Merlin picks up SLABBED post on State Farm’s anti-concurrent causation language and drives the point home

Somehow  I missed this post when I went by Property Insurance Coverage Law for a read earlier today; but, I don’t want anyone else to miss how Merlin advances the discussion of anti-concurrent causation.

Sabbed posted an excellent discussion of an often missed legal point today in “Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm.” It notes that State Farm wrote its anti-concurrent policy for judges and how difficult it is for the layperson to decifer.

Slabbed referred to David Rossmiller’s discussion of the history of the anti-concurrent causation language. Rosmiller, as part of his analysis, cited to an in-house State Farm attorney I knew through the American Bar Association’s Property Insurance Law Subcommittee, Michael E. Bragg. Bragg wrote an article long ago, Concurrent Causation and the Art of Policy Drafting: New perils for Property Insurers, 20 Forum 385 (Spring 1985), which discussed State Farm’s attempts to draft language trying to exclude certain types of mudslides, landslides, and earth movement scenarios which gave rise to the anti-concurrent language.

Everybody reading articles from this time frame should appreciate that many of the authors were insurance counsel trying to demonize certain coverage decisions as a reason for the re-drafting of policy language. I think many authors were just trying to pander publicly to their insurance clients in these journals–my opponent and respected adversary Doug Houser being a prolific example of such prose.

Nevertheless, in his opening, Bragg noted the difficulty of writing language dealing with causation:

“Causation is a cornerstone of the property insurance contract. From the infancy of the profession, insurers have used causal relationships both to describe the insured event and to define under what circumstances coverage does not apply. The choice has not always been a happy one.

Philosophers and linguists insist that language is merely man’s meager attempt to describe the reality of the physical world. We talk of “causes” of an event as if there were such things physically “out there” waiting to be discovered. Thus, we send adjusters, engineers, and geologists to determine the “causes” of a mudslide. While this approach was adopted from the much-heralded scientific method and appeals to common sense, philosophers would laugh at the futility. For them causes are not physical forces waiting to be discovered; they are nebulous relational constructs waiting to be described.

This philosophic premise has two very important corollaries: first, every event has an infinite number of causes; and second, each cause can be described in an infinite variety of ways. Although these statements are beyond serious philosophic challenge, they seem far removed from the practical considerations faced daily by policy drafters, underwriters, and claims persons.”

Bragg also admitted that the needed language was complex and difficult to understand:

“The difficulty, of course, is usually not one of intention, but one of language. We humbly acknowledge the inherent artificiality, inadequacy, and imprecision of our language. Yet we ask the policy drafter to forge the magic words that are at once easy for the lay reader to comprehend and at the same time legally sufficient for the court to sanction. It is this challenge of writing for a dual audience (laymen and judge), and the often contrary demands of each, that leaves fertile ground for litigation.

When policy drafters from individual companies began to examine concurrent causation, they quickly learned that the issue was overwhelmingly complex. The “solution,” in the words of McGeorge Bundy, was as elusive as “picking up a jellyfish by the corners.”

I suggest that the worded solution found in Corban’s USAA policy is still that elusive to most people. It is no surprise that State Farm’s amicus attorneys now seem to miss the prior admissions of how difficult and complex Bragg found the language to write. Hopefully, the clerks and judges of the Mississippi Supreme Court find their way to these older articles and to Rossmiller’s analysis. The people of Mississippi deserve that depth of legal reflection from their jurists on this most important insurance case.

One interesting piece of information I left out of my discussion of readability scores needs mention:

Florida requires that insurance policies have a Flesch-Kincaid score of 45 or greater.

That score would translate to a reading grade level slightly above 12.0.  Since there is more to comprehension than readability alone, Mississippi is not the only state in need of “reflection”.

Insurance is a promise – and whatever that promise may be, it should not be a surprise!

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