Anticoncurrent Causation Clauses in Illinois

With freezing temperatures and blizzards sweeping a good part of the country, I thought I would blog on a case about a swimming pool, giving us a subtle reminder that winter is temporary and spring is on its way. It also provides guidance on the status of anticoncurrent causation clauses in Illinois insurance policies.

Plaintiffs owned a home with an in-ground pool that was damaged in a rain storm.¹ The storm produced a great amount of rain which saturated the soil and produced significant uplift hydrostatic pressures. These pressures are usually counterbalanced by pressure relief valves in the pool. The pool was empty because it was being cleaned and the pool valve failed, causing ground water pressure to push the pool upward, damaging it and the surrounding concrete slab beyond repair. The insurance company denied the claim, saying it was excluded due to the following policy language (the anticoncurrent causation clause):

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:
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3. by freezing, thawing, pressure or weight of water or ice, whether driven by wind or not, to a fence, pavement, patio, deck, swimming pool, foundation, retaining wall, bulkhead, pier, wharf, or dock.
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5. *** by
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(b) mechanical breakdown, deterioration, wear and tear, marring, inherent vice, latent defect, tree roots, rust, smog, wet or dry rot, mold, fungus or spores;
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9. by water damage, meaning:
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(c) water below the surface on the ground. This includes water which exerts pressure on, or flows seeps or leaks through any part of a building or other structure, including sidewalks, driveways, foundations, pavements, patios, swimming pools or decks.

(Emphasis added)

The emphasized first sentence is an anticoncurrent causation clause. The parties filed cross motions, arguing about the meaning of ‘in sequence.’ Plaintiff argued that it meant ‘subsequent to’ while the insurance company argued that it meant ‘one after the other.’

Concurrent causation issues arise when more than one cause contributes to a loss—some causes being covered and others excluded.² The majority of jurisdictions follow the efficient or dominant proximate cause rule, while a minority favor the but/for causation rule.³ Absent policy language, Illinois follows the efficient or dominant proximate cause rule.⁴ When companies include anticoncurrent causation clauses in the policy, it is to avoid the concept that there is coverage if the dominant cause of the loss is covered.⁵

In 1990, the Insurance Services Office included an example of a standard anticoncurrent causation clause in a homeowner property insurance form, as follows:⁶

We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.

In the instant case, the court determined that you don’t look to the point in time when the pool valve failed, rather you look to the point in time the failed valve contributed to the loss. The court found that that the valve failed at the same time the hydrostatic pressure lifted the pool. This pressure converged with the pool valve failure and contributed concurrently to the loss. The court found that the anticoncurrent-causation clause excluded coverage.

This recent case is the first in Illinois to address anticoncurrent causation clauses. The court acknowledged there were many issues this ruling did not decide, such as whether dominant proximate cause is applied absent policy language, whether ‘in sequence’ versus ‘in any sequence’ changes the clause, or whether public policy trumps the anticoncurrent causation clause. These matters were left to be argued by other parties and ruled upon by other courts.

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¹ Bozek v. Erie Insurance Group, 2015 Il.App.(2d) 150155, — N.E.3d — (Ill. App. Dec. 17, 2015).
² See, Peter Nash Swisher, Causation Requirements in Tort and Insurance Law Practice: Demystifying some Legal Causation Riddles, 43 Tort Trial & Ins. Prac. L.J. 1 (Fall 2007), pp. 1-34.
³ Id. at 23-24; South Carolina Farm Bureau Mut. Ins. Co. v. Durham, 671 S.E.2d 610, 613 (S.C. 2009).
⁴ American Economy Ins. Co. v. Holabird & Root, 382 Ill.App.3d 1017, 1035 (2008).
⁵ Swisher at 27-28.
⁶ Quoting Insurance Services Office, Homeowners Policy, Broad Form (HO 00 03 04 91) (1990). Comparing the above ISO language with the policy at issue, there is one word that is different: the ISO language inserts ‘any’ prior to ‘sequence to the loss.’ This court did not rule on what effect, if any, that has on the clause.