Michele A. Russell, Associate Attorney – West Palm Beach, West Office

The Third District Court of Appeal recently held in Sec. First Ins. Co. V. Czelusniak, that the trial court erred in directing the verdict in favor of the insured by applying the concurrent cause doctrine where the all-risk policy included an anti-concurrent causation provision.

The insured’s residence had interior damage and mold after water entered through the wall, windows, and doors.  The insurance policy explicitly excluded water that entered through walls and windows but did not explicitly exclude water that entered through the door.  In its reasoning, the appellate court noted an all-risk policy was at issue and as such, the insured was only required to prove damage had occurred during the policy period.  The burden then shifted to the insurer to prove an exclusion applied to bar coverage otherwise, coverage would be found for the claim.

The trial court in Czelusniak found that in addition to the converging causes for the loss, it was undisputed that the property had sustained damage, even if it was over a period of time during the policy effective period.  The trial court then concluded the jury could not distinguish between the separate causes and directed verdict in favor of the insured.

In reversing the trial court’s decision, the appellate court acknowledged the concurrent-cause doctrine generally applies when independent perils converge so that no single cause can be considered the sole or proximate cause of a loss.  However, where the all-risk policy includes an anti-concurrent cause provision that specifically avoids application of that doctrine, then the plain language of the policy will preclude recovery by the insured.

This decision reinforces the Supreme Court’s opinion in Sebo v. American Home Assurance Co., Inc., and negates the concern that application of the concurrent causation doctrine will serve to nullify exclusions in the policy. 208 So.3d 694 (Fla. 2016).