have

one cause, only one occurrence took place.
Accordingly, we affirm the district court’s order resolving
the cross-motions for summary judgment in Lexington’s favor.
dispense

with

oral

argument

because

*

the

facts

and

We

legal

The district court found the claim against the excess
insurer,
Axis,
non-justiciable.
The
Hollises
have
not
challenged that ruling on appeal.

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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