Homeowners insurance policies are often filled to the brim with any number of exceptions and exclusions, often depending on the underlying cause of damage. But what if there are multiple causes? Not surprisingly, coverage decisions often go beyond black and white.
Take for example, a case involving a lightning strike that caused the collapse of a soil retaining wall, which in turn caused the shifting of soil, which in turn caused the foundation of the insured’s home to move. Or a case where flood waters caused the eruption of an oil tank which in turn caused environmental damage downstream. Does the earth movement causation exclusion apply to the former? What about a pollution damage exception to the latter?
The answer often lies in application of anti-concurrent causation provisions. A standard anti-concurrent causation provision often states the following:
“We do not insure for such loss regardless of: (a) the cause of the excluded event or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as the result of any combination of these…”
Ordinarily, under Minnesota’s concurrent causation doctrine, where an excluded peril contributes to a loss, an insured may recover only if a covered peril is the efficient and proximate cause of the loss (in layman’s terms, the cause that sets the chain of events in motion). See Anderson v. Conn. Fire Ins. Co ., 43 N. W.2d 807 (Minn.1950). True to its name, an anti-concurrent causation provision overrides and negates this legal doctrine. In other words, where an anti-concurrent causation provision is triggered, “the court need not inquire into which of a covered or excluded loss was the proximate cause of the damage, but simply exclude coverage where any portion of the loss was caused or contributed to by an excluded loss.”Ken Johnson Properties, LLC v. Harleysville Worcester Summary Ins. Co. (D. Minn. Sept. 30, 2013).
Minnesota is one of only fourteen states that unequivocally recognize the enforceability of anti-concurrent causation clauses. As a result, in those complex causation cases, one of the initial investigative steps should be to look for an anti-concurrent causation provision applicable to the relevant exclusion. If there is such a provision, chances are that the homeowner’s policy is not going to provide coverage.
One of the best illustrations of this is claims involving pollution. When it comes to pollution, you can be almost certain that there will be varying arguments as to causation. As one Minnesota court noted, “pollutants normally will not cause harm without some intervening cause. Under those circumstances, the insured could always contend some intervening factor is a ‘covered’ peril, which would be tantamount to reading the [pollution exclusion clause] out of the policy altogether.” But in a case involving pollution, if there is an anti-concurrent causation clause in effect, the Court need not delve into the intricacies of any causation arguments. Thus, in Minnesota, if there is a loss involving pollution, creative causation arguments are unlikely to hold water; any pollution exclusion will likely exclude coverage.