Legal Memorandum: Policy's Anti-concurrent Causation Language

Issue: Under New York law, how do courts handle ‘anti-concurrent causation’ language in an insurance policy where no excluded cause of the loss is advanced?

The insurer places heavy reliance on the "anti-concurrent causation" language of the policy, but the factual dispute as to the cause of the loss renders this argument irrelevant.  By its terms, this clause applies only if an exclusionary clause applies, and there is a stark conflict in the evidence as to the cause of the loss.  The cases the insurer relies upon do not support its arguments, for in those cases the cause of loss was undisputed.  In Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 628 N.Y.S.2d 988, 990 (4th Dep’t 1995), for example, it was undisputed that earth movement caused damage when the house slid downgrade. 212 A.D.2d 16, 628 N.Y.S.2d at 990.  Similarly, in Sheehan v. State Farm Fire & Cas. Co., 239 A.D.2d 486, 658 N.Y.S.2d 61 (2d Dept. 1997), the court relied on the plaintiff’s own expert for its finding that the loss was caused by earth movement. Id., 658 N.Y.S.2d at 62.

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