Concurrent Causation: An Adjuster's Dilemma

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If an insurer provides evidence that an excluded risk was a concurrent cause of the loss, the burden shifts to the policyholder to provide evidence that a loss was also caused by a covered peril acting prior to or concurrently with the excluded cause.

The burden then shifts back to the insurer to demonstrate that the peril cited by the policyholder had little or no contribution to the loss, or that it was excluded from coverage.

In the absence of a sole or efficient proximate cause, or in the absence of ACC provisions, the insurer would bear the burden of presenting evidence that coverage would otherwise be excluded.

Adjusters and policyholders may benefit from how this court defined how the burden of proof shifts from policyholder to insurer in concurrent causation cases. An approach such as this, if widely adopted, could provide policyholders, insurers and their respective adjusters with a commonly understood approach to adjusting claims fairly and efficiently.

All of that is no reason to give up, however, as the application of ACC exclusions is not universal or ironclad.


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