Anti-concurrent cause language is one of my favorite areas of insurance coverage, one I will talk about at any time and one I have put a lot of work into mastering. It might be the kind of thing that annoys others, like someone who insists on playing the Pan flute for everyone because he has spent so much time practicing, but there you have it.
The LexisNexis Insurance Law Center is offering, through the end of this week, I think, a free download of the anti-concurrent cause article I wrote for New Appleman: Critical Issues last October. Here’s the link, where you will be greeted by a video of a guy with a snake tattooed on his face, screaming "100 percent off list price this week. How can I afford to give this stuff away? I can’t, but I’m Crazy Larry, the guy with the snake on his face. For a limited time only. Come on down and get it before they take me away." Just kidding. I don’t think Lexis has the video ready yet, it’s still being shot.
UPDATE: I wasn’t going to mention this because doing so seems to smack of self-promotion, but the person who sent me the opinion wants me to, and the LexisNexis folks who published the article want me to, so here it is.
In this opinion from Dickinson v. Nationwide, a Katrina case in the Southern District of Mississippi, on Friday Judge Senter favorably cited the anti-concurrent cause analysis of the New Appleman: Critical Issues article above, in deciding that an anti-concurrent cause provision did not apply to the facts because the wind and water damage were separate losses caused by separate, single forces. Anti-concurrent cause language is relevant only where multiple forces cause the exact same loss, and where those forces meet the criteria of acting concurrently or sequentially within the strict meaning of those terms of art. Anything else is merely single-force damage. In the opinion, Judge Senter declined to give a broad interpretation to the Fifth Circuit’s decision on anti-concurrent cause in the Leonard case. Incidentally, I have another Critical Issues article coming out sometime this month. It is called Katrina in the Fifth Dimension, and it is about Katrina cases before the Fifth Circuit. I spent by far the most time looking at the Leonard case, finding some fault, OK, a lot of fault, with the Fifth Circuit’s anti-concurrent cause analysis.
One of the policyholder lawyers in Louisiana also told me the analysis in the October article was cited and used in a Katrina case in the Western District of Missouri late last year. I looked it up, and it’s true: Maxus Realty Trust, Inc. v. RSUI Indem. Co., 2007 U.S. Dist. LEXIS 92417 at *6. Here’s a pdf of the opinion. I note in this case that the judge, Ortrie Smith, sidestepped the Leonard case and relied instead on more moderate language in the Fifth Circuit’s Tuepker decision. Leonard was just too loose with terminology, too fuzzy in its analysis, and it went off the rails. I wouldn’t mind the case half so much if it wasn’t so cocky about being wrong.
Making the article available for a free download is just coincidence, has nothing to do with either of these opinions. Lexis just decided to do it as part of their Catastrophe Month on the Insurance Law Center. I heard they were going to do it before I heard about Judge Senter’s ruling. If you haven’t visited the ILC, you should, there is a lot of good insurance stuff there, and the writing is more and more veering sharply away from the nauseatingly dull and pompous prose that has for so long enslaved legal writers. I’ve said it before, so you know what I say — you have nothing to lose but your chains. Choose freedom and it will be yours.