The insured unsuccessfully attempted to get around the policy's anti-concurrent causation clause by arguing a covered cause of loss was a contributing factor. See Stor/Gard, Inc. v. Strathmore Ins. Co., 2012 U.S. Dist. LEXIS 63217 (D. Mass. May 4, 2012).
A building at the insured's storage facility was damaged when heavy rain caused a mass of soil to slide down a slope, causing soil and a retaining wall to fall on the building. The accident caused a partial collapse of the building. The insurer hired two soil engineers, each of whom concluded that a landslide caused the accident. The reports also noted, however, that a leak from the property's drainage system resulted in a very small percentage of water infiltrating the ground.
The insurer denied coverage based upon an exclusion for landslides. The insured argued water damage from leakage, which may have contributed to the accident, were a covered cause of loss. The policy's anti-concurrent causation clause stated, however, the insurer would not pay for "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." Earth movement was one of the losses that followed this provision. Water damage, however, from an accidental discharge or leakage was a covered cause of loss.
The court first determined that the building was damaged by a landslide, an excluded cause of loss under the earth movement exclusion. The insured argued that based upon the two engineering reports, water leakage was a contributing cause of the accident. Therefore, the water leakage was covered as water damage because it contributed to the landslide that led to the partial collapse of the building.
The insured's argument did not survive the anti-concurrent causation clause. The clause barred coverage for damage due to certain causes regardless of other contributing, covered causes of damage. Therefore, the earth movement exclusion applied to the damage caused by the landslide even if the damage was concurrently caused by a covered cause of loss.