Anti-concurrent causation clause

Law Reviews are where the academic discussions of law are openly published. While in law school, I was fortunate to serve as the Executive Editor on the University of Florida Law Review. The experience enabled me to research, correct and debate with law professors and scholars about points of law and how they should be framed for public review. Last week, the Mississippi Law Journal published an article, William F. “Chip” Merlin, Jr., Corban v. USAA: A Case Providing Far Too Little Because It Was Rendered Far Too Late, 79 MISS. L.J. Supra 129 (2010), which I humbly suggest may help many understand the issues related to the anticoncurrent clause in cases involving storm surge. I strongly urge you to read it if you are an attorney representing policyholders. For everybody else, it is another example of how I can make sleep potions better than anything you can find at the pharmacy.

Continue Reading Anticoncurrent Causation Clause Explained in Relation to Hurricane Losses

A Hurricane Ivan claim that involved flood and sewer back up was not excluded because of the anticoncurrent causation clause in Bishops, Inc. v. Penn National Ins., Case Nos. 2275 WDA 2007, 35 WDA 2008 (Pa. Super. Nov. 24, 2009). The important aspect of this case is how an endorsement purchased to cover sewer back up rendered the anticoncurrent cause clause ineffective for sewer back up as well as income and extra expense coverage. Some decisions are quite easy to analyze, while others make you read portions of a court’s reasoning two or three times. This case is the latter. My tip for policyholders from this case is to always review your endorsements to see if additional coverage is provided.

Continue Reading Hurricane Anticoncurrent Causation Case and Policyholder Wins! Endorsement Trumps Exclusion

My initial and simple impression posted in Corban Mississippi Supreme Court Case Decided, Part 2 stands. My emotions and thoughts during my three readings of this decision kept reminding me of people I have met, represented, debated and lived out this saga with in Mississippi since the fall of 2005.

Continue Reading Corban Part Three: A Win for Policyholders and a Decision Following Rossmiller’s Causation Analysis of the Anti-Concurrent Causation Clause

My initial impression is that this is a huge win for policyholders because the decision correctly defines the burdens of proof in an all-risk insurance situation. The Court correctly noted what I have been advocating regarding the burden of proof since the date I first landed at Stennis Airport outside Waveland a week after Hurricane Katrina:

Continue Reading Corban Mississippi Supreme Court Case Decided, Part 2

Insurance defense attorneys argue the exclusionary language of the anti-concurrent causation  clause should be broadly interpreted because they have to get their insurance company clients “off the hook” for making wrong coverage interpretations. It is important for those attorneys representing policyholders to have a full library to combat these arguments. One such source is the FC&S publications. Those clever defense counsel are sometimes out of luck, despite their ingenious arguments, when insurance industry sources indicate that they are wrong.

Continue Reading Concurrent Causation Analysis Applied by FC&S—Learning From an Insurance Industry Source

Insurance defense attorneys will not agree with this post. However, they fear the argument enough to falsely argue in some cases that a hurricane is not a “windstorm,” in order to avoid policy language that may provide coverage for total losses where wind and water combine to destroy a structure. As promised in yesterday morning’s post, The Insurance Industry Recognizes Hurricanes are "Windstorms"–An Important Admission, I am providing legal suggestions to help TWIA policyholders and others “slabbed” to obtain full coverage for their losses. Randy Santa Cruz, William Weatherly, and I came up with this idea while working in Mississippi following the devastation of Hurricane Katrina. I’ve attached a draft memorandum of law so others may use this argument with their own facts and policy language.

Continue Reading Total Destruction Caused By Hurricane Wind and Flood May Be Covered Under the Additional Coverage of Collapse: Why Defining a “Hurricane” as a “Windstorm” is Significant

As we have seen with the Katrina and Wilma litigation, courts will enforce the anticoncurrent causation clause, standard in most all risk and wind insurance policies. Many who suffered total losses could not fully recover because they did not have adequate flood insurance. Generally, policyholders with insufficient flood coverage limits fall into three categories:

  1. Those who did not purchase flood coverage.
  2. Those who underestimated the value of full replacement cost.
  3. Those correctly estimating replacement coverage but not able to purchase the amount through National Flood.


Continue Reading Is One Practical Answer to Many Coverage Disputes Involving Storm Surge Versus Wind to Raise National Flood Limits and Underwrite Insurance to Value Properly?