![handle is hein.journals/tulr88 and id is 563 raw text is: Why Won't My Homeowners Insurance
Cover My Loss?: Reassessing Property
Insurance Concurrent Causation
Coverage Disputes
Peter Nash Swisher*
Proporty isurance coverage dsputes can be extremely complex cases when there am
multiple concurrent causes in a causal chain of events and when some of these concurrnt
causes am covered under the policy language but other concurrent causes am excluded from
coverage. To complicate matters enormously them am no fewer than three &ffernt judical
approaches attempting to esolve this concurrent causation interpretive conundrum. Over the
past twv decades, a number ofproperty insurance companies have attempted to address this
interpmve problem contractually by inserting so-caled 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 commentatos. The purpose of this Article is to
analyze the strengths and weaknesses of the varous interpretive approaches In resolving
property hisurance concurrent causation coverage dputes and to suggest six policyholder
defenses to combat the often unchalengedjudcial acceptance ofsuch anti-concurrit causation
clauses in property insurance polcies.
Language of causation [m insurance policies] is sinple, but it disguises
extremely complex and &hicult legal questions. This difficulty has led to a
profusion ofinconsistent cases onrenarkablysimilarfacts.
Concurrent causadon cases am the most costly ineficient4 tortured and
unpredctable ofinsurance cases. ... It is difficult for inswers and hisureds alike
to arrnge their insurance and indeed their very conduc4 around shiffing standards
for resolving these Asputes.
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 turn could
cause a court to overreact and construe the clause too narrowly creating an
undesirable precedent.3
* © 2014 Peter Nash Swisher. Professor of Law, University of Richmond Law
School. J.D. University of California, Hastings College of Law; M.A., Stanford University;
B.A., Amherst College. The author gratefully acknowledges the research assistance of Emily
Sealy and Natalia Caruso and the helpful comments and suggestions from his faculty
colleague Corinna Barrett Lain.
1. ROBERT H. JERRY, II & DOUGLAS R. RICHMOND, UNDERSTANDING INSURANCE LAW
532-33 (5th ed. 2012).
2. Erik S. Knutsen, Confusion About Causation in hasurance: Solutions for
Catastrophic Losses, 61 ALA. L. REV. 957, 978 (2010).
3. James A. Knox, Jr., Causation, The Flood Exclusion, and Katrina, 41 TORT TRIAL
& INs. PRAC. L.J. 901, 925-26 (2006).
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