CSX Transportation, Inc. v. Continental Insurance

²²⁰ BELL, Judge. This appeal had its genesis in an action for declaratory judgment to resolve a coverage dispute with CSX Transportation, Inc. (“CSXT”), filed in the Circuit Court for Baltimore County by several insurance companies. At the center of the coverage controversy was what constitutes “an occurrence” and the number of occurrences giving rise to the noise induced hearing loss (“NIHL”) suffered by past and present employees of CSXT’s predecessor railroads. After trial, pursuant to special jury verdicts, the trial court entered judgment in favor of the insurers.

The court declared that, because the subject excess liability insurance policies do not provide coverage, the payments CSXT made with respect to the NIHL claims made against it were not reimbursable. We granted certiorari, on our own motion, prior to consideration of CSXT’s appeal by the Court of Special Appeals. The issues on this appeal are the propriety of certain instructions the trial court gave the jury, whether various trial instructions requested by CSXT should have been given, and the correctness of the trial court’s grant of partial summary judgment in favor of some of the insurers on the issue of whether NIHL is an occupational disease. I. Harbor Insurance Company and Pacific Insurance Company 1 , the appellees, filed, in the Circuit Court for Baltimore County, a complaint seeking declaratory relief against a number of railroads that, over the years, and up to and including 1986, had purchased excess liability insurance from them.

Through a series of mergers and acquisitions, the policyholder railroads now comprise CSXT, which has acquired the assets of the railroads and assumed their liabilities, including the NIHL claims at issue. They joined in the action other insurance carriers from whom the railroads had purchased ²²¹ additional excess liability coverage. The declaration the appellees sought was a determination of the amount of excess liability coverage that was available to the railroads for long-term NIHL claims their present and former employees had asserted under the Federal Employers’ Liability Act (“FELA”). 2 CSXT filed cross-claims and counterclaims for declaratory and supplementary relief. The appellees asked the trial court to declare that each employee’s NIHL claim arose from a separate occurrence, that, from the standpoint of each insurance policy, the thousands of NIHL claims were separate and individual and, hence, necessarily arose from multiple occurrences.

For its part, CSXT asked the trial court to declare that CSXT, as the successor to the individual railroads, was entitled to be reimbursed for what it had already paid in resolution of the NIHL claims. Contrary to the appellees’ position, CSXT urged that the NIHL claims filed against a policyholder railroad constitute but one occurrence for purposes of the applicable excess liability policies, all such claims having resulted from two “common causes”: the claimants’ exposure to hazardous noise and the failure of the policyholder railroads to mandate system-wide hearing protection, 3 which would have prevented the hazardous exposure. At the heart of this case are 246 insurance policies purchased by CSXT’s predecessors. Each policy contained a self-insured retention (“SIR”) feature, 4 under which the policyhold ²²² er agreed to self-insure a portion of the liability for each occurrence; the coverage provided by the policy does not become effective until the agreed upon SIR limit is reached.

In other words, each railroad agreed to assume responsibility for both the defense and indemnity of claims up to a certain dollar amount before the insurance company’s obligation in that regard took effect. The SIR limits on the policies sub judice ranged from $100,000 to $3 million dollars. Pursuant to the applicable excess liability policies, the appellees are obligated to indemnify their insureds for “all sums” that the insureds become obligated to pay “because of personal injury or property damage caused by an occurrence.” This obligation includes third-party claims, such as FELA actions filed by the railroads’ employees. Personal injury under the policies includes “bodily injury, mental anguish, shock, sickness or disease.” Some policies contained an aggregate limit for occupational diseases.

Those policies restricted the amount of recovery for such liability to a stated amount, no matter how many occurrences there may have been. Certain policies also contained a “cessation from work” clause, pursuant to which a claimant could recover only if he or she had stopped work during the policy period. Although not all do so, many of the policies define “occurrence.” Most of the policies that define occurrence describe it as “an accident, including continuous or repeated exposure to ²²³ conditions, which result in personal injury or property damage neither expected or [sic] intended from the standpoint of the insured.” Other policies define “occurrence” as “one or more accidents or series of accidents arising out of or resulting from one event.” Still others define it to mean “(a) [a]n accident, or (b) [a] continuous or repeated exposure to conditions which result in personal injury or property damage which is neither expected nor intended from the standpoint of the Insured.” 5 In addition, many of the policies contain a “Limits of Liability” section, which provides, in pertinent part: For the purpose of determining the limit of [the insurance company’s] liability, all personal injury ... arising out of continuous or repeated exposure to substantially the same general condition existing at or emanating from one location or source shall be considered as arising out of one occurrence. Like CSXT, we shall refer to this portion of that section as the “one occurrence clause.” Certain factual issues, namely, what constitutes an occurrence under the various insurance policies and the number of occurrences were tried to a jury.

Having the burden of proof, CSXT offered evidence tending to prove its allegations and the insurers cross-examined the witnesses it presented. At the conclusion of CSXT’s case, the insurers elected not to present a case. CSXT agrees with the insurers that, in defining “occurrence” under the policies, the appropriate focus is on the cause of the worker’s injury; that means, in the words of some of the policies, the “event” out of which the accident or series of accidents arose or resulted. CSXT does not agree with the insurers, however, as to what that cause was.

Rather, CSXT believes that NIHL resulted not only from the unprotected exposure to hazardous noise, but also from the failure of each ²²⁴ policyholder management group to mandate hearing protection. The evidence it presented was designed to substantiate that proposition. It was for this reason that CSXT produced testimony concerning the history of NIHL claims. Its witnesses placed the start of what CSXT terms “a tidal wave of NIHL claims” in 1988.

Before that time, they testified, CSXT, and the predecessor railroads, had experienced only thirteen such claims. CSXT also offered evidence concerning the pervasiveness of noise in the railroad industry. Witnesses testified that the NIHL claims CSXT’s predecessor railroads received derived from the various crafts in the different parts of the railroads. Indeed, CSXT presented testimony that hazardous noise is inherent in a railroad’s three principal operating departments: transportation, which moves freight on the rail system; engineering, which is responsible for the maintenance of the tracks and roadbeds; and mechanical, which has responsibility for maintaining a system’s equipment in its various shops and yards.

Hazardous noise could not be eliminated from these operations, the witnesses for CSXT testified, either by removing the noisy machines or reducing the level of noise. CSXT offered evidence to substantiate its belief that it is impossible to pinpoint, with any specificity, the precise location, or locations, at which a particular NIHL claimant was exposed to hazardous noise. CSXT witness, Dr. Joseph Sataloff, one of the foremost experts on NIHL and its prevention, 6 explained how NIHL develops. He said that it is caused by the unprotected exposure to hazardous noise over time.

Hazardous noise, he said, is noise which exceeds 90 decibels over an eight hour work day. Such noise produces “very strong pressure waves that go through the air ... [and] hit the hair ²²⁵ cells [of the inner ear] ... [and] damage ... the hair cells____” More specifically, he explained: When these hair cells are damaged, first it is temporary. Like you shoot a gun, you have hearing loss and it clears up the next week. After awhile it gets permanent.

So if you have habitual exposure, day in and day out to repetitive injury from a loud noise from work or gun shooting, the hair cells become permanently damaged and at the present time we have no cure for it. Because the damage to the hair cells is caused by pressure waves hitting them, Dr. Sataloff testified that NIHL will occur whatever the source or origin of the noise: Well, as I said, noise is noise. It doesn’t matter which machine produces it, it is the same pressure waves and they always damage the inner ear, always the hair cells and the initial damage always shows as [sic] the three, four, five thousand cycles. So it doesn’t matter if it is from a jet airplane, from a gun, from a compressor, from a vacuum cleaner, the first damage, no matter what the sound is, if it is loud enough to cause damage[,] is characteristically the four thousand cycle dip.

Because there is hazardous noise throughout a railroad’s operations, and NIHL occurs over time, i.e. after ten to fifteen years of exposure, CSXT’s evidence tended to show, and it argued, that a particular claimant’s NIHL cannot be attributed to a particular piece of noisy equipment. This is so, it maintained, because, given the mobility of some noisy equipment, and the fact that more than sixty percent of the NIHL claimants worked in more than one of the principal operations departments of the railroads, particularly the transportation and engineering departments, a claimant may have been exposed to many pieces of noisy equipment over the time necessary for NIHL to develop. CSXT hoped to prove that the cause of the subject NIHL was the railroads’ failure to mandate protection from hazardous noise, the only means of preventing NIHL. Proceeding from the premises that noise is inherent in railroad operations ²²⁶ and that it is impossible to identify the noise source of NIHL — ie. a particular noise emitted by a particular piece of machinery — it reasons, as Dr. Sataloff stated, that “the only .way to solve ... [NIHL] immediately was with hearing protectors[;]” prevention is only possible if the mandatory wearing of hearing protectors is required.

Consistently, CSXT’s Director of Industrial Hygiene opined that noise from noisy locomotives is not hazardous when the workers wear hearing protection. CSXT pointed out that neither it, nor its predecessor railroads, mandated hearing protection in the 1980’s. It sought to correct that omission, the evidence suggested, by conducting noise exposure experiments and then adopting, from time to time, recommendations for expanding the scope of mandatory hearing protection. At the conclusion of the evidence, the court instructed the jury with respect to the issues it was to decide.

In pertinent part, the court instructed: You are instructed that a self-insured retention or SIR is that portion of a liability loss that is retained by a policyholder. In other words, an SIR is a form of self-insurance through which a policyholder protects against loss by setting aside its own money. The purpose of self-insurance of this type is to protect against high frequency, low severity losses, without incurring the additional premium expense that a policyholder would pay to an insurance company that would reflect the company’s general expenses associated with handling such high frequency, low severity losses. As I instructed you at the beginning of this trial, the sole questions you would be asked to determine are whether there have been occurrences as defined in the excess liability insurance policies at issue, and if so, the number of occurrences which have taken place.

An occurrence, under an excess liability insurance policy, must meet the definition of occurrence in the policy and be ²²⁷ determined [to be] the proximate cause of the injuries or damages at issue. Many things can be said to cause injury, but for you to determine what the occurrence is in this case, the law requires that you determine what the proximate cause was of the noise-induced hearing loss claims. Proximate cause in this sense is the cause which is nearest in the order of responsible causation to the resulting injuries, the cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, logically and probably produces the injury. As you have heard, it is the position of CSXT that the occurrence and the proximate cause of all of the NIHL claims is the failure of CSXT and its various predecessor railroads to mandate hearing protection for its employees.

It is the position of the insurers, on the other hand, that the proximate cause of each claim is the conditions of hazardous noise levels to which a railroad worker was exposed, that resulted in noise-induced hearing loss to that worker. You are instructed that the term accident, in a liability policy, is to be given its ordinary meaning, which is a sudden, unusual event, not under the control of the insured, which takes place at a particular point in time and gives rise toaloss.[ 7 ] Certain of the excess liability policies, purchased by the predecessor railroads, provide that, under certain circumstances, a number of separate claims for injury or damage may be aggregated. That is, combined and treated as a single occurrence. ²²⁸ The policy provision, that specifies the circumstances under which separate occurrences may be combined, reads as follows: For the purpose of determining the limit of the company’s liability, all personal injury and property damage arising out of continuous or repeated exposure to substantially the same condition existing at or emanating from one location or source shall be considered as arising out of one occurrence. You have heard this language referred to on occasion as the location or source language.

Under this language, if you find that the preponderance of the evidence proves that NIHL claims arose out of substantially the same general conditions existing at a particular location or emanated from a particular source, then you may treat all of the NIHL claims resulting from the continuous or repeated exposure to that source or location as one occurrence. On the other hand, if the evidence fails to demonstrate the claimants were exposed to substantially the same general condition existing at particular locations or emanating from particular sources, then you need not treat multiple NIHL claims as one occurrence. For the most part, the court had adopted the insurers’ requested instruction. The jury also was instructed that CSXT had the burden of proof with respect to both the meaning of “occurrence” and the number of occurrences.

To assist it in announcing its findings, the jury was given the following special written interrogatory: 1. Some of the excess liability policies in this case define “occurrence” as an “accident” or “series of accidents arising out of or resulting from one event.” Do you find that the railroad defendants have proved that the occupational hearing losses at issue are “accidents” or “series of accidents” under these policies: [ ]Yes [ ]No 2. Do you find that the “occurrence”, as that term is defined in various excess liability insurance policies, that ²²⁹ caused the noise-induced hearing losses allegedly sustained by railroad employees was: [check one only] A. the failure by each railroad management to mandate the use of hearing protection by employees, as contended by CSXT? or B. each NIHL claimant’s continuous or repeated exposures to conditions of excessive occupational noise, as contended by the Insurers? If your Answer to Question No. 2 is “A”, goon to answer the Question No. 3.

If your answer to Question No. 2 is “B” then skip the next question and proceed to answer Question No. A 3. Based upon the evidence presented to you, if you find that the occurrence is the failure by each railroad management to mandate hearing protection, how many such failures do you find? Answer:_ If your answer to Question No. 2 is “A” and you filled in a number in response to Question No. 3, then skip the remaining question and sign and date this verdict form. If your answer to Question No. 2 is “B”, then answer Question No. k. 4.

Based upon the evidence presented to you, if you find that the occurrence was each NIHL claimant’s continuous or repeated exposure to conditions of excessive occupational noise, what do you find is the minimum number occurrences? Answer:_ Finding the insurers’ view of “occurrence” to be persuasive, the jury returned a verdict in favor of the appellees. It determined that there were a minimum of 20,235 separate occurrences. It also found that CSXT failed to prove “that the occupational hearing losses at issue are ‘accidents’ or ‘series of accidents’ under these policies.” Having previously decided by grant of partial summary judgment in favor of the ²³⁰ insurers, that NIHL is an occupational disease, 8 the trial court entered final judgment declaring that the insurers were under no obligation to indemnify CSXT for the settlement of the NIHL claims.

It also entered judgment in favor of the insurers with respect to CSXT’s counter-claims and cross-claims. From these judgments, CSXT has noted its appeal.

II

The instructions given the jury in this case make quite clear that the test for determining whether an occurrence has taken ²³¹ place takes into account the cause of the resulting claims or injuries, a proposition with which CSXT is not in disagreement. The instructions were explicit in that regard; they required the jury to determine what the proximate cause of the NIHL claims was. Proximate cause was defined, by the instructions, in a manner consistent with the definition given that term by the appellate courts of this State. See Hartford Insurance Co. v. Manor Inn, 335 Md. 135, 154-157 , 642 A.2d 219, 229-230 (1994); Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116, 127 , 591 A.2d 507, 512 (1991) (to be proximate, the cause of the injury “must be (1) a cause in fact, and (2) a legally cognizable cause”); Scott v. Watson, 278 Md. 160, 173 , 359 A.2d 548, 556 (1976) (“if the situation wrongfully created by the defendant increased the risk of damage through the operation of another reasonably foreseeable force, the defendant is liable for the ensuing loss.”) (quoting Little v. Woodall, 244 Md. 620, 626 , 224 A.2d 852, 855 (1966)); Bloom v. Good Humor Ice Cream Company, 179 Md. 384, 387 , 18 A.2d 592, 593-94 (1941) (“the natural and probable consequence of the negligent act, unbroken by any intervening agency, and where the negligence of any one person is merely passive, and potential, while the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and fixes the liability.”); Marlow v. Cerino, 19 Md.App. 619, 631 , 313 A.2d 505, 512 (1974) (“proximate cause is the cause which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces a condition that is ... the condition without which the results would not have occurred.”).

See also Restatement (Second) of Torts § 435. 9 ²³² CSXT does not challenge directly the accuracy of the proximate cause instruction given; indeed, it acknowledges that the jury was instructed to “evaluate proximate causation ‘to determine what the occurrence is in this case.’ ” Focusing on what the trial court did not instruct, CSXT takes issue with the failure of the instruction explicitly to mention causation when discussing the jury’s responsibility to determine the number of occurrences or expressly to inform the jury that “claims resulting from a common cause form one occurrence.” It is to this latter complaint that CSXT devotes most of its attention. CSXT proposed that the jury be told: Injuries that result from a common cause constitute one occurrence, even if there are differences among the injuries. These differences may include, among others, variations in the timing, location and severity of the injuries. These differences do not mean that the injuries result from more than one occurrence, so long as the injuries result from a common cause.

It now contends that the court’s refusal to propound that instruction, in light of the fact that it was supported by overwhelming evidence, was prejudicial error. It argues that this omission, when coupled with an instruction, proposed by the insurers, advising the jury that the subject excess liability insurance policies did not protect against “high frequency, low severity losses,” “preordained a verdict against CSXT.” In addition, CSXT decries the court’s refusal to instruct the jury that a failure to act may be the proximate cause of an injury, 10 or that an injury may result from multiple causes. 11 ²³³ III. A. For purposes of applying their per occurrence limits, “occurrence,” as used in the policies under review, may be viewed in three ways. See generally What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer’s Liability To a Specified Amount Per Accident or Occurrence, 64 A.L.R. 4th 668 (1988).

By far the vast majority of courts that have considered the issue view it from the perspective of causation, “by referring to the cause or causes of the damage [or injury] and not to the number of injuries or claims.” Michigan Chemical Corp. v. American Home Assurance Co., 728 F.2d 374, 379 (6th Cir.1984). See Babcock & Wilcox Co. v. Arkwright-Boston Manufacturing Mutual Insurance Co., 53 F.3d 762, 767-68 (6th Cir.1995), reh’g en banc denied, cert. denied, — U.S.-, 116 S.Ct. 973 , 133 L.Ed.2d 893 (1996); Mead Reinsurance v. Granite State Insurance Co., 873 F.2d 1185, 1188 (9th Cir.1988); Business Interiors, Inc. v. Aetna Casualty & Surety Co., 751 F.2d 361, 363 (10th Cir.1984); Home Indemnity Co. v. City of Mobile, 749 F.2d 659, 662-63 (11th Cir.1984); Appalachian Insurance Co. v. Liberty Mutual Insurance Co., 676 F.2d 56, 61 (3d Cir.1982); Champion International Corp. v. Continental Casualty Co., 546 F.2d 502, 505-06 (2nd Cir.1976), cert. denied, 434 U.S. 819 , 98 S.Ct. 59 , 54 L.Ed.2d 75 (1977); Maurice Pincoffs Co. v. St. Paul Fire & Marine Insurance Co., 447 F.2d 204, 206-07 (5th Cir.1971); St. Paul-Mercury Indemnity Company v. Rutland, 225 F.2d 689, 692 (5th Cir.1955); Chemstar, Inc. v. Liberty Mutual Insurance Co., 797 F.Supp. 1541, 1546-48 (C.D.Cal.1992), aff'd, 41 F.3d 429 (9th Cir.1994), cert. denied, -U.S.-, 116 S.Ct. 1847 , 134 L.Ed.2d 948 (1996); Norfolk & Western Railway Company v. Accident & Casualty Insurance Company of Winterthur, 796 F.Supp. 929, 936-37 (W.D.Va.1992), aff'd in part, appeal dismissed in part, re ²³⁴ manded, 41 F.3d 928 (4th Cir.1994); North River Insurance Co. v. Huff, 628 F.Supp. 1129, 1133-34 (D.Kan.1985); Aetna Casualty & Surety Company of Illinois v. Medical Protective Company of Fort Wayne, 575 F.Supp. 901, 903 (N.D.Ill.1983); American Casualty Company of Reading, Pa. v. Heavy, 432 F.Supp. 995, 997 (E.D.Va.1977); Elston-Richards Storage Co. v. Indemnity Insurance Co., 194 F.Supp. 673, 681 (W.D.Mich. 1960), aff'd, 291 F.2d 627 (6th Cir.1961); United States Fire Insurance Co. v. Safeco Insurance Co., 444 So.2d 844, 846-47 (Ala.1983); Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129 , 735 P.2d 451, 457-58 (1987); Village of Camp Point v. Continental & Casualty Co., 219 Ill.App.3d 86 , 161 Ill.Dec. 717, 725 , 578 N.E.2d 1363, 1371 (1991), appeal denied, 143 Ill.2d 636 , 167 Ill.Dec. 397 , 587 N.E.2d 1012 (1992); Mason v. The Home Insurance Company of Illinois, 177 Ill.App.3d 454 , 126 Ill.Dec. 841, 843-45 , 532 N.E.2d 526, 528-30 (1988); Cole v. Celotex Corp., 588 So.2d 376, 390 (La.Ct.App.1991); Worcester Insurance Co. v. Fells Acres Day School, Inc., 408 Mass. 393 , 558 N.E.2d 958, 973 (1990); Doria v. Insurance Company of North America, 210 N.J.Super. 67 , 509 A.2d 220, 223 (App.Div.1986). A minority of courts adopt the view that it is the effect of the accident, see Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905, 915-16 (La.1973) (“[t]he word ‘occurrence’ as used in the policy must be construed from the point of view of the many persons whose property was damaged. As to each of these plaintiffs, the cumulated activities causing damage should be considered as one occurrence, though the circumstances causing damage consist of a continuous or repeated exposure to conditions resulting in damage arising out of such exposure”); Anchor Casualty Co. v. McCaleb, 178 F.2d 322, 324-25 (5th Cir.1949), or the event that triggers liability, see Arthur A. Johnson Corp. v. Indemnity Insurance Company of North America, 7 N.Y.2d 222 , 196 N.Y.S.2d 678, 682-85 , 164 N.E.2d 704, 707-08 (1959); 12 Shamblin v. Nationwide Mutual ²³⁵ Insurance Co., 175 W.Va. 337 , 332 S.E.2d 639, 643-44 (1985), that controls.

The parties are not in disagreement as to the test that controls the resolution of this case. They agree that the applicable test is the “cause” test. Application of that test also seems to be required when the terms of the subject policies are taken into account. Considered from the standpoint of the definition of “occurrence” and the “limits of liability” in all of the policies, the occurrence “results in” personal injury or property damage or such injury or damage “arises out of’ an occurrence.

See Chemstar, Inc., supra, 797 F.Supp. at 1546 . The crux of this appeal then is what the parties cannot agree on — the very issue submitted to the jury — namely, what is the cause of the NIHL claims in this case? B. This case makes clear what, in truth, is easily demonstrable, namely that, in many cases, the cause of an injury or damage is neither obvious nor easily diseernable. The parties’ position in this case, indeed, the cases upon which they rely, make this point quite clearly.

CSXT argues that “occurrence,” both by definition and as used in the various excess liability policies, “contemplate[s] multiple claims resulting at different times from one occurrence.” Thus, it relies upon and emphasizes cases applying the “cause” test, in which the event that has been determined to be the proximate cause and the resulting damage or injury do not have a direct nexus, those in which the timing and location of the various injuries are, or may be, different. E.g., Mead Reinsurance, supra, 873 F.2d at 1188 (city’s custom or policy of condoning police brutality constitutes one occurrence); Appalachian Insurance Co., supra, 676 F.2d at 61 ²³⁶ (discriminatory practices and policies resulting in a number of employee claims throughout the nation over many years constituted but one occurrence); Champion, supra, 546 F.2d at 505-06 (proximate cause of 1400 claims for defective vinyl paneling was sale of the paneling); Chemstar, Inc., supra, 797 F.Supp. at 1546-48 (failure to warn of a defect in product resulting in 28 claims for damage was one occurrence); Air Products & Chemicals, Inc. v. Hartford Accident & Indemnity Co., 707 F.Supp. 762, 771-73 (E.D.Pa.1989) (sale of welding products and asbestos-containing products constitutes an occurrence), aff 'd in part, vacated in part, remanded, 25 F.3d 177 (3d Cir.1994); Uniroyal, Inc. v. Home Insurance Co., 707 F.Supp. 1368, 1380-87 (E.D.N.Y.1988) (continuous and repeated deliveries of agent orange to the military constituted a single occurrence, resulting in 2.5 million claims for a variety of injuries); Owens-Illinois v. Aetna Casualty & Surety Co., 597 F.Supp. 1515, 1527-28 (D.D.C.1984) (same); The Atchison, Topeka and Santa Fe Railway Co. v. Stonewall Insurance Co., No. 94-CV-1464 (Kan.Dist.Ct. Sept. 18, 1995) (proximate cause of 3,670 NIHL claims was railroad company’s failure to implement a hearing conservation program), appeal docketed, No. 95-75227-A (Kan.Ct.App. Sept. 29, 1995). By way of contrast, the insurers rely on cases involving NIHL in which an argument very similar to that made by CSXT in the instant case was considered and rejected. Norfolk & Western Railroad Co., supra, 796 F.Supp. at 936-37 ; Illinois Central Railroad Company v. Certain Underwriters at Lloyd’s, C.A. No. 91-CV-90 (S.D.Ill., Jan. 21, 1993).

In the former case, the railroad contended that the single occurrence causing the claimants’ NIHL was its “negligence in failing to protect its employees from the hazards of ... noise....” 796 F.Supp. at 937 . Rejecting that theory as a matter of law, the court opined: The railroad’s argument allows the cause test to be sweep too broadly and arrives at a result which defies common sense. Many different sounds damaged the hearing of many employees in many places over the course of many years, making this case one in which multiple occurrences ²³⁷ created multiple injuries.... [A] relevant occurrence might be the generation of noise by a particular machine or by a number of machines in a particular ... plant.... The occurrence contemplated by the language of the policies cannot logically be the railroad’s system — wide negligence with respect to its employees, however.

The railroad’s argument is flawed to the extent that it removes any limit from the category of things which might be found to be a cause. [By proffering an analysis designed to] maximize coverage, the railroad has attempted to convert the cause test into a rubber stamp which would justify coverage in every case. This is a misapplication of the cause test which leads to an implausible interpretation of the occurrence language. Id. See also Babcock & Wilcox, supra, 53 F.3d at 768.

This sentiment finds expression in other cause test cases, as well. For example, in Elston-Richards Storage Co., supra, 194 F.Supp. at 677 , the court determined that the cause of the damage to each of the appliances damaged while stored in the plaintiffs warehouse was a defective carton clamp on a lift truck. Nevertheless, the court found that the damage to each appliance resulted from a separate event or occurrence. It explained: In the present case the damage to the Whirlpool appliances, though resulting from a single cause, occurred from time to time and from day to day over a period of about nine months.

The factual situation involved and the court’s holding in the Johnson case[ 13 ] would seem to support the ²³⁸ defendant’s contention in the present case that the impact upon each cartoned appliance was a separate impact and therefore that there was more than one accident, that is. more than “one event or occurrence.” Id. at 681 . Similarly, in North River Insurance Co., supra, the court recognized that loan transactions involving the same method of financing were nonetheless separate loan transactions, where they “occurred at separate times, involved different borrowers, were for different purposes, and had separate collateral.” 628 F.Supp. at 1133 . See also Worcester Insurance Co., supra, 558 N.E.2d at 973 . And, in Mason, supra, 126 Ill.Dec. at 844 , 532 N.E.2d at 529 , the court pointed out: Serving to a consumer a food item contaminated with the botulism toxin constituted the act from which liability arose.

Each instance in which a customer was presented with tainted food over the three day period created additional exposure to liability and constituted a separate occurrence under the policy. No plaintiff was subjected to either a ²³⁹ continuous or repeated exposure to conditions causing injury. These circumstances did not present one uninterrupted and continuing cause, but several distinct acts — individual sales to separate patrons over a three day period — each of which resulted in exposure to liability. In Cole, supra, 588 So.2d at 390 , one of the appellees argued that, under policy language similar to that contained in the limits of liability section of the insurance policies at issue here, a failure to provide a safe work place for the plaintiffs constituted a single occurrence.

That finding was challenged on appeal. In that case, the trial court made findings of fact that the plaintiffs had not been exposed to substantially the same general conditions. The Louisiana appellate court held that the trial court’s findings were supported by the record. Id.

It went on to quote, with approval, the decision in Ducre v. Mine Safety Appliances Co., 645 F.Supp. 708, 713 (E.D.La. 1986), aff'd, 833 F.2d 588 (5th Cir.1987): It is inaccurate to assert that all the plaintiffs were injured by a single condition — exposure to silica dust. The conditions at Avondale’s facilities giving rise to the silicosis claims were scattered and varied. The claimants were exposed to different levels of silica dust at different times, under a variety of conditions, at diverse job sites, and with different types of protection over long periods of time. Thus, it is appropriate to consider the harm visited upon each plaintiff as being a separate event, and to consider the event as occurring each year.

Cole, supra, 588 So.2d at 391 . C. It is not our task, as an appellate court, to determine what caused the NIHL claims at issue here. That is especially the case when, as here, the issue was submitted to the jury for determination and neither party has questioned the propriety of having done so. When a case has been submitted to the ²⁴⁰ jury for decision, a party unhappy with the verdict may only challenge the sufficiency of the evidence, 14 or the adequacy of the instructions.

In this case, CSXT does not argue, at least not explicitly, that there was insufficient evidence in the record to warrant submission of the appellees’ position on the issue of proximate cause to the jury. We are left, therefore, to determine the adequacy of the instructions actually given and the correctness of the trial court’s decision not to give others requested by CSXT. Maryland Rule 2-520(c) provides: The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

It is well settled that if, when read as a whole, the court’s instructions to the jury clearly set forth the applicable law, there is no reversible error. See Nizer v. Phelps, 252 Md. 185, 202-03 , 249 A.2d 112, 122 (1969); Alston v. Forsythe, 226 Md. 121, 135 , 172 A.2d 474, 481 (1961). A proposed instruction that is “ ‘a correct exposition of the law,’ ” that is “ ‘applicable in light of the evidence before the jury,’ ” and is not “ ‘fairly covered by the instructions actually given,’ ” Holman v. Kelly Catering, Inc., 334 Md. 480, 495-96 , 639 A.2d 701, 709 (1994) (quoting Wegad v. Howard Street Jewelers, 326 Md. 409, 414 , 605 A.2d 123, 126 (1992)), must be given. By not objecting “on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection[,]” Maryland Rule 2-520(e), a party waives any error that failing to give an instruction may constitute.

Id. See Barwood, Inc. v. Georgi, 253 Md. 29, 30 , 251 A.2d 596, 597 (1969). ²⁴¹ D. Before considering the instructions proposed by CSXT, which it contends the court should have given, it is necessary to review briefly those that were given. As indicated, the trial court instructed the jury that whether there has been an “occurrence,” as used in the policies, is to be determined by reference to the proximate cause of the injury or damage at issue. “Proximate cause,” the jury was informed, was “the cause which is nearest in the order of responsible causation to the resulting injuries, the cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, logically and probably produces the injury.” The court then stated CSXT’s position and that of the insurers, with regard to the “occurrence” issue. CSXT does not now, and did not then, object or complain that the trial court mischaracterized its position.

CSXT does not argue, nor could it, that the proximate cause instruction was deficient. Not only is that instruction consistent with the view