Hawaii courts have yet to determine the impact of an anti-concurrent cause provision when a property owner suffers damage caused by wind and rain.  The U.S. District Court for the District of Maryland recently found such a provision in a homeowner’s policy barred coverage where both wind and rain caused damage.  Bao v. Liberty Mutual First Ins .Co., 2008 U.S. Dist. LEXIS 15168 (D. Md. Feb. 27, 2008).

     In June 2006, a strong wind and rainstorm hit the Baltimore area and a substantial amount of water entered plaintiff’s home.  It was determined that water damage was directly or indirectly the cause of plaintiff’s loss.  Plaintiff held an all risk policy with Liberty Mutual but it did not insure for water damage.  Such loss was excluded regardless of any other cause or event contributing concurrently or in any sequence of loss.

     Plaintiff urged the court to adopt the efficient proximate cause analysis. Under this doctrine, if there were two causes for a loss, the predominant cause would be the cause to which the loss would be attributed.  Plaintiff argued there was coverage for the loss notwithstanding the applicability of the anti-concurrent cause provision because the direct force of wind was the efficient proximate cause.  This argument would require rejection of the concurrent causation clause in the policy.

     Plaintiff cited cased law from California, West Virginia and Washington supporting the application of the efficient proximate cause analysis.  The District Court noted, however, that the policies in these cases did not have an anti-concurrent cause provision like the one in the instant case.  Therefore, the District Court predicted the Maryland courts would not apply the efficient proximate cause doctrine.  Regardless of whether wind or water damage was the efficient proximate cause, Liberty was correct in denying coverage of plaintiff’s loss based on the concurrent cause provision.

     Consequently, the efficient proximate cause doctrine could still be applicable if the policy does not have an anti-concurrent cause provision.  Most policies written today, however, have such a provision.