In the previous article I discussed what happens if loss / damage is caused by both a covered risk (peril) and an excluded risk (peril) in a property insurance policy. In that posting, I discussed that the efficient proximate cause doctrine has recently been applied to determine whether the loss / damage should be covered under the policy. Again, under the efficient proximate cause doctrine, if the covered risk was determined to be the most substantial factor in the loss, then the loss will be covered.
As a follow-up to this previous article and an added wrinkle to this issue, some exclusions contain what is referred to as anti-concurrent cause language. This language, in a nutshell, states that the policy does NOT cover any loss regardless of the cause contributing concurrently or in any sequence to the loss. With anti-concurrent cause language, if the loss / damage is caused by both a covered risk and an excluded risk, there is NO coverage! Anti-concurrent cause language may be found in a mold exclusion, pollution exclusion, or other exclusions in the policy. But, if the language is not specifically incorporated into an exclusion, there is the strong argument that the anti-concurrent doctrine would not apply. There may also be an argument as to the enforceability of the application of anti-concurrent cause language as some jurisdictions have refused to enforce this language.
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.