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Fortuity\n\nPost 4723\n\nLiability insurance requires that the loss or damage that needs defense \nor indemnity from an insurer, must be contingent or unknown at the time \nthe policy was acquired. For insurance to apply, on a third party \npolicy, the risk of loss insured against must be fortuitous. Simply \nstated fortuitous means the loss happened by chance. The doctrine of \nfortuity (accidental or unintended acts causing injury) requires it be \nestablished that the event was a chance event beyond the control of the \ninsured. [Martin/Elias Props., 544 S.W.3d at 643 & Blakeley v. \nConsol. Ins. Co. (Ky. Ct. App. 2021)]\n\nA "fortuitous event" is defined as: "[A]ny occurrence or failure to \noccur which is, or is assumed by the parties to be, to a substantial \nextent beyond the control of either party."\n\nThus, the requirement of a fortuitous loss is a necessary element of \ninsurance policies based on either an "accident" or "occurrence." The \ninsured has the initial burden of proving that the damage was the result\n of an "accident" or "occurrence" to establish coverage where it would \nnot otherwise exist [Northville Indus., 89 N.Y.2d at 634).] Once \ncoverage is established, the insurer bears the burden of proving that an\n exclusion applies. [Consolidated Edison Co. v. Allstate Ins., 774 \nN.E.2d 687, 746 N.Y.S.2d 623, 98 N.Y.2d 208 (N.Y. 2002)]\n\nInsurance is designed to protect against unknown, fortuitous risks, and \nfortuity is a requirement of all policies of insurance. [Burlington Ins.\n Co. v. Tex. Krishnas, Inc., 143 S.W.3d 226, 230 (Tex. App.-Eastland \n2004, no pet.); Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72, 75 (Tex. \nApp.-Dallas 2001, pet. denied); Two Pesos, Inc. v. Gulf Ins. Co., 901 \nS.W.2d 495, 502 (Tex.App.-Houston [14th Dist.] 1995, no writ) (op. on \nreh'g).]\n\nAn insured cannot insure against something that has already begun and \nwhich is known to have begun. [Summers v. Harris, 573 F.2d 869, 872 (5th\n Cir.1978).]\n\nThe fortuity doctrine precludes coverage for two categories of losses: \nknown losses and losses in progress. A "known loss" is one that the \ninsured knew had occurred before the insured entered into the contract \nfor insurance. [Burch v. Commonwealth County Mut. Ins. Co., 450 S.W.2d \n838, 840-41 (Tex.1970)] A "loss in progress" involves those situations \nin which the insured knows, or should know, of a loss that is ongoing at\n the time the policy is issued. [Warrantech Corp. v. Steadfast Ins. Co.,\n 210 S.W.3d 760 (Tex. App. 2006)]\n\nIn determining whether an event constitutes an accident courts must \nanalyze this issue according to the doctrine of fortuity:\n\nwhether the insured intended the event to occur; and\nwhether the event was a chance event beyond the control of the insured.\n\nPolicy language insuring against accidents applies only if the insured \ndid not intend the event or result to occur. [Blakeley v. Consol. Ins. \nCo. (Ky. Ct. App. 2021)]\n\n\nGo to the Insurance Claims Library \u2013 \nhttp://zalma.com/blog/insurance-claims-library.