Hurricane Irma and Florida’s Enforcement of Anti-Concurrent Cause Clauses

Insurers assessing coverage for Irma claims should consider how Florida courts have interpreted anti-concurrent cause language for losses caused by multiple independent perils.

As homeowners and businesses in Florida regroup and submit their Irma claims, insurers evaluating coverage should consider how Florida courts have interpreted anti-concurrent cause language. Though Florida now employs the concurrent cause doctrine as a default for losses caused by multiple independent perils, courts have enforced anti-concurrent cause clauses to preclude coverage for such losses where at least one peril is not covered.¹

Concurrent Cause Doctrine

When multiple independent perils combine to cause a loss, Florida courts will likely apply the concurrent cause doctrine and may find coverage if at least one of the causes is a covered peril.² For example, if a loss was caused by an earthquake and a lightning strike, or a windstorm and wood rot, a court applying Florida’s concurrent cause doctrine may find coverage, regardless of which peril was covered or excluded.³

Florida’s Treatment of Anti-Concurrent Cause Language

An anti-concurrent cause clause (“ACC clause”) is a contractual limitation “in a first-party insurance policy that provides that when a covered cause and noncovered clause combine to cause a loss, all losses directly and indirectly caused by those events are excluded from coverage.”⁴ If the exclusion does not include an ACC clause, the default concurrent cause doctrine should apply.

Below is an example ACC clause:

We will not pay for “loss” caused directly or indirectly by any of the following. Such “loss” is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the “loss.”⁵

Courts applying Florida law have upheld express anti-concurrent clause language—such as this—when confirming that parties can contract around the state’s default concurrent cause rule.

In Paulucci v. Liberty Mutual Fire Insurance Co., a U.S. District Court applying Florida law evaluated a property loss claim where a commercial building collapsed during Tropical Storm Gordon. The parties disputed whether the loss was caused by the excessive pooling of rainwater on the roof or the building’s deteriorated condition. The ACC clause listed above was included in the policy’s rot exclusion. The court concluded that this clause was valid and enforceable, but declined to grant summary judgment to the insurer, in part, because there was a question of fact regarding whether preexisting rot caused the collapse.⁶

In State Farm Fire & Casualty Co. v. Metropolitan Dade County, the County sought a declaratory judgment that certain State Farm homeowners’ policies provide coverage for code upgrades and home elevation alterations following Hurricane Andrew. State Farm disagreed and argued that, while its policies covered damages from the hurricane, they excluded losses caused by the enforcement of ordinances or laws. The trial court granted summary judgment for the County and State Farm appealed. A Florida Court of Appeals reversed, upholding the following anti-concurrent cause language:

We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; (b) other causes of the loss; (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 a result of any combination of these; . . . 

The court concluded that the above language was unambiguous and meant that “the existence of an excluded event will, regardless of any other forces involved, remove the loss from the purview of coverage.” Because the policies excluded costs due to enforcement of ordinances and laws, the court remanded the case for entry of judgment for State Farm.⁷

In sum, while courts applying Florida law have recognized and enforced AAC clauses for exclusions, the outcome of any case will depend upon the policy language and facts at issue. ACC clauses may well provide relief for insurers facing independent multi-peril claims from the Sunshine State.

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¹ See, e.g., State Farm Fire & Cas. Co. v. Metro. Date Cnty., 639 So. 2d 63 (Fla. Dist. Ct. App. 1994); Paulucci v. Liberty Mut. Fire Ins. Co., 190 F. Supp. 2d 1312 (M.D. Fla. 2002); Empire Indem. Ins. Co. v. Winsett, 325 Fed. Appx. 849, 851-52 (11th Cir. May 4, 2009) (reversing summary judgment and vacating declaratory judgment for the insureds because the policy’s unambiguous language excluded coverage for mold “regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage,” such that the efficient proximate cause and concurrent cause doctrines did not apply).
² Sebo v. Am. Home Assurance Co., Inc., 208 So. 3d 694, 695, 697, 700 (Fla. 2016) (holding that the concurrent cause doctrine—and not the efficient proximate cause doctrine—applies “when independent perils converge and no single cause can be considered the sole or proximate cause.”).
³ Paulucci, 190 F. Supp. 2d at 1319.
⁴ Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486, 487 (Fla. Dist. Ct. App. 2015).
⁵ Paulucci, 190 F. Supp. 2d at 1319 (quoting language from a Liberty Mutual policy).
⁶ Id. at 1319-20, 1326.
⁷ State Farm Fire and Cas. Co., 639 So. 2d at 64-66.