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Vol. 10 - Issue 1

January 11, 2021


North Star Mutual Insurance v. Ackerman (North Dakota Supreme Court)

Using Concurrent Causation To Find Liability Coverage


The concept of concurrent causation is usually reserved for property policies.  In very general terms, this is where a loss is caused by a combination of things – and coverage is owed so long as one of the causes is covered.  This is why many insurers often attempt to draft around this principle with so-called “anti-concurrent causation” provisions.

But, despite concurrent causation usually existing in the realm of property policies, a concept of it – “efficient proximate cause” -- played an important part of the Washington Supreme Court’s 2017 decision in Xia v. ProBuilders Specialty Insurance Company.  There, the court held that the pollution exclusion did not apply.  The court determined that the efficient proximate cause of injuries was the negligent installation of a hot water heater.  Because this was a covered occurrence, that set in motion a causal chain, that led to discharging toxic levels of carbon monoxide, being an excluded peril, the pollution exclusion was not applicable.  In other words, the pollution exclusion did not apply because two or more perils combined in sequence to cause a loss – one covered and one not -- and a covered peril was the predominant or efficient cause of the loss.  I included Xia as one of that year’s ten most significant coverage decisions.

This year, concurrent causation again played an important part in a state high court’s decision concluding that liability coverage was owed.  Like Xia before it, the North Dakota Supreme Court’s decision, in North Star Mutual Insurance v. Ackerman, No. 20190135 (N.D. Mar. 25, 2020), demonstrates that, with the right facts, concurrent causation can open the door to liability coverage that otherwise seems closed. 

At issue in Ackerman was coverage, under a commercial general liability policy, for injury caused in a motor vehicle accident.  Specifically, Jayme Ackerman, of Ackerman Homes, was driving on an interstate when a wheelbarrow fell out of his pickup truck and landed on the road.  Another driver came upon the wheelbarrow, lost control of his vehicle and went through the median, striking Kyle Lantz, who received severe injuries.

North Star Mutual argued that no coverage was owed for Lantz’s injuries, under the CGL policy, based on exclusions for use of motor vehicles and loading and unloading of equipment.  Lantz acknowledged that the policy contained a motor vehicle exclusion, “but argued there were also covered non-vehicle related negligent acts and the concurrent cause doctrine applies to provide coverage.”

North Dakota’s top court concluded that, despite a policy exclusion for use of a vehicle, coverage was still owed.  The court agreed that the accident also had a non-vehicle (i.e., non-excluded) cause: “The wheelbarrow also was left on the road for some time before the accident occurred, and Ackerman did not remove it or warn other drivers of its presence. These were independent, nonvehicle-related, acts that did not arise out of the use of the automobile. The exclusion for injuries arising out of the use of an automobile does not apply to these acts.”

Now, faced with both vehicle and non-vehicle based causes for the accident, the court turned to the concurrent causation doctrine to conclude that coverage was owed: “The concurrent cause rule . . . takes the approach that coverage should be allowed whenever two or more causes do appreciably contribute to the loss, and at least one of the causes is an included risk under the policy. Under the concurrent cause doctrine the GCL policy provides coverage in this case. The failure to remove the wheelbarrow from the road and the failure to warn were independent acts that allegedly were a cause of the injury. The injury potentially arose just as much from failure to remove the wheelbarrow and warn other drivers, which are covered risks, as it arose from the transportation of the wheelbarrow.”

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