SUMMARY: The concurrent cause doctrine states that if a covered and a non-covered peril contributes to a loss, then the loss is covered. Under the efficient proximate cause doctrine, loss is only covered if the event that set the loss into motion is covered under the policy. If the policy does not contain an anti-concurrent clause then the concurrent cause doctrine applies.
Sebo v. American Home Assurance Co., Inc,
208 So.3d 694 (Fla. 2016)
EFFICIENT PROXIMIATE CAUSE (EPC)
The EPC provides that where there is a concurrence of different perils, the efficient cause—the one that set the other in motion—is the cause to which the loss is attributable. Sabella v. Nat'l Union Fire Ins. Co., 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889, 892 (1963); Fire Ass'n of Phila. v. Evansville Brewing Ass'n, 73 Fla. 904, 75 So. 196 (1917).
We applied the EPC in Evansville Brewing, where the coverage at issue provided under an all-loss fire policy excluded loss caused by an explosion. We explained, “[w]hile the insurer is not liable for a loss caused by an explosion which was not produced by a preceding fire, yet if the explosion is caused by fire during its progress in the building, the fire is the proximate cause of the loss, the explosion being a mere incident of the fire, and the insurer is liable.” Evansville Brewing, 75 So. at 198. In Evansville Brewing, we contemplated a chain of events where one peril directly led to a subsequent peril. In finding that coverage existed under the policy, we drew the distinction between a covered peril setting into motion an uncovered peril and an uncovered peril setting into motion a covered peril. Coverage exists for the former but not the latter.
The EPC was explained by the California Supreme Court1 in Sabella, where it reasoned, “ ‘in determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.’ ” Sabella, 27 Cal.Rptr. 689, 377 P.2d at 895 (quoting 6 George J. Couch, Cyclopedia of Insurance Law § 1466, at 5303–04 (1930)). The California Supreme Court thus reasoned that a covered peril that convenes with an uncovered peril may still provide for coverage under a policy when the covered *698 peril triggered the events that eventually led to the loss.
CONCURRENT CAUSE DOCTRINE (CCD)
The CCD provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause. See Wallach, 527 So.2d 1386, State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123, 133 (1973).
The CCD originated with the California Supreme Court's decision in Partridge, where the court was presented with “a somewhat novel question of insurance coverage: when two negligent acts of an insured—one auto—related and the other non-auto-related—constitute concurrent causes of an accident, is the insured covered under both his homeowner's policy and his automobile liability policy, or is coverage limited to the automobile policy?” Id. 109 Cal.Rptr. 811, 514 P.2d at 124–25. The insured, Wayne Partridge, owned a .357 Magnum pistol and had filed the trigger mechanism to create “hair trigger action.” Id. 109 Cal.Rptr. 811, 514 P.2d at 125. Partridge was driving two friends, Vanida Neilson and Ray Albertson, in his insured Ford Bronco when he spotted a jack rabbit. In pursuit of the rabbit, he drove the Bronco off the road and hit a bump, causing the pistol to discharge. A bullet entered Neilson's arm, penetrated her spinal cord, and left her paralyzed. Id. Neilson filed an action against Partridge and entered into settlement discussions with State Farm. This dispute arose because the parties did not agree whether recovery was available from both the homeowner's and automobile policies. The homeowner's policy contained an exclusion for bodily injury arising out of the use of any motor vehicle. Id. 109 Cal.Rptr. 811, 514 P.2d at 126. State Farm relied on this exclusionary language to argue that only the automobile policy provided coverage for the injuries. Specifically, State Farm argued that the language of the policies was intended to be mutually exclusive and not provide for overlapping coverage. Id. 109 Cal.Rptr. 811, 514 P.2d at 128.
The California Supreme Court disagreed. First, the court noted that exclusionary clauses are more strictly construed than coverage clauses. Next, the court reasoned that an insured risk combined with an excluded risk to produce the ultimate injury and determined “that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries.” Id. 109 Cal.Rptr. 811, 514 P.2d at 130 (applying the rationale of Brooks v. Metro. Life Ins. Co., 27 Cal.2d 305, 163 P.2d 689 (1945)). Thus, because neither peril could have created the loss alone but instead combined to create the loss, the California Supreme Court could not identify the prime, moving, or efficient cause in order to determine coverage, and pronounced a new doctrine.
The CCD was first applied in Florida in Wallach, where the Third District considered the coverage available to the Rosenbergs after Wallach's sea wall collapsed and led to a portion of the Rosenbergs' sea wall crumbling. 527 So.2d 1386. The Rosenbergs filed suit against Wallach, claiming that he had breached his duty to maintain his premises. They also filed a claim under their all-risk homeowner's policy, which was denied because the policy contained an exclusion for loss resulting from earth movement or water damage. Id. at 1387. On appeal, the insurance company argued “that where concurrent causes join to produce a loss and one of the causes is a risk excluded under the policy, then no coverage is available to the insured.” Id. The Third District rejected that theory and adopted “what we think is *699 a better view—that the jury may find coverage where an insured risk constitutes a concurrent cause of the loss even where ‘the insured risk [is] not ... the prime or efficient cause of the accident.’ ” Id. at 1387 (quoting 11 Ronald A. Anderson, Couch on Insurance 2d § 44:268, at 417 (rev. ed.1982)). Further, the Third District noted that the California Supreme Court found the efficient cause language of Sabella “to be of little assistance in cases where both causes of the harm are independent of each other.” Id. at 1388 (“We agree with the California court that the efficient cause language set forth in Sabella and cited by [Phelps] offers little analytical support where it can be said that but for the joinder of two independent causes the loss would not have occurred.” (citing Partridge, 109 Cal.Rptr. 811, 514 P.2d at 130 n. 10)). Accordingly, the Third District held that “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Id. (citing Safeco Ins. Co. v. Guyton, 692 F.2d 551 (9th Cir.1982)). Wallach has continued to be applied in Florida courts until the Second District's decision in Sebo. We accepted jurisdiction based on the conflict between Wallach and Sebo.