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Anti-concurrent Clause and Faulty Workmanship Exclusion

Anti-concurrent clauses preclude coverage even where the loss is partially caused by a covered cause of loss.  This clause received considerable attention in hurricane-related coverage litigation following Hurricane Katrina.  In a recent case, the Eighth Circuit Court of Appeals addressed the anti-concurrent clause in the context of damage allegedly caused in part by faulty workmanship.

In Joseph J. Henderson & Sons, Inc. v. Travelers Property Casualty Insurance Co. of America, No. 18-3341 (8th Cir. Apr. 20, 2020), a contractor installed panels on a building as part of an environmental project.  The panels on the roof of the building were damaged during a windstorm.  The contractor sought coverage under the owner’s (city) builder’s risk policy.  The insurer disclaimed coverage because of the alleged faulty workmanship by the contractor based on the policy’s exclusion for faulty workmanship.  The contractor sued seeking coverage and the insurer lost its motion for summary judgment.  After a jury trial, judgment was entered in favor of the the contractor finding coverage.  The appeals court affirmed.

The anti-concurrent clause was contained in the external event exclusion.  It provided that the insurer would not pay for losses caused by certain external events.  The exclusion stated that the policy would not pay under those circumstances regardless of any other cause or event that contributed concurrently or in any sequence to the loss.  The court identified this as the anti-concurrent clause, also known to many of us as an anti-concurrent causation clause.

The policy had another exclusion for faulty workmanship.  This is the exclusion relied upon by the insurer.  The court found it important that the faulty workmanship exclusion did not include anti-concurrent language.  In fact, the court noted that the exclusion provided that it did not apply “if loss or damage by a Covered Cause of Loss results.”

In affirming the denial of summary judgment, the appellate court rejected the insurer’s argument that the faulty workmanship exclusion included an anti-concurrent provision.  The court construed the exclusion to provide that the policy would not pay for damage caused by faulty workmanship, except when the damage is caused in part by a covered event, such as a windstorm.  The court concluded that the faulty workmanship exclusion did not contain an anti-concurrent provision.

The court also rejected arguments that the faulty workmanship was the sole proximate cause of the damage.  Instead, the court held that the faulty workmanship and the windstorm were independent causes even though the damage could not have been caused by either independently of each other.  Based on the evidence, the court held that the jury could have found that the contractor’s faulty workmanship was not the sole proximate cause of the damages.  Accordingly, the denial of summary judgment was affirmed.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 134

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About this Author

Larry P. Schiffer Commercial Insurance Reinsurance Litigation Lawyer
Partner

Larry Schiffer practices in the areas of commercial, insurance and reinsurance litigation, arbitration and mediation. He also provides advice on coverage, insurance insolvency, and contract wording issues for a wide variety of insurance and reinsurance relationships. 

Larry is active in legal and insurance industry associations where he has held various leadership positions. He has lectured in the US, Bermuda and the UK, and has been widely published on reinsurance and other insurance, litigation and technology topics in various national and...

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