Relying upon the policy's anti-concurrent causation clause, the Illinois Court of Appeals affirmed the trial court's ruling that there was no coverage for a pool that popped out of the ground. Bozek v. Erie Ins. Group, 2015 Ill. App. LEXIS 940 (Ill. Ct. App. Dec. 17, 2015).
Following a rainstorm, the insureds reported damage to the swimming pool to Erie. An investigation determined that the heavy rain saturated soils around the pool. This created a significant uplift hydrostatic pressure. The weight of the water in the pool typically prevented the uplift forces, but the pool had been emptied to clean debris making it susceptible to uplift. The pool had a pressure relief valve to prevent uplift, but it was not working properly.
As a result, the pool was damaged to the point that it had to be replaced in its entirety. The heaving of the pool also damaged the concrete slab around the pool, which also had to be replaced.
The policy from Erie had an anti-concurrent causation clause in the exclusion section of the policy. The policy provided,
We do not pay for loss resulting directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss . . . .
The policy excluded: (1) loss by weight of water to a deck, swimming pool, and foundation; (2) loss by mechanical breakdown; (3) loss by water damage, including water that exerted pressure on swimming pool or decks.
The insureds filed suit. They conceded that hydrostatic pressure was an excluded cause. However, they argued that Erie did not establish that the failure of the pressure-relief valve was an excluded cause. They reasoned that the anti-concurrent causation clause dictated that, because the failure of the pressure-relief valve (a covered event) preceded the increase in the hydrostatic pressure (an excluded event) the loss was covered. To support their position, the insureds pointed to the anti-concurrent causation clause's use of the phrase, "in sequence." A reasonable definition of "in sequence" was "subsequent to." Because the covered cause (the failure of the pressure-relief valve) happened prior to the excluded cause (the hydrostatic pressure) the anti-concurrent causation clause did not apply.
Erie argued that the use of the words "concurrently" and "in sequence" precluded coverage where two events occurred at the same time or one after the other. Where an excluded cause was a cause, there was no coverage.
The trial court granted summary judgment to Erie and an appeal was filed.
The appellate court faulted the insureds for focusing on the phrase "in sequence." Instead, the use of the words "concurrently" and "in sequence" avoided coverage where two events, one covered and one excluded, contributed to the loss at the same time or one after the other. When two perils converged at the some time, contemporaneously and operating in conjunction, there was a "concurrent" cause or event.
The uplifting of the pool and damage to the concrete did not occur until the hydrostatic pressure acted upon the sides of the pool. The uplift of the pool resulted from the convergence of two causes, the hydrostatic pressure and the valve's failure to relieve that pressure. The two causes "contributed concurrently" to the loss. Therefore, the anti-concurrent causation clause precluded coverage.
