Lack of Covered Concurrent Cause Defeats Concurrent Cause Argument

Clear & Unambiguous Exclusion Affirmed

May 17, 2022

THE APPEAL

Citing the concurrent cause doctrine, Higgs argued that Tennessee Farmers must defend and indemnify Payne as, apart from the pool, certain non-excluded causes contributed to Cayson’s death-namely, Payne’s failure to fence or gate his property.

OPINION

Higgs, individually and on behalf of her deceased son, Cayson, sued Payne for the negligent maintenance of his property in relation to Cayson’s death by drowning in Payne’s swimming pool. As Higgs did laundry, Cayson wandered into Payne’s yard, climbed up on his unsecured deck, and drowned in Payne’s swimming pool. Tennessee Farmers asserted that, based on an exclusion contained in Payne’s policy, it had no obligation to defend or indemnify Payne in this matter. The exclusion states:

PERSONAL LIABILITY AND MEDICAL PAYMENTS TO OTHERS COVERAGE PROVIDED BY THIS POLICY SHALL NOT PROVIDE PROTECTION FOR ANY CLAIMS OR DAMAGES ARISING FROM OR IN CONNECTION WITH THE SWIMMING POOL ON THE INSURED PREMISES.

The Trial Court entered an order granting Tennessee Farmers’ motion for summary judgment and denying Higgs’ motion for summary judgment.

The Complaint is predicated upon negligence by Defendant as it relates to the pool where the Complaint alleges, among other things:

Defendant Payne did not have a fence or gate around the pool or his property. Rather, he had a deck that partially surrounded the aboveground pool, providing easy access to the pool[.]
The child’s death was proximately caused by Defendant’s failure to maintain his property and pool in a reasonable and safe manner and condition.
Defendant’s breaches of duty include but were not limited to:
Failing to have a fence around his pool and/or property,
Failing to have a gate to prevent access to his pool,
Failing to secure, lock, or remove the steps to the aboveground pool to prevent access to the pool,
Failing to have a pool alarm,
Failing to exercise reasonable and ordinary care under the circumstances, and
Defendant is guilty of violating Tenn[.] Code Ann[.], §68-14-801 et Seq “Katie Beth’s Law” (Pool Alarms) and said violation constitutes negligence per se and was a direct and proximate cause of the minor child’s death and injuries[.]

At the time of the incident, based on the relevant undisputed facts: Defendant’s property was insured by an all-risk policy with Tennessee Farmers Mutual Insurance Company for which he was paying a premium.

ANALYSIS

Viewing the complaint and evidence in the light most favorable to Respondent Higgs, the claims in the Complaint arise from or in connection with the swimming pool on Respondent David Payne’s property and although they may have been otherwise covered under the general terms of the “all-risk policy” the Court of Appeal concluded that it was clear that the endorsement expressly excludes coverage, and the Court finds no ambiguity in the words “arising from or in connection with the pool” or its applicability in this case[.]

Further, it is of no consequence that the policy does not explicitly provide an exclusion concerning coverage for claims or damages arising from or in connection to Defendant’s decks or other defects or deficiencies on Respondent Payne’s property such as lack of fencing because these alleged breaches of duty are linked to the swimming pool.

There is no allegation that these alleged breaches of duty were defective any way other than as it relates to the pool and there are no allegations that injuries would have resulted if there was no pool.

In this case, there is no other separate cause or non-excluded cause for the injuries. As such, the concurrent coverage theory is not applicable.

The Tennessee Supreme Court most recently addressed the concurrent cause doctrine in Clark v. Sputniks, LLC, 368 S.W.3d 431 (Tenn. 2012), a case featuring an issue of whether liability insurance coverage existed so as to cover plaintiffs’ injuries stemming from an altercation at the insured’s bar and restaurant.

Tennessee recognizes the concurrent cause doctrine, which provides that there is insurance coverage in a situation “where a nonexcluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have contributed in some form to the ultimate result and, standing alone, would have properly invoked the exclusion contained in the policy.” Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 887 (Tenn. 1991).

Higgs’ mere assertion or conclusion that homeowners are duty-bound in general to fence in their property, whether they have a swimming pool or not, is unsupported by any facts or law. The absence of a fence from Payne’s property is meaningful to the question of Tennessee Farmers’ obligation to defend and indemnify this claim only if it constituted a non-excluded concurrent cause of Cayson’s death not “arising from or in connection with the swimming pool on the insured premises.”

The chain of events leading to the ultimate harm did not begin with an excluded risk; it ended with one. Moreover, the issue with Higgs’ proffered non-excluded concurrent causes is not their sequence in the chain of events leading to Cayson’s death, but whether these proffered causes constitute non-excluded concurrent causes at all. Each of Higgs’ alleged non-excluded concurrent causes are bound up inextricably with Cayson’s tragic drowning in Payne’s pool, an excluded cause under Payne’s insurance policy.

Under the facts of this case, Higgs alleged non-excluded causes of no fence or gate securing Payne’s pool or property cannot be negligent except “in connection with the swimming pool on [Payne’s] premises.” In other words, it is not a matter of “but for” the pool; it is the pool only.

The language in Payne’s insurance policy is clear and unambiguous-there is no “personal liability” or “medical payments to others” coverage for any claims or damages “arising from or in connection with the swimming pool on the insured premises.”

Higgs’ complaint alleges no non-excluded concurrent cause. Tennessee Farmers is not obligated to defend or indemnify Payne in this matter. Having held that no non-excluded concurrent cause was alleged in this case, the judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below.

ZALMA OPINION

The concurrent cause doctrine has helped insured’s obtain insurance coverage in the face of a clear and unambiguous exclusion. However, there must be a covered cause of loss that concurs with the excluded cause in effecting the damage. In this case there was only one cause of the child’s death, the pool. Ms. Higgs is not without a remedy, she may still proceed against Payne and collect any judgment against his assets.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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