Senior Federal Judge L.T. Senter, Jr. of the Southern District of Mississippi has come full circle in his analysis of the anti-concurrent cause provision in home-owner's policies. Judge Senter has been in the trenches, handling many of the initial Katrina insurance related cases at the trial court level. In some of Judge Senter's initial Katrina decisions, he struck the anti-concurrent cause clause as ambiguous. See Leonard v. Nationwide Mut. Ins. Co., 438 F. Supp. 2d 684, 693 (S.D. Miss. 2006); Tuepker v. State Farm, 2006 U.S. Dist. LEXIS 34710 (S.D. Miss. May 23, 2006). These cases were eventually reversed by the Fifth Circuit. See See Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419 (5th Cir. 2007); Tuepker v. State Farm, 507 F.3d 346 (5th Cir. 2007). Reversing course, Judge Senter recently offered a cogent analysis in discussing the applicability of the anti-concurrent cause provision when denying an insurer's motion for reconsideration. See Dickinson v. Nationwide Mutual Fire Ins. Co., No. 1:06CV198 (S. D. Miss. April 25, 2008). Dickinson.PDF
In language nearly identical to that used by First Insurance Company of Hawaii's home-owner's policy, the anti-concurrent cause provision in Nationwide's policy stated:
Property Exclusions:
a. We do not cover loss to any property resulting directly or indirectly from any of the following. Such a loss is excluded even if another peril or event contributed concurrently or in any sequence to cause the loss.
Nationwide argued because wind damage preceded the damage from storm surge flooding and therefore occurred in a sequence of events, the "in any sequence" language invalidated plaintiff's claim for wind damage.
Judge Senter found this interpretation unreasonable. The anti-concurrent cause provision applied only to damage to a specific item of insured property that was attributable to both the excluded peril of flooding and also another cause, i.e., wind. Any loss in which the excluded peril of flooding had no part, i.e., wind damage did not fall within the anti-concurrent cause provision because it was not part of "the loss" the provision referred to. Wind and storm surge flooding were separate causes of separate damage to the insured property, and the separate wind damage did not contribute, sequentially or concurrently, to "the loss" caused by storm surge flooding. Accordingly, the wind damage was outside the anti-concurrent cause provision and was a covered loss while the subsequent flood damage was not.
In conclusion, Judge Senter stated, "Wind and flood were separate and not concurrent causes of damage to the insured property, and the wind damage that precedes the storm surge does not contribute, sequentially or concurrently, to 'the [excluded] loss' caused by storm surge flooding and referred to by the ACC." The Fifth Circuit could not have stated it better.
