As we have discussed in our Causation summary, where multiple distinct, separate causes of a loss are involved, some of which are covered and some of which are excluded, most courts will make a coverage determination based on either a “concurrent causation” analysis, or the “efficient proximate cause” rule, in the absence of specific policy language governing causation.
However, some property policies provide explicit language that certain excluded losses are excluded regardless of whether another covered cause of loss is at issue. Typical anti-concurrent causation language provides that the loss will be excluded “whether or not any other cause or event contributes concurrently or in any sequence to the loss.” This anti-concurrent causation clause is typically included as part of only a small number of exclusions, including water damage, earth movement, nuclear hazard, etc.
While the vast majority of jurisdictions enforce anti-concurrent causation language in property policies under the basic principle of freedom of contract, a minority of jurisdictions have determined that insurers cannot contract around the jurisdiction’s public policy interest in enforcing the efficient proximate cause rule. There are four jurisdictions that do not enforce anti-concurrent causation clauses: California and North Dakota have statutes that courts have held to preclude enforcement of these clauses. Washington State courts have followed the California authority. The West Virginia Supreme Court has refused to enforce anti-concurrent causation clauses as a matter of judicially-adopted “public policy.” See Murray v. State Farm Fire & Cas. Co., 203 W. Va. 477 (W. Va. 1998).
Many commercial and residential property insurance claims arising from major hurricanes like Hurricane Harvey present damage caused by multiple causes of loss, some of which may be covered (e.g., wind) and some of which may not (e.g., flood). One of the recurrent legal issues in these multiple causes of loss claims is the treatment of … Continue Reading
Frequent readers of the blog will appreciate that disputes involving the application of anti-concurrent causation language in the context of claims for flood or water damage have appeared with some frequency in recent years. This increased level of cases is due in large part to the damage caused by Hurricane Irene in 2011 and Hurricane … Continue Reading
We have discussed on a number of occasions the issue of causation when there are multiple causes of loss, some covered and some not covered. Most jurisdictions apply what is known as the efficient proximate cause analysis with a minority of jurisdictions applying the concurrent causation analysis, both of which are explained on our blog … Continue Reading
As we have written about before on this blog, the water damage caused by Hurricane Sandy in October 2012 gave rise to important questions concerning the applicability of so-called “anti-concurrent causation” clauses. Such was the case in the recently-decided matter of Carevel, LLC v. Aspen American Ins. Co., 2016 U.S. Dist. LEXIS 157919 (D.N.J. Nov. … Continue Reading
Readers of this blog may note that we have previously discussed the topic of anti-concurrent causation clauses in various jurisdictions around the country (see here, here, and here). As a quick reminder, an anti-concurrent causation clause is that prefatory language that precedes a list of excluded perils, and that generally provides that the policy “does … Continue Reading
In insurance fraud cases involving actual or alleged destruction of evidence by the insured, an issue often arises regarding whether an adverse inference instruction is appropriate, and, if so, what form it should take. The Second Circuit recently approved a “light” form of adverse inference instruction that allowed the jury to make an adverse inference … Continue Reading
Significant attention has been given in the media to the New York Assembly’s recent passage of several bills, apparently motivated by Storm Sandy, that would impact property insurance claim handling and litigation. None of these bills have been passed by the state senate yet, or signed by the governor. Some of them have been inaccurately described in … Continue Reading
In Stor/Gard, Inc. v. Strathmore Ins. Co., No. 12-1650, 2013 U.S. App. LEXIS 11015 (1st Cir. May 31, 2013), the First Circuit rejected the notion that a 2% contribution to a loss could be a “cause” of the loss. Defendant Strathmore Insurance Company (“Strathmore”) insured Plaintiff SGI, which owned property with self-storage warehouses, and Plaintiff … Continue Reading
Most states enforce anticoncurrent causation provisions, as we have described in our summary of such provisions. Recently, the Court of Appeals of the State of Oregon determined that a policy was ambiguous despite the fact that the insureds stipulated that collapse caused the damage, and the policy excluded loss caused by collapse with anticoncurrent preamble … Continue Reading
On November 6, the Consumer Federation of America sent a letter to elected officials in states affected by Hurricane Sandy in which it suggests that regulators should “block application” of anti-concurrent causation clauses: A typical anti-concurrent causation (ACC) clause might read, “[w]e will not pay for loss or damage caused directly or indirectly by any … Continue Reading
The United States District Court for the District of Arizona recently held that the efficient proximate cause doctrine does not exist in Arizona and, therefore, a policy’s concurrent causation language should be given effect. In Stankova et al. v. Metropolitan Property and Casualty Ins. Co., 2012 U.S. Dist. LEXIS 150900 (D. Ariz. Oct. 17, 2012), … Continue Reading
For the second time in two months, the Massachusetts Supreme Judicial Court was called upon to decide whether or not property damage was covered when the damage resulted from a combination of a covered peril and an excluded peril. Once again, the court upheld the policy’s enforceable anti-concurrent causation language, finding that coverage was precluded. … Continue Reading
The Massachusetts Supreme Judicial Court recently considered the interplay between “hidden seepage” coverage, and a “surface water” exclusion, holding that the policy’s enforceable anti-concurrent causation language made all the difference in the court’s conclusion that a loss caused by surface water seeping into a structure was excluded. In Boazova v. Safety Insurance Company, Docket No. SJC-10908, … Continue Reading