Imagine an case involving a policy's anti-concurrent causation clause which (1) does not arise from a Gulf State; and (2) does not concern the flood/wind dichotomy. A recent case fits this criteria: Colorado Intergovernmental Risk Sharing Agency v. Northfield Ins. Co., 2008 Colo. App. LEXIS 1165 (Colo. Ct. App. July 24, 2008).
The insured City owned and operated a hot springs swimming pool located in an enclosed building. The roof was supported by wooden trusses. After a large snowstorm, the roof collapsed.
The building was insured under three tiered policies issued by plaintiff Colorado Intergovernment Risk Sharing Agency (CIRSA), Northfield and a third insurer. CIRSA was also responsible for adjusting claims. After the collapse, CIRSA paid over $1,000,000 to repair the roof. Northfield refused to contribute to the cost of repair. CIRSA then filed suit to recover $740,000 from Northfield.
Northfield contended that decay of some of the wooden trusses, produced by the swimming pool's damp environment, caused the collapse. Northfield's policy excluded damage caused by wear and tear, including "dampness or dryness of atmosphere, changes in or extremes of temperature. . . ." CIRSA claimed it was not decay, but the weight of the snow that caused the collapse. Northfield responded that even if the collapse was caused by a combination of factors, coverage would still be denied under the policy's anti-concurrent causation clause, which preceded the exclusions and read: "We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss."
Northfield reasoned that because one of the causes (weight of the snow) was covered, but the other (decay of the wooden trusses) was expressly excluded, the anti-concurrent causation clause relieved Northfield of its obligations under the policy. Although the lower court agreed Northfield would not be liable for any portion of the loss attributed to decay of the wooden trusses, it rejected Northfield's argument that the anti-concurrent causation clause would relieve Northfield of all liability under the policy. Amazingly, the lower court interpreted the anti-concurrent causation clause to allow for apportionment of loss between included and excluded causes.
The Colorado Court of Appeals disagreed. Northfield met is burden of proving that an exclusion applied. Accordingly, the anti-concurrent causation clause barred recovery under the policy. Further, the trial court's apportionment of covered and excluded causes was incorrect. The anti-concurrent causation clause unambiguously barred any recovery if an excluded cause contributed to the loss.
