Final version of Appleman’s anti-concurrent cause/Katrina litigation article

Here is the final version of the article appearing next month called Interpretation and Enforcement of Anti-Concurrent Policy Language in Hurricane Katrina Cases and Beyond.

Because this is an exception to the Lexis policy of not allowing stuff to be seen until it actually is published by them, I agreed to post the following copyright notice.  Below is also some information on how you can sign up for an Appleman’s teleconference where I am going to talk about this article, as well as some of the later developments that aren’t covered as extensively in the article,  like the Fifth Circuit’s recent Katrina decisions.  

Copyright © Matthew Bender & Company, Inc., a member of the LexisNexis Group.  Republished with permission from New Appleman on Insurance: Current Critical Issues in Insurance Law.  All rights reserved.

This article is also the subject of a New Appleman’s™ Insurance Coverage Teleconference: The Impact of Mass Catastrophies on Insurance Coverage to be held on October 16.  Click here for information on how to attend.

2 Comments

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2 Responses to Final version of Appleman’s anti-concurrent cause/Katrina litigation article

  1. James P. Reilly

    David-
    I realize it’s late to raise a question, BUT just for the sake of my personal clarification, I bring your attention to P. 37 of the Appleman document. You quote Bob Hunter, indenting the paragraph and using smaller type.
    The article then returns to full margins and full sized type (leading me to conclude that it is you speaking again).
    You state “In many instances, anti-concurrent language would in fact negate coverage for a fire that broke out as a result of an earthquake, except…”
    I realize that ‘many’ is an imprecise term, but have trouble accepting the concept that the ACC ‘erases’ coverage previously granted. I have beaten this horse to death on Sam Friedman’s blog, but would be interested in pursuing your thoughts on this further.
    P.S. I have become a recent adherent to the Rossmiller Doctrine that the ACC is not appplicable to most of these claims anyway, but the dissection of the ACC will just not go away.
    P.P.S. The English language has taken many last names and turned them into verbs (Bowdlerized, Fisked, Bogarted, etc.) In that vein, shall we call ‘the continued championing of a specious point of view, in total disregard of the facts’ “Huntering”? (Such as he Huntered the ACC”.)

  2. You read the passage correctly. According to anti-concurrent cause language, if given damage would not have occurred but for the existence of an excluded cause, it is not covered. That is, if the excluded cause is a necessary part of the causal chain that led to particular damage, that damage is not covered. So if an excluded cause (earthquake) produces a covered cause (fire), it is not covered. If this were not true, policies would not have the exception for fire in the earth movement exclusion — it would not be necessary to specifiy fire as an exception to the anti-concurrent language if it did not fall within the anti-concurrent language.
    I think if one looks at the actual litigation and the policies, it becomes fairly obvious that very few Katrina cases involved concurrent damage. I realize this is difficult for many to accept, witness the Fifth Circuit’s Leonard decision. Glad to see you signed up for this view, it is the correct one and over time it will prevail.
    “Huntered” might be a good verb. That letter was remarkable for being comletely wrong in almost every particular. Sometimes I wonder if things like that are merely fundraisers — you know, meat for the animals — and the authors either know they are wrong or don’t care whether they are right or wrong and just put down whatever comes into their head on the first draft. I’d hate to think something like the letter was the result of a serious attempt at intellectual effort. That would be sad if that were the best he could do.