Concurrent causation. It’s as international to some courts because the Rule of Perpetuities is to a first-year regulation scholar, or quantum mechanics could be to the typical Joe.
Regardless of the widespread confusion on the strategy utilized in insurance coverage claims for dealing with losses that happen from a number of perils, the Florida Supreme Courtroom appeared to have gotten it proper again in 2016 with the Sebo v. American Residence Assurance Firm determination,1 which now serves as Florida’s landmark case on concurrent causation.
Sebo concerned diving into the coverage’s exclusions and its exceptions, the oh so acquainted “ensuing loss” or “ensuing loss” provisions. Though the Sebo coverage had what is named “anti-concurrent causation” (ACC) language underneath among the exceptions—voiding an excluded peril despite the fact that it was lined as a ensuing or an ensuing loss—the faulty design and workmanship exclusion within the Sebo coverage didn’t include such ACC language. This truth affirmed protection for the Plaintiff. The court docket stood on the discovering that since different exclusions of the Sebo coverage contained ACC language, however the faulty design and workmanship exclusion particularly didn’t, the plain language of the coverage didn’t preclude the Plaintiff from restoration underneath the following loss provision.
As many Florida policyholder Hurricane Ian claims start to get thrown into the litigation oven, policyholder attorneys are discovering themselves trying into their purchasers’ topic insurance policies for ACC language earlier than submitting swimsuit. As if concurrent causation wasn’t an issue for some courts sufficient, a policyholder legal professional should do their due diligence in figuring out the ACC language inside the insurance policies and figuring out if their shopper’s declare can maintain water (no pun meant) earlier than submitting swimsuit.
Many carriers stick ACC language within the preamble of their insurance policies, however this language is often discovered inside the exclusion sections as properly. One might think about how the existence of ACC language inside a coverage will help insurance coverage firms reduce and even deny a policyholder’s declare for harm attributable to a catastrophic storm that brings a number of perils, resembling a hurricane.
In September 2022, Hurricane Ian made landfall on the West Coast of Florida and ranked as one of the crucial devastating hurricanes ever to hit the state. Ian, ranked as a class 5 storm, introduced over 150 mph winds and over 12-foot storm surge in some areas.
Now, if a policyholder had been to file a declare for wind and flood harm to their property as a consequence of Hurricane Ian, wind harm might be lined underneath most all-risk householders insurance coverage insurance policies, but when ACC language had been inserted in the suitable areas inside the coverage excluding protection for flood harm, it might preclude the policyholder from amassing on the ensuing or ensuing loss. This has a big effect on claims dealing with as greater than 5,000 properties had been destroyed in Lee County, Florida, and practically 30,000 extra had been broken from Hurricane Ian, with a excessive variety of these attributable to storm surge.
Since 2020, over fifteen insurance coverage firms have gone into receivership, and since then, carriers have been narrowing their insurance policies much more. ACC clauses are being discovered all through insurance policies now greater than ever. Whereas concurrent causation could have favored many policyholders up to now, the modern-day ACC clauses have come to the rescue for insurers as we transfer into the long run.
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1 Sebo v. American Residence Assurance Co., 208 So. 3d 694 (Fla. 2016).