Is anti-concurrent cause language ‘unethical’?

I saw this question discussed at a recent post on Sam Friedman’s blog at National Underwriter.  Plenty of comment by readers, both pro and con.  You might be able to predict what I think.  The question itself arises from a misconception of what anti-concurrent cause language is and what it addresses — in other words, I don’t believe the question makes sense.  Is the notion of exclusions in insurance policies unethical?  Is the notion of covering collapse but defining collapse extremely narrowly, and excluding many causes of collapse, unethical?  Is it unethical to define a policy’s coverage as excess to any other available insurance? Is it unethical to define ongoing property damage as uncovered if any part of it began before the policy period commenced?  Is it unethical to define an intentional act as one that is expected and intended by any insured, meaning one who did not intend the harm is excluded from coverage along with the one who did?  Answer all these questions, and then we can have a debate about the ethics of anti-concurrent cause language.  

As the above questions make plain, insurance policies contain all kinds of provisions that normal people don’t expect or think about.  So do other contracts.  You ever gone on a cruise?  Chances are your ticket contract contained a forum selection clause stating you have to sue in Florida if you have a beef with the cruise line.  Does the average person have a clue about choice-of-law provisions in contracts or their significance?  How many investors anticipate that they will have to engage in NASD arbitration instead of going to court? 

The issue is not one of ethics, but public policy.  If a contractual provision is not against public policy, there is nothing wrong with including it in the contract.  Anti-concurrent cause language merely defines the causation analysis that must be used by the court.   Other potential choices for causation analysis, such as efficient proximate cause or concurrent cause analysis, were neither carved into stone tablets by God, nor have courts found the specific type of causation methodology used in property insurance causation to be a mandatory contract rule, or in other words, a matter of public policy. 

To all who would say anti-concurrent cause language is unethical, answer these questions. Why is the efficient proximate cause methodology of defining the cause of a property loss superior analytically to the methodology contained in anti-concurrent cause clauses?   What endows efficient proximate cause with greater moral stature than anti-concurrent cause methodology? For property insurance contracts with no defined method of analyzing property loss causation, is it ethical not to reveal to the consumer that the default method will be efficient proximate cause?  Come on, I don’t really need to go on, do I?  You can see the whole ethics argument can be shredded like cheesecloth without even breaking a sweat.  Who can answer these questions, and having answered them, will anyone then argue to me that anti-concurrent cause language is unethical?  

 

2 Comments

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2 Responses to Is anti-concurrent cause language ‘unethical’?

  1. Erin

    At the risk of sounding dumb: for those of us who are not trained in insurance claims handling or insurance law, could you please define again what anti-concurrent causation (and therefore concurrent causation and possibly also efficient proximate causation) actually means? Thank you… every time I think I understand it, I get confused again.

  2. Erin, anti-concurrent cause language is included as a lead-in before certain exclusions in property insurance policies and is intended to define the method used to analyze the cause of property loss. I have also seen anti-concurrent language used in liability policies, although using it in this way raises questions of ambiguity because liability causation inherently is one of concurrent causation, because tortious activity is analyzed with considerations of more than one legally significant cause. Usually, property insurance loss has been analyzed using only one legally significant cause.
    Anti-concurrent cause langugage occurs in various forms, but basically it states that the existence of a covered cause of loss cannot serve to make uncovered damage covered. For example, when a covered lightning strike causes an uncovered mudslide, anti-concurrent cause language says that the resulting loss cannot be covered merely because a covered cause set the uncovered cause in motion. There can be a dispute about whether this language also prevents the loss from being covered when an uncovered cause leads to a covered cause of loss: for example, an earthquake starts a fire. Some will say that whereever the uncovered cause of loss is a but for cause of the eventual loss — in other words, where the uncovered cause itself may not have caused any damage at all but instead set in motion the covered cause — that the resulting loss is uncovered.
    You can read more about this in my Appleman’s article, it’s been posted here on my blog. Thanks for the question.