6 ADJUSTINGTODAY.COM “Unfortunately, this allows carriers to preclude coverage for losses concurrently caused as little as 1 percent by uncovered causes, creating illusory coverage and depriving policyholders of their reasonable expectations.” Shifting Burdens All of that is no reason to give up, however, as the application of ACC exclusions is not universal or ironclad. California andWest Virginia do not enforce ACC provisions, at least not to their full extent, according to Timoney Knox, LLP. Three other states that enforce them (Arizona, Hawaii and Mississippi) have allowed for exceptions to their enforcement and several states (including Florida, Illinois and Ohio) had not definitively ruled on them as of October 2017. An interesting and potentially hopeful sign emerged in February 2018 from a Florida appeals court. Tampa-based attorney Erin Dunnavant, in another blog post by the Merlin Law Group,7 described the appeals court’s reasoning regarding proper instructions to a jury in a case involving a dispute over concurrent causation. Under the court’s instructions, according to Dunnavant, an insured under an open perils policy initially must only establish that damage occurred during the policy period. The burden then shifts to the insurer to determine if there was a sole or efficient proximate cause of the loss. Once that is established, the burden remains with the insurer to establish that the sole or proximate cause was excluded under the policy. ‘Under current Colorado law,’ Bukowski wrote, ‘if the carrier has included anti-concurrent causation language and can point to some event in the chain of events that was excluded, the carrier can deny coverage for an otherwise covered loss. ‘Unfortunately, this allows carriers to preclude coverage for losses concurrently caused as little as 1 percent by uncovered causes, creating illusory coverage and depriving policyholders of their reasonable expectations.’
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