Property Insurance Law
Catherine A. Cooke
Robbins, Salomon & Patt, Ltd., Chicago
Illinois Appellate Court Addresses Anticoncurrent-Causation Clauses
for First Time
When major or catastrophic property damage occurs, it is not uncommon for there to be one or more contributing
factors to the loss. It is not difficult to imagine the scenario where a home is damaged during a storm involving high
winds causing tree damage, sparking electric lines which cause power outages, sump pump failure, and subsequent
flooding. Recognizing that it is often difficult to identify the “starting point” of the loss, most standard insurance policies
now include anticoncurrent-causation clauses. When an anticoncurrent-causation clause applies to the facts underlying
an insurance claim, insurers can deny coverage if even one contributing cause is an excluded event under the policy.
Bozek v. Erie Ins. Grp., 2015 IL App (2d) 150155, ¶ 23.
While treatment of these clauses varies by state, until recently Illinois appellate courts had yet to weigh in on the
topic. However, in Bozek v. Erie Insurance Group, the Illinois Appellate Court Second District, in a case of first
impression in Illinois, upheld the application of the anticoncurrent-causation clause in the homeowner’s insurance policy
at issue. Bozek, 2015 IL App (2d) 150155, ¶ 4.
Underlying Facts
After a rain storm, the Bozeks’ in-ground swimming pool sustained damage. Id. ¶ 6. The Bozeks’ homeowner’s
insurance policy provided $89,000 of coverage for the swimming pool. Id. After reporting the claim, the plaintiffs’
insurance company, Erie, retained a third party to investigate the loss. Id. The subsequent investigative report reached
several conclusions about the incident, including that on June 27, 2013, the pool “heaved out of the ground” and that
according to unofficial weather records, it rained approximately 3.5 inches in the five days prior to the event, which was
nearly the average for the entire typical month of July. Id. ¶ 7. According to the report, the amount of rain that fell “can
result in saturated soils that produce significant uplift hydrostatic pressures.” Id. The report also noted that for the pool
to remain in place the weight of the water in the pool must exceed the “uplift forces” of the water pressure in the soil. Id.
However, on the date of loss, the Bozeks’ pool had been emptied to clean debris which made it susceptible to uplift. Id.
In-ground pools use pressure relief valves to prevent uplift in the event that a pool is emptied, which allow ground
water to enter into the pool to counterbalance the uplift of the ground hydrostatic pressure. Id. The report concluded that
the damage was caused by ground water pressure pushing the pool upward because the pressure value failed to function
properly. Id. The damage required the pool to be replaced in its entirety and the “heaving” also caused damage to the
concrete slab around the pool which also would require replacement. Id.
Erie denied coverage because the cause(s) of distress were excluded under the policy terms. The pertinent portions
of the policy stated:
IDC Quarterly Volume 26, Number 3 (26.3.36) | Page 1
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 26,
Number 3. © 2016. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.
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:
***
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.
***
5. *** by
***
(b) mechanical breakdown, deterioration, wear and tear, marring, inherent vice, latent defect, tree roots, rust,
smog, wet or dry rot, mold, fungus, or spores;
***
9. by water damage, meaning:
***
(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.
Id. ¶ 8.
(emphasis in original).
The introductory sentence of the exclusion section quoted above is what is known as an anticoncurrent-causation
clause. After coverage was denied, the Bozeks filed a complaint for declaratory judgment alleging that Erie improperly
denied coverage. Id. ¶ 9. While they conceded that hydrostatic pressure was an excluded cause under section 3 or 9 of
the exclusions, they argued that Erie did not establish that failure of the pressure-relief vavle was an excluded cause. Id.
Specifically, they argued that that the failure of the vavle did not qualify as an excluded “mechanical breakdown.” Id.
The Bozeks argued that “the anticoncurrent-causation clause dictated that, because the failure of the pressure-relief valve,
a covered event, preceded the increase in hydrostatic pressure, an excluded event, the loss should be covered.” Id.
In support of this position, the Bozeks pointed to the use of “in sequence” and asserted that a reasonable definition
of this phrase was “subsequent to.” Id. ¶ 10. Under their interpretation, the anticoncurrent-causation clause meant that if
a covered cause happened subsequent to an excluded cause, there would be no coverage. Id. However, because the alleged
covered cause (the failure of the pressure-relief valve) happened prior to the excluded cause (the hydrostatic pressure),
the anticoncurrent-causation clause did not apply. Id. They concluded that because there was not an applicable
anticoncurrent-causation clause, Erie could not deny coverage for the loss associated with the covered failure of the valve,
simply because an excluded cause occurred afterwards. Id.
On its cross-motion for summary judgment, Erie asserted that even if the court accepted the Bozeks’ argument that
the pressure-relief valve failure was covered, the anticoncurrent-causation clause precluded coverage. Id. ¶ 11. Erie
IDC Quarterly Volume 26, Number 3 (26.3.36) | Page 2
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 26,
Number 3. © 2016. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.
argued that the langue “in sequence” simply meant “one after another,” but because the policy did not specify which
cause must come first or after the other, any sequence of events involving an excluded cause would preclude coverage.
Id. The policy language which uses “concurrently” and “in sequence” means that coverage is avoided whether two events
occur at the same time or one after another–and so long as an excluded cause is involved, there is no insurance coverage.
Id.
After analyzing numerous cases addressing insurance policies with anticoncurrent-causation clauses and the
particular language employed, the trial court granted summary judgment in favor of Erie. Id. ¶ 15. In doing so, the court
accepted Erie’s proffered reading of the clause that any sequence of events involving an excluded cause precluded
coverage. Id. Because there was no question that hydrostatic pressure was an excluded cause, there could be no insurance
coverage. Id.
Issues and Applicable Standards on Appeal
The Bozeks appealed the trial court’s ruling, raising two issues: (1) whether the pressure-relief failure was a
covered cause; and (2) whether the anticoncurrent-causation clause precluded coverage. Id. ¶ 18. In order to prevail,
the Bozeks needed to establish both that Erie did not meet its burden to show that the failure of the pressure-relief
valve was an excluded mechanical breakdown, making it a covered event, and also that, because the covered event
happened first, the anticoncurrent-causation clause did not apply to divest them of coverage. Id. Erie, on the other
hand, only had to prevail on one of these issues to show that insurance coverage should be denied as a matter of law.
Id.
Turning to the oft-cited standards, the court noted its primary objective in construing contracts—including insurance
policies—is to ascertain and give effect to the intentions of the parties as expressed in the agreement. Pekin Ins. Co. v.
Precision Dose, Inc., 2012 IL App (2d) 110195, ¶ 31. When policy terms are clear and unambiguous, they are to be given
their plain and ordinary meanings. Am. States Ins. Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). Simply because parties
disagree on the interpretation of a contract does not mean it is ambiguous and the court noted that it would not strain to
find an ambiguity where none exists. Bozek, 2015 IL App (2d) 150155, ¶ 19; U.S. Fire Ins. Co. v. Hartford Ins. Co., 312
Ill. App. 3d 153. 155 (1st Dist. 2000).
The court emphasized that provisions that limit or exclude coverage are interpreted more liberally in favor of the
insured and “[t]he test is not what the insurer intended its words to mean, but what a reasonable person in the insured’s
position would understand them to mean.” Bozek, 2015 IL App (2d) 150155, ¶ 20 (citing Ins. Co. of Illinois v.
Markogiannakis, 188 Ill. App. 3d 643, 655 (1st Dist. 1989)). Therefore, when an insurer relies on an exclusionary
provision, it must be clear and free from doubt that it prevents coverage. Cincinnati Ins. Co. v. Am. Hardware Mfrs.
Ass’n, 387 Ill. App. 3d 85, 108 (1st Dist. 1008).
History of Anticoncurrent-Causation Clauses
The appellate court discussed the origin of anticoncurrent-causation clauses, noting that insurance companies began
using them in policies in response to concurrent-causation controversies—or incidents in which more than one cause,
one covered and one excluded, contributes to a loss. Bozek, 2015 IL App (2d) 150155, ¶ 21. Many cases have sought to
IDC Quarterly Volume 26, Number 3 (26.3.36) | Page 3
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 26,
Number 3. © 2016. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.
determine exactly how substantial a given “casual nexus” needs to be in order to provide coverage in the absence of
specific language, and four types of tests have developed. Id.
Illinois appears to favor the “middle-ground, efficient-or-dominant-proximate-cause rule” in the absence of contrary
policy language. Id. ¶ 23; see, e.g., Am. Econ. Ins. Co. v. Holabird & Root, 382 Ill. App. 3d 1017, 1035 (1st Dist. 2008).
However, policies may themselves determine the requisite casual nexus, which may be more narrowly construed. “The
purpose of anticoncurrent-causation clauses is to avoid application of the general rule that there is coverage so long as
the efficient or dominant cause is covered.” Bozek, 2015 IL App (2d) 150155, ¶ 23. When an anticoncurrent-causation
clause is applied, there is no coverage if any one of the contributing causes is an excluded event. Id.
The Insurance Services Office, an advisory organization, set forth an example of a standard anticoncurrent-causation
clause in its 1990 homeowners’ property insurance form: “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.” Id. ¶ 23 (emphasis added and internal citations omitted).
Plaintiffs’ Arguments on Appeal
The Bozeks argued that the clause in their policy omitted the word “any,” thus changing the meaning of the applicable
clause. Id. ¶ 24. For sake of comparison, again, the Bozeks’ clause stated: “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.” Id. (emphasis added). The appellate court found that the Bozeks’ focus on the phrase “in sequence” was misplaced.
Id. ¶ 25. Erie’s arguments further exacerbated the misunderstanding by focusing on the use of “concurrently” and stating
that the two events, one covered and one excluded, occur at the same time or one after another.
The court stated that the use of the words “concurrently” and “in sequence” avoids coverage where two events, one
covered and one excluded, contribute to the loss at the same time or one after the other. Id. Further analyzing the use of
the words “concurrently” and “in sequence” in the clause, the court concluded that the relevant point in time is not when
the valve failed, but rather, when the failed valve contributed to the loss. The failed valve and the hydrostatic pressure
contributed concurrently to the loss. Id. ¶ 26.
The court then distinguished two cases relied upon by the Bozeks, both involving wind and flood damage from
Hurricane Katrina. Id. ¶ 27. In both cases, wind damage was covered, but flood damage excluded. Id. ¶¶ 28, 33. However, in those cases, there was evidence that wind damage caused separate damage apart from the flood damage sustained,
and the anticoncurrent-causation clauses at issue entitled the insured to compensation for the wind damage occurring
prior to the flood damage, but precluded coverage for the subsequent flood damage. Id. ¶¶ 32-33.
The appellate court concluded that the covered event in the Bozeks’ situation did not lead to a separate or different
loss. Id. ¶ 34. While the Bozeks contended that they were entitled to coverage for the failed pressure-release valve because
coverage “vested” at that time, such an interpretation would lead to an untenable result because the failed valve alone did
not cause any loss until it converged with the excluded event–the hydrostatic pressure which uplifted the pool and caused
the damage to the pool and surrounding concrete. Id. Therefore, because the two causes contributed concurrently to the
loss, the anticoncurrent-causation clause precluded coverage. Id.
The court left the issue open for other courts to decide whether the use of the phrase “in sequence” instead of “in any
sequence” would alter the result under different fact scenarios. Id. ¶ 35. However, the court noted that the Bozeks’
preferred interpretation would effectively be a restatement of the efficient-proximate-cause rule, which anticoncurrentIDC Quarterly Volume 26, Number 3 (26.3.36) | Page 4
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 26,
Number 3. © 2016. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.
causation clauses are written to avoid. Id. Lastly, the Bozeks attempted to argue that anticoncurrent-causation clauses
should be held unenforceable as against public policy. The appellate court determined that the argument had been
forfeited due to insufficient briefing and the court would not take the complex issue up sua sponte. Id. ¶ 37.
Concluding Remarks and Takeaways
In closing, the appellate court explicitly stated that it was publishing its decision due to the lack of other reported
decisions in Illinois, and noted that it intended a narrow application of the decision and left many issues undecided. Id. ¶
38. While the court urged a narrow application of the decision, the ruling upholding application of the anticoncurrentcausation clause at issue is favorable to the insurance industry. Though the appellate court did not fully analyze the public
policy attack, it did note that the majority of jurisdictions have rejected such challenges. Id. ¶ 37. The case demonstrates
that the placement, use, or omission of even one word—in this case, “any”—potentially leads to different interpretations
and outcomes. However, as the first-published decision in Illinois on anticoncurrent-causation clauses, the precedent is
a positive one for the insurance defense bar.
About the Author
Catherine A. Cooke is a shareholder at Robbins, Salomon & Patt, Ltd. and concentrates her practice in the area of
commercial litigation and creditors’ rights. She earned her undergraduate degree from Indiana University–Bloomington
in 2003, and law degree from The John Marshall Law School in 2006, where she served as Administrative Editor of The
John Marshall Law Review. She is licensed to practice law in both Illinois and Indiana.
About the IDC
The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who
devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other
individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org or contact
us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, [email protected].
IDC Quarterly Volume 26, Number 3 (26.3.36) | Page 5
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 26,
Number 3. © 2016. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.