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21 ANTI-CONCURRENT CAUSATION CLAUSES IN INSURANCE CONTRACTS: THE STATE OF THE LAW IN 2017 Joshua T. Carback* Few aspects of insurance law are more provocative than the anti-con- current causation clauses (“ACCs”). In circumstances where an insured suffers a loss concurrently caused by both covered and uncovered perils, an ACC bars recovery.1 If ACCs are unenforceable in the jurisdiction, however, the insured can recover.2 Insurers benefit from ACCs to the det- riment of insureds because their coverage obligations are significantly re- duced in scenarios involving concurrently caused losses. Some support ACCs as an acceptable exercise of the freedom to contract, while others deem them a repulsive manifestation of the power asymmetry between insurers and insureds in drafting policies. This Essay assesses the state of the law with respect to the enforceability of ACCs. Part I provides an overview of insurance causation concepts.3 Part II surveys the state of the law.4 Part III explores the normative dimensions of the debate over ACC enforceability.5 Part IV concludes.6 *I thank Jerri Shahverdi, Editorial Assistant of the Maryland Law Review, for her technical assistance with this work. This Essay received third place in the 2017 Paul G. Cordish Memorial Insurance Law Writing Competition. The views expressed in this Essay are strictly those of the author. © Transactions: The Tennessee Journal of Business Law. This essay was revised for citation and style on Feb. 25, 2019. 1 Dale Joseph Gilsinger, Annotation, Validity, Construction, and Application of Anticoncur- rent Causation (ACC) Clauses in Insurance Policies, 37 A.L.R. 6th 657 (2008). 2 Id. 3See infra Part I. 4 See infra Part II. 5 See infra Part III. 6 See infra Part IV. TRANSACTIONS: THE TENNESSEE JOURNAL OF BUSINESS LAW [Vol. 19 22 I. AN OVERVIEW OF CAUSATION IN INSURANCE LAW There are three essential questions in any legal inquiry as to whether an insured’s loss is covered by their policy.7 First, “[h]ow did the loss hap- pen?”8 Second, “[i]f multiple forms of insurance are in effect, which if any cover the loss?”9 Third, “[i]f there is more than one cause of the loss, is there any coverage?”10 ACC enforceability is a legal issue often implicated in answering the third question. This Part offers a preliminary overview of causation concepts in insurance law that are critical to unpacking the ACC enforceability issue. Section A of this Part defines important insurance law terminology.11 Section B outlines the form and function of ACCs in insur- ance contracts.12 A. Insurance Contract Terminology Randall L. Smith and Fred A. Simpson’s Causation in Insurance Law provides a helpful guide to insurance law terminology.13 First, a “peril” is an “active physical force that brings about a loss.”14 “Named-Perils Polic[ies]” are policies that cover listed perils, w.
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21 ANTI-CONCURRENT CAUSATION CLAUSES IN INSURANCE CONTRACTS: THE STATE OF THE LAW IN 2017 Joshua T. Carback* Few aspects of insurance law are more provocative than the anti-con- current causation clauses (“ACCs”). In circumstances where an insured suffers a loss concurrently caused by both covered and uncovered perils, an ACC bars recovery.1 If ACCs are unenforceable in the jurisdiction, however, the insured can recover.2 Insurers benefit from ACCs to the det- riment of insureds because their coverage obligations are significantly re- duced in scenarios involving concurrently caused losses. Some support ACCs as an acceptable exercise of the freedom to contract, while others deem them a repulsive manifestation of the power asymmetry between insurers and insureds in drafting policies. This Essay assesses the state of the law with respect to the enforceability of ACCs. Part I provides an overview of insurance causation concepts.3 Part II surveys the state of the law.4 Part III explores the normative dimensions of the debate over ACC enforceability.5 Part IV concludes.6 *I thank Jerri Shahverdi, Editorial Assistant of the Maryland Law Review, for her technical assistance with this work. This Essay received third place in the 2017 Paul G. Cordish Memorial Insurance Law Writing Competition. The views expressed in this Essay are strictly those of the author. © Transactions: The Tennessee Journal of Business Law. This essay was revised for citation and style on Feb. 25, 2019. 1 Dale Joseph Gilsinger, Annotation, Validity, Construction, and Application of Anticoncur- rent Causation (ACC) Clauses in Insurance Policies, 37 A.L.R. 6th 657 (2008). 2 Id. 3See infra Part I. 4 See infra Part II. 5 See infra Part III. 6 See infra Part IV. TRANSACTIONS: THE TENNESSEE JOURNAL OF BUSINESS LAW [Vol. 19 22 I. AN OVERVIEW OF CAUSATION IN INSURANCE LAW There are three essential questions in any legal inquiry as to whether an insured’s loss is covered by their policy.7 First, “[h]ow did the loss hap- pen?”8 Second, “[i]f multiple forms of insurance are in effect, which if any cover the loss?”9 Third, “[i]f there is more than one cause of the loss, is there any coverage?”10 ACC enforceability is a legal issue often implicated in answering the third question. This Part offers a preliminary overview of causation concepts in insurance law that are critical to unpacking the ACC enforceability issue. Section A of this Part defines important insurance law terminology.11 Section B outlines the form and function of ACCs in insur- ance contracts.12 A. Insurance Contract Terminology Randall L. Smith and Fred A. Simpson’s Causation in Insurance Law provides a helpful guide to insurance law terminology.13 First, a “peril” is an “active physical force that brings about a loss.”14 “Named-Perils Polic[ies]” are policies that cover listed perils, w.
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