Maryland Casualty Co. v. Hanson

DAVIS, Judge. Maryland Casualty Company, appellant, files this appeal from a Declaratory Judgment Order issued by the Circuit Court for Baltimore City (Matricianni, J., presiding). The court found that appellant was liable for insurance coverage under six separate policies for injuries that children of a tenant suffered as a result of lead-based paint poisoning at a property that appellant insured for a property management ⁴⁸⁷ company and the tenant’s former landlord. Appellant presents three issues for our review: 1.

Did the trial court err in its May 3, 2005 Declaratory Judgment Order in concluding that continuing exposure to lead-paint at the same property over multiple Policy years constituted multiple occurrences despite Policy language that “[ajll bodily injury ... resulting from ... continuous or repeated exposure to substantially the same general conditions shall be considered to be the result of one occurrence”? 2. Did the trial court err in its May 3, 2005 Declaratory Judgment Order in holding that the limitation of liability language in the Policy provisions was ineffective to preclude “stacking” of occurrence limits in Policies covering successive years and triggered by a “continuing injury”? 3. Did the trial court err in its May 3, 2005 Declaratory Judgment Order in holding that coverage for later years were [sie] triggered by injuries that had already manifested and been diagnosed prior to the inception of such coverage? We answer all three questions in the negative.

We shall affirm the decision of the circuit court, but nevertheless, remand for entry of a declaratory judgment in accordance with the Maryland Rules. FACTUAL AND PROCEDURAL BACKGROUND Appellant’s appeal of its declaratory judgment action before the circuit court is part of an underlying personal injury tort claim. Antonio Jones and Erieka Jones 1 (Jones children), by their mother, Carrie Holmes, and Holmes individually, sued Mid-Atlantic Funding Company, Darius Funding, Inc., and Phillip Hanson. Hanson was an insured of appellant.

The Jones children allege they suffered lead-induced injuries as a result of their exposure to lead-based paint while tenants at real property owned by Hanson and located at 1229 North ⁴⁸⁸ Central Avenue in Baltimore City (the Property). Holmes and the Jones children resided at the Property from May of 1984 through 1990, and the children were diagnosed with the following elevated blood-lead levels measured in micrograms (ixg) per deciliter (dL) of blood. 2 Antonio Jones Date Blood-Lead Level October 17,1986 37 ixg/dL December 10, 1986 33 n,g/dL December 30, 1986 34 ixg/dL January 20,1987 34 ixg/dL April 2,1987 38 ixg/dL March 11,1988 32 ixg/dL August 8,1988 62/59 ixg/dL October 5,1988 39/41 ug/dL March 6,1989 33 ixg/dL Ericka Jones Date Blood-Lead Level October 17.1986 25 ug/dL December 10, 1986 19 ue/dL December 30, 1986 21 ug/dL January 20,1987 22 na/dL April 8,1987 28 uug/dL November 16. 1987 32 u-g/dL January 27,1988 26 ixg/dL ⁴⁸⁹ March 11,1988_29 u,g/dL July 28.1988_40/44 ng/dL August 8.1988_40/44 uig/dL January 5.1989_27 ixg/dL February 1,1989_25/20/22 ug/dL Appellant issued separate liability insurance policies, three each to Hanson and Consumer Management Corporation (CMC), the property management company for the Property, during the Jones children’s tenancy that covered 1985-1990. CMC’s insurance policies were in effect during the following periods: • October 1,1985 to October 1,1986 • October 1,1986 to October 1,1987 • October 1,1987 to October 1,1988 Hanson’s policies covered: • March 2,1987 to March 2,1988 • March 2,1988 to March 2,1989 • March 2,1989 to March 2,1990 The coverage dates for the second and third CMC policies and the first and second Hanson policies overlapped from March 2, 1987 to October 1, 1988. Each of the six policies contained a policy limit of recovery totaling $500,000.

The primary controversy devolves upon how the policies should be construed and accordingly, the amount of coverage, if any, of the policies. On August 18, 2004, appellant filed a Complaint against appellees Hanson, Holmes and the Jones children seeking declaratory relief and interpretation of the policies. Appellant argued that coverage for the alleged injuries suffered by the Jones children should be denied because they were seeking damages in their tort lawsuit in excess of the $500,000 limit of the Hanson policies. Appellant also contended, in the alternative, that coverage under the second and third Hanson policies should be denied because the injuries alleged by the Jones children occurred prior to the inception of those policies.

Additionally, Hanson’s knowledge of the injuries constituted a known loss which, appellant averred, precluded coverage. ⁴⁹⁰ On March 2, 2005, appellant moved for summary judgment, reiterating its argument from its Complaint. Appellant also claimed that it was entitled to a declaration that coverage was only available under one of the three CMC policies because Holmes and the Jones children allege one occurrence of the lead-based injury, the policies limit coverage per occurrence, and the “bodily injuries alleged ... manifested and were a known loss prior to the inception of the [third CMC policy].” Appellees countered that there were several facts in dispute and that the court should deny appellant’s motion. On March 30, 2005, the court conducted a hearing (Pierson, J., presiding), and denied appellant’s motion. The court then conducted a bench trial on April 28, 2005.

The parties stipulated to the blood-lead levels listed above, appellant’s issuance of the subject policies and the “relevant terms” contained therein to Hanson and CMC, and the declaration pages listing $500,000 as the policy limit. The parties also agreed that Peter and Julia Ben Ezras 3 “were listed as additional insureds on one or more of the policies issued by [appellant to CMC],” and that if Hanson were called to testify at trial, he “would testify that he did not receive notice of the alleged exposure to lead paint of [the Jones children] on the premises, of [the Property] until he was served with the Complaint in the underlying [tort] action in 1995.” Appellant presented the following arguments at trial: ... There are two policy lines here. One is a series of three policies that were issued to [CMC].

And the first policy was issued 10-1-85 to '86. There was the second [CMC] policy which was 10-1-86 to '87, and then 10-1-87 to '88. So there’s three [CMC] policies. They’re the earlier in ⁴⁹¹ time.

All of them would ensure liability arising from conditions on the premises of 1229 Central Avenue. The second line of policies which I’ll call the Hanson line of policies, they incept later. 3-2-87 is the date of issuance of the first Hanson policy and that runs 3-2-87 to '88 and the middle policy, 3-2-88 to '89, and then a third Hanson policy, 3-2-89 to '90.... Your Honor, it is necessary to juxtapose the lead test which are also part of these stipulations with the policy periods. And significantly the first lead test does not occur and there is no lead reading for either of [the Jones children] before 10-17-86.

That is after the first [CMC] policy expired. So our position is that there is no coverage under the [first CMC] policy. There is no evidence at all in this case that there was injury during that policy period or that there was any occurrence that could trigger that policy. THE COURT: You’re talking about if we say there are three policies to [CMC], you’re talking about just the first of those or all three of them? [Appellant’s counsel]: I’m talking about—I’m focusing now just on the first [CMC] policy, the— THE COURT: The one that ran from '85 to '86. [Appellant’s counsel]: That’s correct.

Because there’s no evidence of any elevated lead level of injury in that policy period, and this is in the current (inaudible) policy. Your Honor, the lead levels which are shown on th [sic] the graphs then span from October 17 of '86 and in the case of Erica [sic] [Jones], the last reading is in February of '89. In the case of Antonio [Jones], the last reading is in March th [sic] actually March 6 of '89. With respect to the Hanson policies, Your Honor, both of [the Jones children] were diagnosed with lead injury before the first Hanson policy was issued.

They were diagnosed and had a number nd [sic] of lead readings prior to March 2 of 1987. So with respect to the Hanson policies, it is [appellant’s] position that there is no coverage available because at the time the first Hanson policy ⁴⁹² issued, there was no fortuitous event that could occur, rather the injury had been-the lead paint elevated lead levels had been diagnosed. And Your Honor, this is not a matter of manifestation trigger, and I’m steering away from the use of manifestation because this is a different issue. This is known loss and fortuity.

And in this case, we have the [Jones children] in a brief to the Court of Appeals saying that [CMC] knew of the presence of lead and the fact that children had been exposed to lead and injured by lead in 1986 and prevailing on that argument in the Court of Appeals. And now they’re going to stand up and alleging it in their complaint and attempting to prove it all throughout the 10 years or so of this case. And now they’re going to stand before you and tell you that there was no known loss here. Your Honor, we don’t believe that a party should be allowed to blow hot and cold as it benefits them in litigation.

And we do not-we believe that [Holmes and the Jones children], are estopped from arguing against the proposition that they state in their brief in the Court of Appeals that Ms. Holmes testified to under oath in her deposition that’s alleged in their complaint. And that is that [CMC] knew of the lead injury in 1986, that it was the agent for [Hanson], and that his knowledge is imputed to [Hanson] [sic]. This is an argument being made against [Holmes and the Jones children], and we believe that under the Kramer v. Globe Drilling case and the eases that follow it, [Holmes and the Jones children] are judicially estopped making it contrary to this case. THE COURT: What’s the consequences of that with respect to this [sic] last two policies of [CMC]? [Appellant’s counsel]: ...

With respect to the last two policies of [CMC], it is [appellant’s] position that the limit of liability provision in those policies limit the availability of coverage to one per occurrence limit which is $500,000. ⁴⁹³ And alternatively with respect to the Hanson policies, it is [appellant’s] position that if this Court finds that there is coverage available at all under the Hanson policies, notwithstanding the fact that this was a fully manifested and diagnosed injury prior to the first policy being issued, that limit of liability provision in the Hanson policy similarly limits the availability of coverage under those policies to one $500,000 per occurrence limit. And for the Court’s purposes, the pertinent language in the [CMC] policy which is found in the coverage part that Your Honor has says, “For the purpose of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuance [sic] or repeated exposure to substantially the same general condition shall be considered as arising out of one occurrence.” Your Honor, that language is particularly applicable to a situation here where the allegations are that these children were injured by continued or repeated exposure to one condition, and that’s the presence of lead—chipping and peeling lead paint at [the Property]. All of the allegations in the complaint and all the claims in the case arise from one condition. And it is the position of [appellant] that the anti-stacking provision, the limit of liability language in their policies deem that—all of their injuries combined to one occurrence, subject to one per occurrence limit per policy line.

Now Your Honor, that outcome is absolutely consistent with the Court of Appeals opinion in the CSX Transportation v. Continental case at which time the Court of Appeals, Judge Bell, held that in order to determine the number of occurrences under Maryland law in the vast majority of courts that have considered that issue, one looks to the cause of the injury. And this is not—the holding in CSX is absolutely consistent with the limits of liability provision, but it is Maryland common law. And under the Court of Appeals binding decision in CSX, it was held that in that case, it was a noise induced hearing loss case. And in that case, the Court held that the ⁴⁹⁴ sources of noise determined the number of occurrences, so it would be the source of the injury, the cause of the injury.

And the CSX case is very clear about that. This case made one cause of the injury, chipping and peeling paint, so even if the policies didn’t include the anti-stacking provision, we have one cause of injury, one occurrence, and it’s the chipping and peeling paint at [the Property]. So Your Honor, we say under CSX, there was only one occurrence here. Under each policy line, we say that the limit of liability provisions in each policy also preclude there being more than one occurrence limit available.

We say that there is no coverage available under the Hanson policies for injuries that were diagnosed and manifested prior to any of those policies being issued, and alternatively under the Hanson policies at most there would be only one per occurrence limit available. And Your Honor, we also say that under the Riley case, under Bausch & Lombe [sic], under Hartford [sic] Mutual, [Hanson, Holmes and the Jones children] had the burden of proving injury in a policy period and could only do that through expert testimony which was not presented in this case, and therefore they’ve not proven injury in any policy period. Thank you, Your Honor. Counsel for Holmes and the Jones children responded: First I want to talk to you about the last thing [counsel for appellant] talked about which is the so-called burden of proof issue.

Your Honor, the case law is (inaudible) that who has the burden of proof depends on the state of the pleadings and fundamental fairness. And Your Honor, in this case, [appellant] came into court and told the Court that the issue of whether the complaint of injuries occurred under any of the covered policy periods has not been raised. And it is [appellant’s] position, not to them, that this factual issue would be resolved in the underlying tort case and is therefore improper to address herein. Talk about going hot and cold, now we’re coming into court and saying, oh, I didn’t mean what I said. [Holmes and the Jones children] do have ⁴⁹⁵ the burden of proof.

They do have to prove injury during the policy periods in this case. Well, they can’t have it both ways, Your Honor. [Holmes and the Jones children] do not have the burden of proof in this case, [appellant] has the burden of proof in this case. They’re coming to court and saying Your Honor, we want a declaration that we don’t have to provide coverage. Why don’t we have to provide coverage?

Because there hasn’t been an occurrence during each policy period. Why hasn’t there been a [sic] occurrence during each policy period? Because they can’t prove injury. Well, they have to come into court and prove those things.... [appellant] can’t have it both ways.

They can’t say it hasn’t been raised. It’s a matter for the tort case. And they come in on the day of trial and say, yes, you got to prove it. So that’s the procedural issue that I think the Court needs to consider.

Now Your Honor, the Riley case looked at this exact policy language virtually. And what [appellant] failed to acknowledge I guess is that this—each of these policies cover bodily injury during the policy period. That’s the [CMC] language. The Hanson policy talked about the endorsement period, but it’s the same thing.

If there is bodily injury during a policy period, then the coverage is triggered. It’s our allegation that there has been a bodily injury during each policy period. And therefore, all six of these policies are triggered. ... The first argument [counsel for appellant] talked about is the fortuity, or the known loss argument, which I believe applies to the Hanson policies, [counsel] argues, in that the argument is, well, because these children had been poisoned by lead prior to the time that the Hanson policies had been incepted, it’s not a known loss and therefore there can be no coverage under those policies.

The problem is, Your Honor, is that that argument ignores the language of the policies themselves which says that if there is a bodily injury during a policy period, there has been an occurrence. And it’s our proffer to the Court, ⁴⁹⁶ a, that they did not meet their burden and prove there wasn’t a bodily injury during each of these policy periods, or in the alternative, that there will be proof that there was bodily injury during each of these policy periods in the underlying tort case. But again, Your Honor, we assert that the declaration is to be made today because [appellant] as the moving party [has] not met [its] burden of proof as to lack of bodily injury during a policy period. But regardless, it’s irrelevant whether there was a poisoning prior to the time the Hanson policy incepted.

Because think about it this way, Your Honor. Suppose, as pretty much occurred in this case, that a new landlord bought the property mid-stream during a tenant’s tenancy. And the tenant had levels prior to the time the tenancy begins and continued to have elevated levels after the new ownership took place. And that new owner had an insurance policy.

Do you think that the insurance company could come into court and say, well, these kids had lead levels before? We don’t care if you were negligent and allowed chipping and peeling paint to remain in the property and allowed them to continue to be exposed to lead. They already had lead poisoning before you took possession of the property, and before you bought our policy, so therefore we’re not going to provide coverage. That makes no sense, and that’s pretty much an argument that Riley—you’ll see when you read the case—addresses.

Riley talks about a situation a little bit different when there’s four consecutive policy years but four different insurance companies that provide the coverage. And they said pretty much the same argument, that there would be coverage under those situations, even if it was four separate carriers. And that’s what we have here. We have a landlord who took possession of the property.

He had an insurance company. The kids were still being exposed to lead. It doesn’t matter, Your Honor. There’s still an occurrence.

There’s still bodily injury during the policy period. ⁴⁹⁷ I’ve argued this same case with [counsel for appellant]. I think this is the third time now. She does a great job of trying to take one argument and segregate it into four separate arguments, but really it’s the same. Was there a bodily injury during the policy period?

If there is a bodily injury during the policy period, then the policies are triggered. Known loss is irrelevant. Otherwise the Riley case would not mean anything because they said across successive policies they stacked. And therefore, if policies stacked, they stack. [Hanson’s] knowledge of what the injury [was to the Jones children] is irrelevant to this analysis.

So [counsel for appellant’s] argument concerning judicial estoppel I’ll address and say I don’t believe we are es-topped. These are mere allegations. Pleadings can be made in the alternative. And number one, it’s not—it’s the testimony of [Hanson and CMC] who are saying they didn’t have knowledge.

It’s not Ms. Holmes saying I am now changing my mind and saying I did not notify them. It’s the testimony that was introduced in the deposition of Mr. Caplan [of CMC], and the stipulation of Mr. Hanson, and then the subsequent stipulation again of Mr. Caplan to say I didn’t have notice. It’s not us taking a different position at all. It’s [Hanson and CMC] taking the same position they’ve taken all along.

That’s evidence in this case, and [Holmes and the Jones children], have a right to rely on that. So that addresses the known loss. I don’t think it’s irrelevant. If Your Honor does find it’s relevant, I don’t believe we’re barred by judicial estoppel from asserting that [Hanson and CMC] argued that there was no notice.

Your Honor, with regard to the CSX case, Your Honor, the CSX case was a case where a railroad, CSX, had a policy—they were self-insured. But they had a retention limit where they would pay the first part, and then the carrier would come in and pay anything over a certain dollar amount of claim for each claim that was made. And what occurred was there was a huge, huge number of hearing loss ⁴⁹⁸ claims from railroad workers being injured in the yard. The railroad wanting all those claims to be one occurrence said this is one occurrence.

Therefore, we only have to pay our self-retention limit once, and then you, insurance company, have to pay the remainder of all these claims. On the other hand, the carrier argued that each individual worker’s hearing loss claim was a separate claim, and that the self-insured retention limit as to each individual claim would have to be paid by the railroad before the insurance would kick in. And indeed the Court of Appeals, Judge Bell, did say that in those circumstances, the cause test did apply. However, Your Honor, the case is distinguishable because that did not deal with coverage across successive policy periods, okay?

That each individual railroad worker, yes, indeed was a different claim. That’s all the case held. Utica Mutual case, Your Honor, the Harford County case, Your Honor, the Riley case, Your Honor, are all individual—I’m sorry—are all environmental exposure cases where it would specifically [sic] that environmental injury, and now the Riley case, lead paint injury across successive policy periods, the policies stack. CSX was not a stacking case, Your Honor.

It simply wasn’t. With regard finally, Your Honor, to the limits of liability provision. On that, Your Honor, I believe the Riley case is indeed on all force [sic]. Bodily injury during a policy period shall be one occurrence.

And if there’s a bodily injury during a subsequent policy period, that’s one occurrence. And if there’s another policy period and a bodily injury during that policy period, that’s an occurrence. These are occurrence policies. When you read my memorandum that was attached to my motion for summary judgment, Your Honor, it outlines pretty well the history of trigger law, for lack of a better way to put it, in insurance cases in this state.

The cases that said that manifestation is the sole trigger are no longer good law. And I outline all those cases.... Riley specifically said that in this exact circumstance, the ⁴⁹⁹ policies stacked. For all those reasons, Your Honor, I request that you issue a declaration that there is coverage under all six of these policies, and that [appellant] must indemnify [Hanson and CMC] in the tort case equivalent.

Thank you. Counsel for Hanson maintained that ... the only evidence before Your Honor is that the insured, the person that contracted with the insurance company, did not have knowledge of the situation and therefore it was not a known loss. With regard to the Hanson policies, if you note the times of exposure with regard to Antonio Jones and Erica [sic] Jones, Antonio Jones has actual lead levels in each of the three policy periods for Hanson. With Erica [sic] Jones, there are lead levels in two, the first two, of the Hanson policy periods, two different policies.

With regard to the third, again I believe that that issue still has to be determined by expert testimony and may in fact be provided at the underlying tort litigation. But we have all three policies in play with regard to Antonio Jones and two of the three just using the lead levels with regard to Erica [sic] Jones. From the insured’s point of view with regard to the so-called stacking issue, Riley----If indeed Mr. Hanson had gone to three separate insurance companies during these three years of policy coverage, would it be that he had only one limit of liability? If indeed he stayed with the same company, should he be prevented from having the policy limits for each of those three policies?

The language in those policies would have to be pretty stringent to prevent him from receiving the same coverage if he had gone to three different insurance companies. And with regard to this policy, I don’t believe that language is there to give the insurer the notification that if indeed he wants coverage in those policy limits for each of those claims during each of those policy years, he has to go to three separate insurance companies. The language just ⁵⁰⁰ isn’t strong enough to state that is what he would have to do to get the coverage that he thought he had. It would just be blatantly unfair for an insured if indeed he had coverage for 20 years if he stayed with the same company, due to loyalty or price or whatever, that he would have one policy limit for the entire 20-year period....

On May 3, 2005, in its Declaratory Judgment Order, the court ruled: Pursuant to Md.Code Ann., Cts. and Jud. Proc. § 3-406 this Court has jurisdiction to construe written contracts and to declare the rights and obligations of the parties under the contracts. See Chantel Assocs. v. Mt. Vernon Fire Ins.

Co., 338 Md. 131,142 , 656 A.2d 779 (1995). While [appellant], has not asked this Court to consider its duty to defend the underlying tort action, styled as Antonio Jones, et al. v. Mid-Atlantic Funding Company, et al., Case No. 94125016/CL 180144, it does seek to have this Court declare that there is no available coverage under its applicable policies for damages alleged therein. [Appellant] insurer insists that it is entitled to judgment in its favor because [Appellees], Phillip Hanson, et al., have failed to prove that any actual injuries occurred during any of the operative policy periods under six separate insurance policies related to the premises in question in the tort action. Although this Court has limited authority to determine independent and separate questions of policy coverage prior to the tort trial, the issue of whether the present claims fall within the potential coverage of any of these policies depends on a factual issue that must be resolved in the underlying tort suit. 7416 Baltimore Ave. v. Penn-America, 83 Md.App. 692, 697-701 , 577 A.2d 398 , cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). In the present action, the Court finds that the parties have presented a justiciable controversy concerning [appellant’s] duties and obligations under each of the six policies in question, which involves issues independent and separable from the claims of [Holmes and the Jones children].

See ⁵⁰¹ Howard v. Montgomery Mutual Ins. Co., 145 Md.App. 549, 560 , 805 A.2d 1167 [,] cert. denied, 372 Md. 431 , 813 A.2d 258 (2002). The issues to be resolved here involve the number of “occurrences” at issue where [the Jones children] claim, continuous or repeated exposure to lead paint over the course of several policy periods; whether the Limit of Liability provisions in the policies preclude stacking of policies issued to a single insured; and whether coverage is available under any policy issued after the claimed injuries were diagnosed. Based on the record before the Court and its review of the relevant authorities, the Court is persuaded that exposure to lead paint plus proof of bodily injury constitutes an “occurrence” under each of the insurance policies in question, which would give rise to coverage.

Moreover, the Court believes that the Limit of Liability provisions in the policies do not preclude stacking each of their liability caps upon proof of continuing exposure and bodily injury during sequential policy periods. Finally, the Court holds that [Hanson and CMC’s] “known loss” is not determinative of liability coverage for policy periods after [the Jones children’s] initial blood-lead level diagnosis in October, 1986. Again, the Court declares that the test for coverage under any one of the six insurance policies here is exposure to lead paint plus proven bodily injury during the relevant policy period. Cf.

Riley v. United Services Automotive Assoc., [ 161 Md.App. 573 , 871 A.2d 599 ,] 2005 WL 742896 (Md.App.[2005]) and cases cited therein. Accordingly, the court declares that the Limit of Liability provisions in the three Hanson insurance policies and in the three [CMC] policies limit coverage to one occurrence for bodily injury resulting from continuous or repeated exposure to lead paint for each of the six relevant policy periods. The court further declares that these provisions do not preclude stacking of the liability caps if [the Jones children] can prove continuing exposure and bodily harm during more than one policy period. Finally, the Court declares that ⁵⁰² “known loss” is not determinative of the availability of coverage for any of the applicable insurance policy periods.

Therefore, [Hanson, CMC, Holmes and the Jones children’s] access to insurance coverage under any one of the six policies in question here will, of necessity, be determined in the underlying tort action. (Footnote omitted.) Appellant’s timely Notice of Appeal to this Court followed. STANDARD OF REVIEW When an action has been tried without a jury, the appellate court reviews the case on both the law and the evidence. Md. Rule 8-131(c)(2006).

We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Id. As Judge Thieme, writing for the Court, explained, “[t]he trial court is thus the gatekeeper for receiving and weighing the evidence. In contrast, we are bound by the trial court’s evidentiary findings, and we will not disturb those findings on appeal if they have support in any competent material evidence, even if we would have reached a different conclusion regarding that evidence.” Brown & Sturm, et al. v. Frederick Road Ltd. P’ship, et al., 137 Md.App. 150, 170 , 768 A.2d 62 (2001) (citation omitted). DISCUSSION Appellant argues that the circuit court erred by concluding that the Jones children’s exposure to lead at the Property over several years constituted multiple occurrences over the applicable insurance policies.

Appellant specifically posits that the policy language, reviewed in conjunction with case law, should have led the court to conclude that the Jones’ exposure amounted to a single occurrence, and that the policy language precluded the ‘stacking’ of the occurrence insurance limits. Additionally, appellant contends that the court erred in finding that insurance coverage is available despite the lead-induced injuries being diagnosed and known to Hanson, as landlord, and CMC, as property manager, prior to the inception of ⁵⁰³ coverage. We shall affirm the judgment of the circuit court, but remand the case for the purpose of issuance of a separate order. I In order for courts to interpret and determine coverage under insurance policies, the primary principle of construction is to apply the terms of the insurance contract itself.

In doing so, we ascertain the parties’ intentions from the policy as a whole. In construing the terms of the insurance contract, unless there is an indication that the parties intended to use words in the policy in a technical sense, we accord the words their usual, ordinary, and accepted meaning. Bausch & Lomb, Inc. v. Utica Mut. Ins.

Co., 355 Md. 566, 581 , 735 A.2d 1081 (1999) (citations and internal quotation marks omitted). Ambiguity arises if, “to a reasonably prudent layman, the language used is susceptible of more than one meaning.” CSX Transp., Inc. v. Cont'l Ins. Co., 343 Md. 216, 249 , 680 A.2d 1082 (1996) (citation omitted). The matter of determining whether an “insurance policy is ambiguous is a threshold matter which is to be decided by the court as a matter of law.” Id.

(citation omitted). Generally, insurance policies based on occurrences, like the policies at issue here, as opposed to claims or discovery 4 insurance policies cover liability inducing events occurring during the policy term, irrespective of when an actual claim is presented. As to the use of “occurrence” policies, we further observed in [Mutual Fire, Marine & Inland Ins. Co. v.] Vollmer, 306 Md. [243] at 255, 508 A.2d 130 , [(1986)] that in the area of environmental contamination it is nearly impossible to identify the time of the tortious “occurrence” and the effect of ⁵⁰⁴ long-term exposure upon the character of the injury, citing Stine v. Continental Casualty Co., 419 Mich. 89 , 349 N.W.2d 127 (1984).

Similarly, in Zuckerman v. National Union Fire Insurance Co., 100 N.J. 304, 312 , 495 A.2d 395, 399 (1985), which we referred to in Vollmer, the court observed that in the use of “occurrence” policies for perils that can cause latent damage, as in environmental litigation, there is a difficulty in determining precisely when the essential causal event occurred. Harford County v. Harford Mut. Ins. Co., 327 Md. 418, 435 , 610 A.2d 286 (1992) (citation and footnote omitted).

II a. Occurrence and Trigger The crux of appellant’s argument is that, in consideration of the policy language and lead-induced injuries, if the Jones children are entitled to coverage, they should only receive insurance coverage for a single occurrence of exposure to lead, and not several occurrences over multiple years, thereby triggering coverage under the successive policies and cap limits. Looking to the pertinent language of the policies, each of the CMC policies contain the following definitions: Limits of Liability Regardless of the number of (1) insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, or (3) claims made or suits brought on account of bodily injury or property damage, the company’s liability is limited as follows ... For the purpose of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.

Bodily Injury Bodily injury means bodily injury, sickness or disease sustained by any person which occurs during the policy period.... ⁵⁰⁵ Occurrence Occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Appellant’s policies issued to Hanson each included the following language: Limit of Liability Regardless of the number of insureds, claims made or persons insured, our total liability under Coverage L [for Premises Liability] stated in this endorsement for all damages resulting from any one occurrence shall not exceed the limit of liability for Coverage L stated in the Declarations [of $500,000]. All bodily injury and property damage resulting from any one accident or from continuous or repeated exposure to substantially the same general conditions shall be considered to be the result of one occurrence. Bodily Injury “bodily injury” means bodily harm, sickness or disease, including required care, loss of services and death resulting therefrom.

Insured Location “insured location” means the one to four family dwelling, other structures and grounds shown as the residence premises in the Declarations. Endorsement Period This endorsement applies only to bodily injury or property damage which occurs during the period this endorsement is in effect. With respect to occurrences, appellant maintains that courts in Maryland, specifically the Court of Appeals in CSX, supra, and decisions in other jurisdictions “are near-uniform in construing policy provisions like those at issue here to limit coverage to amounts available for a single occurrence.” We disagree. ⁵⁰⁶ Preliminarily, we address the critical principle of trigger within the context of insurance coverage. 5 Chief Judge Joseph Murphy, writing for this Court, reiterated: “Trigger is a legal rule designed to determine when a policy must respond.” James M. Fischer, Insurance Coverage for Mass Exposure Tort Claims: the Debate over the Appropriate Trigger Rule, 45 Drake L.Rev. 625, 652 (1997). The policies do not refer to a “trigger”; “the term ‘trigger’ is merely a label for the event or events that under the terms of the insurance policy determines whether a policy must respond to a claim in a given set of circumstances.” Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 447-48 , 650 A.2d 974, 979 (1994) (citing Robert D. Fram, End Game: Trigger of Coverage in the Third Decade of CGL Latent Injury Litigation, in 10th Annual Insurance, Excess, and Reinsurance Coverage Disputes 9 (PLI Litig. & Admin.

Practice Course Handbook Series No. 454, [454 PLI/Lit 9] 1993)(“Fram”)). Although the CGL policy is essentially a standard form, divergent theories have been applied to the trigger of coverage. In Owens-Illinois, the New Jersey Supreme Court reviewed a number of theories for the trigger of policy coverage, stating: The most frequently offered theories for the trigger of coverage are (1) the exposure theory, (2) the manifestation theory, and (3) the continuous-trigger theory ... [and] [a]t least two other less-frequently followed theories exist. One is the “injury-in-fact” (or “damages-in-fact”) approach, which holds that coverage is triggered by a showing of actual injury or damage-producing event____ Under that theory, coverage is triggered by “a real but ⁵⁰⁷ undiscovered injury, proved in retrospect to have existed at the relevant time * * * irrespective of the time the injury became manifest.” ... [Ajfter an injury ... it may be inferred ... that the harm actually began sometime earlier ... [and fjinally, the “double-trigger” theory holds that injury occurs at the time of exposure and the time of manifestation, but not necessarily during the intervening period.

Id., Id., 138 N.J. at 449-51 , 650 A.2d at 980-81 (citations, footnotes and internal quotations omitted). Mayor and City Council of Baltimore v. Utica Mut. Ins. Co., 145 Md.App. 256, 297-98 , 802 A.2d 1070 (2002).

As trigger theories have developed, so too has the case law pertaining to trigger and activation of insurance coverage for the insured due to the occurrence of an event or series of events, if there is demonstrable proof of a triggering event and an injury. In the case of Harford Mut. Ins. Co. v. Jacobson, 73 Md.App. 670 , 536 A.2d 120 (1988), we reviewed a lead-induced injury case in which a tenant filed a personal injury suit against the estate of Israel Shapiro, which listed the rental property at issue as an estate asset.

In Jacobson , evidence showed that the child tenant’s injuries and diagnosis of lead poisoning took place prior to the inception of insurance coverage by appellant insurance company. Id. at 674 , 536 A.2d 120 . We were persuaded by cases that utilized the following test: “The date of an “occurrence” for purposes of determining coverage under an insurance policy is the date when the harm is first discovered.” Id. at 684 , 536 A.2d 120 . As a result, we adopted the manifestation of injury trigger as a standard for lead paint cases and held the insurer was not liable to indemnify its former insured.

Id. See also Mraz v. Canadian Universal Ins. Co., Ltd., 804 F.2d 1325, 1328 (4th Cir.1986) (holding “that in hazardous waste burial cases ... the occurrence is judged by the time at which the leakage and damage are first discovered.”) The Court of Appeals began to chip away and depart from the Jacobson holding with its decision in Lloyd E. Mitchell, Inc. v. Maryland Cas. Co., 324 Md. 44 , 595 A.2d 469 (1991), ⁵⁰⁸ which was a case that involved injuries due to exposure to products containing asbestos. “Relying primarily on” the holdings in Jacobson and Mraz, the trial court found that the insurance company was not required to indemnify its former insured, a manufacturer of asbestos-containing materials, as a matter of law, where the alleged injuries did not manifest until after the general liability policies lapsed.

Id. at 50, 595 A.2d 469 . The Court vacated the trial court’s entry of declaratory summary judgment for appellee insurer and held that the court erred in “adopting, as the sole trigger of coverage, the manifestation theory of coverage, namely, that coverage is not afforded until harm