SLABBED Daily – June 4

As promised, more on the pro se plaintiff v anticoncurrent causation (Lexington/AIG) starting with Lexington’s position.

Lexington has a right under the insurance policy to deny payments for damage that was caused by (a) flood water (as defined by the policy) or (b) a combination of flood and wind…In other words, it matters not whether the egg or chicken came first…

The water exclusion and the anti-concurrent clause provisions are valid and enforceable under Mississippi law. See e.g., Tuepker v. State Farm Fire & Casualty Co., 507 F. 3d 346 (5th Cir. 2007); Leonard v. Nationwide Mutual Ins. Co., 499 F.3d 419, 428 (5th Cir. 2007).

Consequently, the anti-concurrent cause clause bars any claim, or parts of a claim, that Plaintiff may make regarding wind damage that preceded flood damage or for damage caused by flood or a combination of flood and wind.

Even if the wind first damaged a portion of the home which portion was thereafter flooded, there is still no coverage under the Lexington policy for the flood damaged portion of the home.

Oops, Lexington did not mention the Rooster’s decision!

[A]n anti-concurrent cause provision has no application in a situation (such as Hurricane Katrina) where two distinct forces (wind and water) act separately and sequentially to cause different damage to insured property.

Each force may cause damage to different parts or items of the insured property, as occurred in the Leonard case, or the two forces may cause damage to the same item of insured property at different points in time. But the two forces, i.e. wind and water, remain separate and not concurrent causes of this damage...

[T]he anti-concurrent cause provision is not applicable and does not come into play because each force causes its own separate damage independent of the damage caused by the other even when the same item of property is damaged by both forces acting separately and sequentially. Wind and water are separate and not concurrent causes of the damage to the insured property. In either case, the damage caused by wind is covered under the policy while the damage caused by water is not.

It does matter whether the chicken or the egg came first if you count your eggs before they hatch as Lexington did in its Motion for Partial Summary Judgment in Pro Se Plaintiff v Lexington.

Lexington’s failure to consider Dickinson in the adjustment of the pro se plaintiff”s claim is established in the Motion and serves asĀ  evidence of the bad faith the Company denies.

7 thoughts on “SLABBED Daily – June 4”

  1. How could they have considered Dickinson – a 2008 decision – while adjusting a 2005 loss? Also, while I think Senter’s analysis makes sense, I don’t recall that it has been adopted by a MS appellate court.

  2. If you read David Roissmiller’s substantive posts on the subject on his blog along with Chip Merlin’s ACC analysis on his blog you’ll find Rossie’s New Appleman analysis has been the way ACC has been construed since it’s creation. I think you’ll find that bears out in State Farm’s own adjusting docs for instance including their Cat Induction Manual which you can find on this site.

    Katrina hits and all the sudden the insurers become ignorant to their own policy langauge around the time the first denial of coverage letters went out.

    Then ACC really got off track in Leonard when Edith Jones and the rest of the right wing judicial activists on the 5th Circuit Court of Appeals slaughtered the concept in the process expanding it well beyond it’s intended meaning and use.

    If you view these new found interpretations of established polcy langauge in the best light of a good faith disagreement then it is also fair to say the clause must be very ambigious due to the multiple differing interpretations used in Mississippi post Katrina.

    But while that may sound good in a legal brief the popular conception and the most accurate IMHO is the whole deal is simple bullshit designed to shaft Katrina impacted policyholders out of amounts they were contractually due.

    I highly recommend the United Policyholder brief prepared by Chip Merlin for Corban. Despite the fact we’ve had it for several days I do not see Nowdy’s post updated Justme. Shoot me an email and I’ll send it to you directly.


  3. Not to pile on but I’ll add Nationwide did not assert ACC as a defense in Leonard. Rather Judge Senter took the opportunity to rule that part of their policy language as ambigious in advance of it being used as a defense in the process creating the issue Nationwide would take to the 5th Circuit. As the case was an otherwise great result for them (and based in the law IMHO) they would not have appealed Senter’s ruling otherwise.


  4. Merlin’s post went up on SLABBED as soon as the documents were available and his brief is second on the list. I guess Sop didn’t see it, justme.

    I’ve just re-linked all four of the briefs so there shouldn’t be any problem here.

    However, your first question was about adjusting a 2005 claim by a 2008 decision.

    The Dickinson opinion was issued on the 25th of April but the pro se plaintiff did not file her complaint until the 28th of August.

    So aside from all Sop said, there was a four month period when there was both the information and the opportunity for Lexington to make the appropriate payment.

    IMO, justme, you hit on the reason no appellate court has adopted the Dickinson – it makes sense. In fact, it makes more sense than the acc clause.

  5. No appealate court has adopted Dickinson because the case has not been appealed.

    FYI I saw the link and the fact it didn’t work and evidently has not for two days thus my remark. Thanks for fixing it.


  6. I think we’re saying the same thing – It hasn’t been appealed because it makes sense. For all practical purposes Corban is appealing Leonard because it made no sense at all as you said.

    The links were connect to documents on Merlin’s blog that were working when I copied his post to SLABBED. I just made the direct connection as the problem seems to be with and on/off server at Lexis. Hopefully, it hasn’t been too much of a problem for readers here or there.

  7. Leonard is a true abomination.

    Then only other abomination is that more lawyers in La. are not using state courts to get the ACC clauses voided as violative of 22:1893, formerly 22:658.2, because the clauses in effect shift the burden of proof to insureds.

    During 2 recent State Farm adjuster depositions, both adjusters admitted the clause was confusing. Yet, Edith Bunker says the clause is unambiguous and easy to understand. Maybe one day her roof will be ripped off and rain will pour in followed sometime later by flood and then, her h/o insurer will hand her a check for just the roof.

Leave a Reply

Your email address will not be published. Required fields are marked *