Which Came First? Turns Out, It May Not Matter. Illinois Appeals Court Weighs in on Anticoncurrent-Causation Clause for the First Time
For the first time, an Illinois court addressed an anti-concurrent causation clause. In Bozek v. Erie Ins., 2015 IL App.(2d) 150155 (Dec. 17, 2015) , an Illinois appellate court held a homeowner’s insurance policy’s anti-concurrent causation clause precluded coverage because an excluded event, hydrostatic pressure, contributed to a single loss (the lifting of a pool out of the ground). The plaintiffs incurred damage to their in-ground swimming pool after a heavy rain storm. The large amount of rain saturated the soil, producing significant uplift hydrostatic pressures and the pool’s pressure relief valve failed to prevent the lift.
The homeowner’s insurance policy contained an anticoncurrent-causation clause, which read: “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.” The policy specifically listed hydrostatic pressure as an excluded cause. Based on this exclusion, the insurer denied coverage. The homeowners argued that the policyholder improperly applied the anticoncurrent-causation clause. They claimed “in sequence” to mean “subsequent to.” Therefore, because the failure of the pressure-relief valve occurred prior to the hydrostatic pressure, the anticoncurrent-causation clause did not apply.
The court did not consider the valve’s failure as the starting point of the loss. They looked at the point in time that the failed valve contributed to the loss – which was, per the court, at the time the pool lifted. Accordingly, it found the failed valve and the hydrostatic pressure contributed concurrently to the loss, not in sequence. The court also took pains to state its opinion was to be narrowly applied and left open the question of the meaning of “in sequence” as applied to an anti-concurrent causation clause. Although the court took pains to state the intended narrow application of its holding, given that it is the first published opinion in Illinois on the topic it is likely other courts will look to the Bozek decision for guidance.