Property insurance coverage disputes can be extremely complex cases when there are multiple concurrent causes in a causal chain of events and when some of these concurrent causes are covered under the policy language but other concurrent causes are excluded from coverage. To complicate matters enormously, there are no fewer than three different judicial approaches attempting to resolve this concurrent causation interpretive conundrum. Over the past two decades, a number of property insurance companies have attempted to address this interpretive problem contractually by inserting so-called anti-concurrent causation clauses into their property insurance policy language. But these anti-concurrent causation clauses have engendered unintended and unexpected interpretive consequences of their own that have not been adequately explored by the courts or commentators. The purpose of this Article is to analyze the strengths and weaknesses of the various interpretive approaches in resolving property insurance concurrent causation coverage disputes and to suggest six policyholder defenses to combat the often unchallenged judicial acceptance of such anti-concurrent causation clauses in property insurance policies.
- Language of causation [in insurance policies] is simple, but it disguises extremely complex and difficult legal questions. This difficulty has led to a profusion of inconsistent cases on remarkably similar facts.
- Concurrent causation cases are the most costly, inefficient, tortured and unpredictable of insurance cases. . . . It is difficult for insurers and insureds alike to arrange their insurance and indeed, their very conduct around shifting standards for resolving these disputes.
- The danger with the anticoncurrent causation clause is that it could in theory tempt an insurer to take it to an unreasonable extreme, which in tum could cause a court to overreact and construe the clause too narrowly, creating an undesirable precedent.
Peter Nash Swisher, "Why Won't My Homeowners Insurance Cover My Loss?": Reassessing Property Insurance Concurrent Causation Coverage Disputes, 88 Tul. L. Rev. 515 (2014)