One more quick thought about In Re Katrina Canal Breaches Litigation as we head into the weekend. As I’ve indicated in previous posts and as is borne out by the Fifth Circuit’s decision, the methodology selected for analysis of causal connections in property insurance in a great many instances determines the outcome. This is the reason insurers came up with anti-concurrent, anti-sequential cause language in the first place: it is altogether too easy for judges to circumvent contractual drafting intent by selecting a causal analysis that will ordain a different outcome, endowing a result that is in fact the product of human bias with the aura of scientific inevitability. (I do not necessarily impute malice or even conscious intent to this process, I merely recognize that this is a human tendency and will remain one as long as human beings are the way they are).
For example, even though the "efficient proximate cause" methodology is purportedly bias neutral and selects between multiple causes of single damage as to which is the dominant cause of loss, it doesn’t require a lot of imagination to see that the act of selection is one that can, in certain hands, be manipulated to gain a desired result. Even the act of selecting which "causes" are to be included in the analysis is subject to the same human tendencies of selection bias. If you look to the case law, you will see that I am right. Insurers — there are exceptions — therefore sought to overturn efficient proximate cause as well as other doctrinal methodologies, such as concurrent causation analysis, with anti-concurrent, anti-sequential cause language: the first, of course, contractually overcomes concurrent cause analysis, the second efficient proximate cause. If anyone wants to talk further about these points, I am glad to do so: just drop me an e-mail at firstname.lastname@example.org or call me at 503-961-6338.