In the News

Micah Skidmore in Texas Lawbook: TX Supreme Court Hears BP, Transocean $500 million Dispute

BP and Transocean take their bitter, protracted half-billion-dollar battle over who pays for pollution-related liabilities arising from the 2010 Deepwater Horizon disaster to the Texas Supreme Court this week. >>



Recent Publications

Sixth Circuit Clarifies Scope of Medicare Secondary Payer Liability for Non-Group Health Plans

On July 16, 2014, the Sixth Circuit Court of Appeals confirmed that a “health care provider can bring the Medicare Secondary Payer Act’s (“MSP’s”) private cause of action against a non-group health plan that denies coverage for a reason besides Medicare eligibility.”  >>

Turning Lemons into Lemonade: Insurance Coverage Lessons Learned from Heartland Payment Systems

This past June marks nine years since the data breach at CardSystems Solutions, which involved the disclosure of names, account numbers and verification codes for some 40 million cardholders. >>

Fifth Circuit Holds Any Claim that Exhausts Underlying Insurance Can Trigger Excess Insurance

In a win for policyholders relying on multiple coverage layers, the Fifth Circuit held on June 23, 2014 that an excess liability insurance policy could be triggered by exhaustion of a “retained limit” - equal to the limits of underlying insurance - even if the amounts paid to meet the “retained limit” were not covered by the excess policy. >>

Preserving Insurance Coverage for Contractual Liability

Texas operators and service companies need to carefully consider how a recent trend in Texas law affects the availability of insurance coverage - for themselves and their counterparties - for contractual liability. >>

A Desk Guide to Data Protection and Breach Response - Part 8

In this final installment of our series, A Desk Guide to Data Protection and Breach Response, we outline four key considerations that every company should be aware of in pursuing coverage for claims and losses arising out of a cyber/privacy breach. >>



Micah E. Skidmore

Partner

Dallas


2323 Victory Avenue
Suite 700
Dallas, Texas 75219
T +1 214.651.5654
F +1 214.200.0659

Areas of Practice

Education

  • J.D., Brigham Young University, 2004, magna cum laude; Order of the Coif
  • B.S., Economics, Brigham Young University, 2001

Bar Admissions

  • Texas, 2004
Micah E. Skidmore

Micah Skidmore represents policyholders in significant insurance coverage disputes involving a variety of claims from commercial general liability, directors and officers liability, employment practices liability, and errors and omissions liability to first-party property claims, trade credit, and crime and fidelity claims. In addition to representing clients in general business litigation matters, Micah also regularly advises clients on the insurance implications of corporate transactions, including mergers and acquisitions; consults with brokers and policyholders in negotiations involving underwriting of directors and officers liability insurance policies and other sophisticated insurance products, including trade credit insurance; and counsels plaintiffs and policyholders in complex litigation on how to maximize insurance recovery for defense costs, settlements and judgments.

Micah is a contributor to The Dec Sheet, the firm's insurance law blog.

Professional Recognition and Community Involvement

  • Recognized in The Best Lawyers in America® 2013-2015 for Insurance Law.
  • Recognized in Insurance by Chambers USA (2010-2014)
    • Designated as "Up and Coming" in Insurance (2014)
  • Designated as a “Rising Star” by Texas Lawyer (2009, 2011)
  • Risk Management Society (2012)
  • Dallas Association of Insurance Professionals (2012)
  • Tort and Insurance Practice Section, Dallas Bar Association
    • Vice-Chair, Programs (2012)
    • Treasurer (2011)
    • Board Member (2009-2010)
  • Insurance Law Council, Texas State Bar (2010-Current)
  • Patrick E. Higginbotham Inn of Court (2011-2012)

Selected Representations

  • Represented a multi-national petroleum company in the recovery of tens of millions of dollars of defense costs incurred in underlying securities litigation.
  • Withstood summary judgment on statutory bad faith claims and obtained settlement for the owner of a multifamily housing development in Houston for roof damage caused by Hurricane Ike.
  • Obtained multiple summary judgment rulings for a national multifamily housing developer, faced with an FHA/ADA enforcement action, including orders finding the insurer in breach of its contract for failing to pay defense costs and compelling payment of ongoing attorneys’ fees in connection with the underlying enforcement action.
  • Prevailed in summary judgment on claim for declaratory relief by an insured multifamily housing developer seeking to avoid changes made in the renewal of a professional liability policy without express notice to the insured.
  • Achieved dismissals of declaratory judgment actions filed against two separate clients by insurers both seeking declarations denying the client insureds coverage for underlying liability suits, including a legal malpractice suit and a putative class-action construction defect suit.
  • Established liability on summary judgment against a commercial property insurance carrier for a multi-million dollar claim involving damage to a natural gas pipeline over objections that the subject damage was caused by defective workmanship or construction.
  • Obtained summary judgment in a published decision from Judge Schneider in the Eastern District of Texas on an excess insurer’s claims of “prejudice” allegedly resulting from “late notice” in a dispute over coverage for defense and indemnity in connection with an underlying medical malpractice claim.
  • Obtained coverage for the entirety of an underlying settlement of federal and state employment discrimination and Equal Pay Act claims against a roofing contractor.
  • Represented a natural gas utility in a dispute over coverage for defense costs incurred in connection with a series of underlying lawsuits arising out of a natural gas leak resulting in bodily injuries and property damage.
  • Represented restaurant franchise and its chief executive in a dispute over coverage under a directors and officers liability policy for defense costs incurred in connection with an underlying suit seeking injunctive relief and claiming breach of contract and trade secret misappropriation.
  • Represented a manufacturer of metal and related products in a dispute over coverage for a multi-million dollar debt under a trade credit policy.
    Represented an oil, gas and power engineering firm in connection with coverage for underlying multi-million dollar professional services claims arising out of the construction of an inter-state pipeline.
  • Represented a leading manufacturer of pumps, valves, seals and related components in obtaining coverage under directors and officers liability policies for tens of millions of dollars in defense costs arising out of underlying securities class action litigation.
  • Represented a theater company in a dispute over coverage under a directors and officers liability policy for the settlement of underlying litigation alleging fraud and breach of fiduciary duty.
  • Negotiated payment of a developer’s self-insured retention from the proceeds of a subrogation action maintained by the insured’s general liability carrier against subcontractors’ policies naming the developer as an additional insured.
  • Represented a multifamily housing developer in a dispute with its general liability carrier over the amount of deductible applicable to an underlying construction defect arbitration proceeding.
  • Obtained policy limits under a homeowners policy for damage to a residence, alleged by the insurer to have been damaged only in part by a multiple-fatality fire.
  • Represented a leading food and beverage company in consultation and litigation regarding coverage for a multi-million dollar judgment awarded against the insured in an underlying auto-fatality lawsuit.
  • Represented a leading manufacturer of recycled wood composite building products in coverage litigation to recover defense costs and settlement amounts relating to product-defect claims under various umbrella liability policies.
  • Represented a leading manufacturer of automotive lubricants and car care products in coverage litigation over the amount of deductible owed under a pollution legal liability policy in connection with five underlying pollution lawsuits.
  • Obtained a multi-million dollar recovery for a leading real estate developer under commercial property policies for damage to a multi-family housing project located in downtown New Orleans damaged by Hurricane Katrina.
  • Obtained payment for defense costs, settlement amounts and costs to comply with EPA Administrative Orders for an independent, international oil and gas exploration and production company in connection with a civil lawsuit and various administrative orders issued by the EPA in connection with alleged groundwater contamination in Montana.
  • Represented a leading provider of advanced compression, on-demand and interactive television solutions in a coverage dispute to obtain defense costs and settlement amounts incurred in connection with underlying employment claims.
  • Represented a global telecommunications company in coverage litigation to obtain defense costs and reimbursement of a multi-million dollar arbitration award in an underlying licensing and trade secret dispute.
  • Obtained summary judgment in a published decision by Judge Fitzwater finding a duty to defend allegations of discrimination and violations of the Fair Housing Act and Americans with Disabilities Act against a leading developer of multi-family housing.
  • Obtained a recovery in coverage litigation for an independent oil and gas production company of the cost incurred to relocate a tank battery under a voluntary clean-up cost reimbursement provision found within an oil and gas endorsement in a general liability policy.
  • Obtained summary judgment finding a duty to defend allegations of violations of the Fair Housing Action in connection with the “property damage” coverage provided by a general liability policy.
  • Represented a multi-family housing developer in a variety of first-party claims involving multiple properties and losses ranging from soil subsidence to water infiltration/damage.
  • Obtained settlement proceeds after withstanding a motion for summary judgment in the representation of an oil and gas exploration services company in litigation involving coverage for third-party claims for property damage resulting from the blowout of a gas well in west Texas.
  • Obtained a published summary judgment for a leading supplier of mobile telecommunications systems finding a duty to defend allegations of “cellular injury” purportedly caused by radio frequency radiation emanating from cell phones asserted in five-class action lawsuits.
  • Represented a manufacturer of roofing products and other building materials in first-party commercial property claims asserted in connection with the collapse of a steel silo containing the insured’s product.

Speeches and Publications

  • "Deepwater Horizon Is Not Over Yet," Law360, September 16, 2013.
  • "A Policyholder's Guide to Insurance Coverage for 'Cyber' Events," Bloomberg BNA Corporate Accountability Report, July 26, 2013.
  • "Appraisal in Texas: An Argument for Appraisal as a Key to Coverage," Journal of Texas Insurance Law, Summer 2012.
  • "Insurance Appraisal as a Key to Coverage," Journal of Texas Insurance Law, Forthcoming, Fall 2012.
  • "U.S. v. Jones: Warrantless Use of Vehicle Tracking Device," Patrick Higginbotham Inn of Court, November 2011.
  • "Unintended Consequences: An Update on the Impact of the Financial Crisis on Your Insurance Coverage Practice," University of Texas Law School, 2011 Insurance Law Institute, November 2011, Austin, Texas.
  • "Deductibles And Self-Insured Retentions: Who Pays When Multiple Policies Apply?" Headnotes, October 2011, Dallas Bar Association.
  • "Don’t Expose Yourself: Risk Management in Your Franchise System," International Franchise Association, 44th Annual Legal Symposium, May 2011, Washington, D.C.
  • "Keys to Coverage: Understanding and Fulfilling The Insured’s Contractual Duties," University of Houston, Advanced Personal Injury Seminar, July 2010.
  • "A Comprehensive Overview of Dodd-Frank Wall Street Reform and Consumer Protection Act," Haynes and Boone Webinar, July 21, 2010.
  • "The Regulatory Reform Bill: Opportunities and Risks - Dodd-Frank Wall Street Reform and Consumer Protection Act," Webinar, July 2010.
  • "Reconciling APIE v. Garcia with Mid-Continent Cas. Co. v. Liberty Mutual Ins. Co.," Journal of Texas Insurance Law, Spring 2010.
  • "MBIA, Inc. v. Federal Insurance Company: D&O Coverage For Regulatory Subpoenas & Derivative Investigations," Corporate Counsel, February 2010.
  • "Directors’ & Officers’ Coverage Priorities in the Financial Crisis: A Seven-Point Inspection for Your D&O Policy," 17th Annual Corporate Counsel Symposium, October 2009, Dallas, Texas.
  • "Finding the Silver Lining: General Liability Coverage For FHA/ADA Claims", Multihousing News, April 2009.
  • "Bad Faith 101: A Primer on Policyholders’ Extra-Contractual Claims under Texas Law," Insurance Law Basics Seminar, April 2009, Dallas Texas.
  • "The New Carrier-Insured-Carrier Relationship: The Problem of Multiple Carrier Sharing After Mid-Continent v. Liberty Mutual," 13th Annual Insurance Law Institute, April 2008, Austin, Texas.
  • "Finding A Stowers Duty in the Face of Unresolved Coverage Issues," 5th Annual Advanced Insurance Law Course, March 2008, Dallas Texas.
  • "The Stowers Duty After Frank’s Casing: A Policyholder’s Guide to Settlement of Third-Party Claims in the Face of Unresolved Coverage Issues," University of Houston, October 2007.
  • "Waiting Out the Intellectual Winter: The Role of the Court in Defining the Tenth Amendment," (2002).

Selected Representative Experience


Calhoun County ISD et al. v. Michael Williams, Commissioner of Education, et al. (250th District Court, Travis County, Texas 2014)
Represented 88 school districts in a successful challenge to the constitutionality of the Texas school finance system. Following a 16-week, two-phase trial, our clients prevailed on their claims that (1) they lacked sufficient resources to provide all of their students with a meaningful opportunity to achieve a constitutionally adequate education; and (2) the system had evolved into an unconstitutional state property tax because state laws and mandates strip districts of any meaningful discretion over the setting of their property tax rates.

Fair Housing Act and Americans with Disabilities Act Judgment - Developer of Multi-Family Housing
Obtained summary judgment in a published decision by Judge Fitzwater finding a duty to defend allegations of discrimination and violations of the Fair Housing Act and Americans with Disabilities Act against a leading developer of multi-family housing.

Flowserve Corporation Securities Litigation
Defending a worldwide manufacturer of pumps, valves and seals for flow control systems in a class action alleging securities fraud arising from accounting restatement, merger integration issues, and missed earnings projections. Obtained an order denying class certification and granting complete summary judgment in favor of the defendants, which was remanded for further proceedings after appeal.

Bodily Injury Claims - Owner of Nursing and Personal Care Facilities
Represented the owner of nursing and personal care facilities to obtain payment for settlement amounts and defense costs relating to various claims for bodily injury asserted by residents.

Auto Fatality Lawsuit - Leading Food and Beverage Company
Represented a leading food and beverage company in consultation and litigation regarding coverage for a multi-million dollar judgment awarded against the insured in an underlying auto-fatality lawsuit.

Commercial Property Claims - Manufacturer of Roofing Products
Represented a manufacturer of roofing products and other building materials in first-party commercial property claims asserted in connection with the collapse of a steel silo containing the insured’s product in 2005.

Coverage Litigation - Independent Oil and Gas Production Company
Obtained a recovery in coverage litigation for an independent oil and gas production company of the cost incurred to relocate a tank battery under a voluntary clean-up cost reimbursement provision found within an oil and gas endorsement in a general liability policy.

Coverage Litigation - Global Telecommunications Company
Represented a global telecommunications company in coverage litigation to obtain defense costs and reimbursement of a multi-million dollar arbitration award in an underlying licensing and trade secret dispute.

Coverage Dispute - Provider of On-Demand and Interactive Television Solutions
Represented a leading provider of advanced compression, on-demand and interactive television solutions in a coverage dispute to obtain defense costs and settlement amounts incurred in connection with underlying employment claims.

Coverage Litigation - Manufacturer of Automotive Lubricants
Represented a leading manufacturer of automotive lubricants and car care products in coverage litigation over the amount of deductible owed under a pollution legal liability policy in connection with five underlying pollution lawsuits.

Fair Housing Act Violations - Developer of Multi-Family Housing
Obtained summary judgment finding a duty to defend allegations of violations of the Fair Housing Action in connection with the “property damage” coverage provided by a general liability policy.

First-Party Claims - Multi-Family Housing Developer
Represented a multi-family housing developer in a variety of first-party claims involving multiple properties and losses ranging from soil subsidence to water infiltration/damage.

Third-Party Claims - Oil and Gas Exploration Services Company
Obtained settlement proceeds after withstanding a motion for summary judgment in the representation of an oil and gas exploration services company in litigation involving coverage for third-party claims for property damage resulting from the blowout of a gas well in west Texas.

Summary Judgment - Mobile Telecommunications System Supplier
Obtained a published summary judgment for a leading supplier of mobile telecommunications systems finding a duty to defend allegations of “cellular injury” purportedly caused by radio frequency radiation emanating from cell phones asserted in five-class action lawsuits.

Civil Lawsuit and Administrative Orders - Independent International Oil and Gas Exploration and Production Company
Obtained payment for defense costs, settlement amounts and costs to comply with EPA Administrative Orders for an independent, international oil and gas exploration and production company in connection with a civil lawsuit and various administrative orders issued by the EPA in connection with alleged groundwater contamination in Montana.

Insurance Coverage Litigation - Manufacturer of Recycled Wood Composite Building Products
Represented a leading manufacturer of recycled wood composite building products in coverage litigation to recover defense costs and settlement amounts relating to product-defect claims under various umbrella liability policies.

Recovery for Real Estate Developer - New Orleans
Obtained a multi-million dollar recovery for a leading real estate developer under commercial property policies for damage to a multi-family housing project located in downtown New Orleans damaged by Hurricane Katrina.

Online Publications

07/30/2014 - Sixth Circuit Clarifies Scope of Medicare Secondary Payer Liability for Non-Group Health Plans
On July 16, 2014, the Sixth Circuit Court of Appeals confirmed that a “health care provider can bring the Medicare Secondary Payer Act’s (“MSP’s”) private cause of action against a non-group health plan that denies coverage for a reason besides Medicare eligibility.” 

07/24/2014 - Turning Lemons into Lemonade: Insurance Coverage Lessons Learned from Heartland Payment Systems
This past June marks nine years since the data breach at CardSystems Solutions, which involved the disclosure of names, account numbers and verification codes for some 40 million cardholders.

06/30/2014 - Fifth Circuit Holds Any Claim that Exhausts Underlying Insurance Can Trigger Excess Insurance
In a win for policyholders relying on multiple coverage layers, the Fifth Circuit held on June 23, 2014 that an excess liability insurance policy could be triggered by exhaustion of a “retained limit” - equal to the limits of underlying insurance - even if the amounts paid to meet the “retained limit” were not covered by the excess policy.

06/10/2014 - Offshore With A Hole In Your Paddle: Does Your Risk Management Cover The New Post-Macondo World?
This presentation discusses BSEE in the Post-Macondo World, the perfect regulatory storm for both lessees and contractors.

05/08/2014 - A Desk Guide to Data Protection and Breach Response - Special Series
If your business is connected to the Internet, it is vulnerable to attack, either by willful perpetrators intent on exfiltrating your proprietary or sensitive data for their own personal gain, or by casual hackers or hacktivists intending to cause damage to your business.

05/08/2014 - Preserving Insurance Coverage for Contractual Liability
Texas operators and service companies need to carefully consider how a recent trend in Texas law affects the availability of insurance coverage - for themselves and their counterparties - for contractual liability.

04/03/2014 - A Desk Guide to Data Protection and Breach Response - Part 8
In this final installment of our series, A Desk Guide to Data Protection and Breach Response, we outline four key considerations that every company should be aware of in pursuing coverage for claims and losses arising out of a cyber/privacy breach.

02/27/2014 - A Desk Guide to Data Protection and Breach Response - Part 3
In this installment of A Desk Guide to Data Protection and Breach Response, we outline issues businesses should consider when purchasing cyber liability policies.

02/17/2014 - New York Court of Appeals Rules Contractual Limitations Period Unenforceable, Resolving Conflicting Policy Conditions in Favor of Coverage
In a decision issued on February 13, the New York Court of Appeals ruled that a policy’s contractual limitations provision requiring suit to be filed within two years of a loss is “unreasonable and unenforceable” when the insured’s property cannot be reasonably replaced (as necessary to fulfill a separate condition of coverage) within the two-year limitations period.

01/21/2014 - Texas Supreme Court Limits the Scope of the Contractual Liability Exclusion
On Friday, January 17, 2014, the Texas Supreme Court issued its opinion in Ewing Construction Company v. Amerisure Insurance Company - holding that “a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, . . . does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.”

10/10/2013 - The Government Shutdown: Can “Contingent Business Interruption” or “Civil Authority” Coverage Mitigate Business Losses?
Whether you call it a “shutdown” or a “slowdown,” the lack of a fully-funded federal government is impacting more than the 800,000 federal workers furloughed since October 1.

09/17/2013 - Law360 Guest Article: Deepwater Horizon is Not Over Yet
BP will have to wait a little longer to find out whether it is entitled to as much as $750 million of “additional insured,” or AI, coverage under Transocean’s policies for BP’s subsurface pollution liability arising out of the Deepwater Horizon incident in 2010.

09/04/2013 - Fifth Circuit Court of Appeals Certifies Deepwater Horizon “Additional Insured” Issues To The Texas Supreme Court
On March 1, the Fifth Circuit Court of Appeals ruled that $750 million of primary and excess coverage issued to Transocean Holdings, Inc. (“Transocean”) “imposes no relevant limitations upon the extent to which BP [BP American Production Company] is covered” as an additional insured in connection with the Deepwater Horizon incident in April 2010.

08/16/2013 - Bloomberg BNA Corporate Accountability Report Guest Article: A Policyholder’s Guide to Insurance Coverage for ‘‘Cyber’’ Events (Part II)
Insurance policies are as varied as the risks they address,from ordinary commercial general liability coverage to more exotic coverages such as political risk insurance or warranty and indemnity contracts. However, with respect to the risks commonly associated with a ‘‘cyber event,’’ three traditional coverage types are relevant: liability insurance, property insurance, and crime/fidelity insurance.

08/09/2013 - Bloomberg BNA Corporate Accountability Report Guest Article: A Policyholder’s Guide to Insurance Coverage for ‘‘Cyber’’ Events (Part I)
The threats facing U.S. companies from cyber attacks are myriad.

07/31/2013 - Fifth Circuit Court of Appeals Addresses Insurers’ Claims to Enforce Indemnity Rights in an Insured’s MSA
Third party insurers are not entitled to enforce an insured’s defense, indemnification or insurance rights in a master services agreement (“MSA”) according to a three-judge panel of the Fifth Circuit Court of Appeals in an opinion issued on July 5.

06/24/2013 - Texas Authorizes Domestic Pure Captive Insurance Companies
On June 14, 2013, Governor Rick Perry signed legislation, which for the first time authorizes domestic captive insurers in Texas. The bill, known as SB 734, allows Texas businesses to realize the advantages, including tax benefits, of forming and operating a “pure” captive insurance company without the burden and cost associated with an out-of-state captive.

06/19/2013 - Cyber Liability & Loss: Practical Tips on Preparing for and Responding to a Cyber Security Breach
Haynes and Boone, PricewaterhouseCoopers, McGriff, Seibels & Williams (a BB&T Company) recently hosted an event to discuss practical tips for directors, officers, risk managers and general counsel on how to mitigate the risk of a cyber/privacy breach.

05/28/2013 - Tornado Insurance Claims: A Seven-Point Checklist for Commercial Property Policyholders
Every year, tornadoes in the United States cause dozens of fatalities and inflict billions of dollars in property damage. 

05/06/2013 - Top Ten Tips for Purchasing and Negotiating Representations and Warranty Insurance
In recent months, high profile M&A warranty claims and falling premiums have dramatically increased the utilization of "representations and warranty insurance" (RWI), also known as "warranty and indemnity insurance," in mergers, acquisitions and related transactions.

03/06/2013 - Determining the Scope of “Additional Insured” Coverage: Fifth Circuit Issues New Decision in Deepwater Horizon Coverage Litigation
Only the terms of the insurance policy itself - and not the provisions of an underlying indemnity contract - determine the scope of coverage afforded to an additional insured, provided that the insurance and indemnity provisions in the underlying indemnity contract are separate and independent from one another.

02/25/2013 - Insurance Coverage for Cyber Attacks
On Tuesday, February 19, 2013, information security firm Mandiant issued a report documenting computer security breaches at hundreds of organizations, allegedly resulting from a cyber-espionage campaign undertaken by elements of the Chinese government.

10/15/2009 - Directors' & Officers' Coverage Priorities in the Financial Crisis: A Seven-Point Inspection for Your D&O Policy
Over the past year, the “financial crisis” has become a euphemism meaning different things to different people. For employees, the “financial crisis” may mean the loss of savings, wages or even a job. For thousands of homeowners, the “financial crisis” could suggest “foreclosure.” Alternatively, business owners may equate the “financial crisis” with an inability to obtain capital or a loss of revenue. For directors and officers, however, the “financial crisis” may also mean increased exposure, both in size and number, to claims by shareholders and regulators.

04/20/2009 - Finding the Silver Lining: General Liability Coverage For FHA/ADA Claims
Over the past several years, developers and owners of multifamily housing have been the targets of numerous lawsuits filed by government enforcement agencies, including the United States Department of Justice, private disability rights organizations, and individuals alleging violations of the Fair Housing Act (the “FHA”) and Americans with Disabilities Act (the “ADA”). The “damages” and attorneys’ fees claimed by plaintiffs in these lawsuits, including the cost to modify existing buildings to comply with applicable accessibility guidelines, have created significant financial exposure to the multifamily housing industry.

04/02/2009 - After Don's Building: Change is the One Thing We Can Be Sure Of
In 2008, the Texas Supreme Court completely changed the trigger of coverage theory for occurrence based Commercial General Liability (“CGL”) policies in Texas. The Court held that, where damage occurs over multiple policy periods, coverage is triggered for any policy period in which actual damage transpires.