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As the world confronts more mass shootings, these tragic events leave courts continuing to confront their effects on insurance coverage. A federal appeals court in Florida recently addressed the issue of how many “occurrences” arose from the claims asserted against the Sheriff of Broward County, Florida, as a result of the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland.
Following the shooting, victims filed dozens of lawsuits against the Sheriff of Broward County, alleging negligent failure to secure the school once the shooting started. The Broward County Sheriff’s Office was insured under an excess liability policy, which provided coverage only after the Sheriff paid a $500,000 self-insured retention (“SIR”) for each “occurrence.” The liability policy at issue included the standard definition of “occurrence”—“an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The Sheriff filed a coverage action against its insurer, Evanston, seeking a declaration that the Parkland shooting constituted a single “occurrence” under the excess liability policy. In response, Evanston took the position that each gunshot that caused an injury was a separate “occurrence,” and thus, the Sheriff was required to pay dozens of SIRs before Evanston’s coverage obligation was triggered.
In Sheriff of Broward County v. Evanston Insurance Company, 159 F.4th 792 (11th Cir. 2025), the Eleventh Circuit affirmed the lower court’s ruling that because the term “occurrence” was ambiguous, it had to be construed in favor of the insured. As a result, the court held that the Parkland school shooting constituted a single “occurrence” under the Sheriff’s excess policy, triggering only one SIR. In reaching this conclusion, the Eleventh Circuit revisited the Supreme Court of Florida’s decision in Koikos v. Travelers Ins. Co., 849 So.2d 263, 264 (Fla. 2003).
In Koikos, the Florida Supreme Court interpreted the same definition of “occurrence” as applied to multiple claims for negligent security arising out of a shooting incident. The Koikos court similarly concluded that the term “occurrence” was ambiguous as applied to multiple claims resulting from gunshots fired during a single incident. In construing that ambiguity in favor of the insured, the Florida Supreme Court applied the “cause theory” to determine the number of “occurrences.” Specifically, the Koikos court determined that “occurrence” is defined by the “immediate injury-producing act” and not by the insured’s “underlying tortious omission.” Because the “immediate cause” of each injury was the “intruder’s gunshots,” the court determined that “each shooting” was a separate “occurrence.”
In the decades following the Koikos decision, courts applying Florida law (including the Eleventh Circuit) have consistently applied the “cause theory” to determine the number of “occurrences” arising from an incident giving rise to multiple injury claims. For example, in State National Ins. Co. v. Lamberti, 362 F.App’x 76 (11th Cir. 2010) the Eleventh Circuit applied the “cause theory” to find multiple occurrences, thereby triggering multiple SIRs in a case involving claims for federal civil rights violations, arrests without probable cause, use of excessive force, and unlawful detention following the insured’s pre-emptive sweep to prevent hundreds of protestors from disturbing a Free Trade Area event. Similarly, in South Central Educational Risk Management Program v. Star Ins. Co., 2018 WL 11353289 (S.D. Fla. 2018), the Southern District applied the “cause theory” to find multiple occurrences in a case involving claims for multiple acts of sexual molestation against a victim.
In Sheriff, the Eleventh Circuit seemingly clarified that the “cause theory” should only be applied to resolve an ambiguity in the term “occurrence” when doing so results in an interpretation that is favorable to the insured. The Eleventh Circuit reasoned that, at its core, the Koikos decision was premised upon the long-standing rule that when policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the language is considered ambiguous and should be construed against the insurer and in favor of coverage. Applying this same rule (known as contra preferentum), the Sheriff court resolved the ambiguity in the term “occurrence” in a manner that favored the insured in the context of the claims at issue. In the context of the Parkland shooting claims, construing the ambiguity in favor of the insured meant that the shooting incident only involved one single “occurrence,” which triggered one single SIR.
In practice, the Sheriff decision highlights how the application of the contra preferentum doctrine can result in seemingly inconsistent interpretations of the same policy language as applied to factually similar claims. In Koikos, the contra preferentum doctrine compelled the conclusion that each gunshot was a separate “occurrence,” which triggered a second per-“occurrence” policy limit and resulted in additional coverage for the insured. In Sheriff, it compelled the conclusion that the mass shooting was a single “occurrence,” thereby relieving the insured of any obligation to pay additional SIRs.
In the context of mass shootings, the standard definition of “occurrence” (which includes “continuous or repeated exposure to substantially the same general harmful conditions”) may be considered ambiguous, resulting in the application of the contra preferentum doctrine. Importantly, however, contra proferentem only applies if the policy language at issue is truly ambiguous, and only after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect. The risks inherent in applying the contra preferentum doctrine may be avoided by including clear and unambiguous language in the policy addressing how the number of “occurrences” should be determined when a single incident involves multiple injury-producing acts.
For any further questions, please contact Kyle Goss.