United States: Florida Supreme Court Decides That Concurrent Causes Equal Coverage

Last Updated: December 8 2016
Article by Heidi Hudson Raschke

It's said that "defeat is an orphan," but insurable losses often have multiple, concurrent causes. In some cases, one or more of those causes might be outside the scope of coverage, either by omission or exclusion. In Sebo v. American Home Assurance Company, No. SC14-897 (Fla. Dec. 1, 2016), the Supreme Court of Florida ruled that if damage results from "concurrent causes" and, as between the concurrent causes, an "efficient proximate cause" cannot be determined, it is reasonable to find coverage for the entire loss under an all-risk policy, even if one of the causes is excluded from coverage. As a result, Florida insurers whose policies do not contain anti-concurrent causation language may now be saddled with coverage for damage they intended to exclude.

Leak House

John Sebo, bought a house in Naples, Florida, in April 2005 and insured it with an all-risk property policy issued by American Home. The policy was a manuscript form, providing over $8,000,000 in coverage.

Shortly after the home was purchased, major water leaks occurred during rain storms, and it became evident that the house suffered from significant design and construction defects. In October 2005, Hurricane Wilma further damaged the residence, and Mr. Sebo filed a claim under his policy.

American Home denied coverage for most of the damage, based on an exclusion for "Faulty, Inadequate or Defective Planning." That exclusion provided:

We do not cover any loss caused by faulty, inadequate or defective:

  1. Planning, zoning, development, surveying, siting;
  2. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
  3. Materials used in repair, construction, renovation or remodeling; or
  4. Maintenance;

of part of all of any property whether on or off the residence."

American Home did, however, provide $50,000 in coverage for mold damage.

The residence could not be repaired and was ultimately demolished. Mr. Sebo subsequently sued a number of defendants, including the sellers of the property, the architect and the construction company, among others, alleging negligent design and construction and failure to disclose defects. He later amended the complaint to add American Home, seeking a declaration that the policy provided coverage for the claimed damages. After settling with most of the other defendants, he proceeded to try the case against American Home. The jury found in favor of the insured, and the trial court entered judgment against the insurer

Is There A Doctrine For The House?

On appeal, it was undisputed that Mr. Sebo's loss had resulted from multiple causes, including defective construction, rain and wind. The Second District Court of Appeal ordered a new trial, "in which the causation of Sebo's loss is examined under the efficient proximate cause theory." In cases of concurrent causation, this doctrine provides that the "efficient cause"—the most substantial or responsible factor in the loss—should be considered the sole cause for purposes of determining the availability of coverage. (Pace Aristotle, therefore, the "efficient cause" is not limited to an outside agent that sets the events in motion.)

In reaching that conclusion, the Second DCA expressly disagreed with the ruling of the Third District Court of Appeal in Wallach v. Rosenberg, 527 So.2d 1386, 1388 (Fla. 3d DCA 1988). Wallach had adopted the "concurrent cause doctrine," which finds coverage wherever an insured risk is one of the concurrent causes of a loss, even if it is not the prime or efficient cause. In Wallach, the Third DCA reasoned that, "where weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy[,] even if one of the causes is excluded from coverage."

The Second DCA cited California cases, and particularly relied on Garvey v. State Farm Fire &Casualty Co., 770 P.2d 704 (Cal. 1989), to explain the distinction between applying concurrent causation in a liability context and the efficient proximate cause in a first-party property coverage context:

Property insurance is a contract between the insured and the insurer to cover property losses that are either caused by certain perils that are specifically named in the policy or are caused by "all perils" except for those specifically excluded from coverage. ... Liability insurance, on the other hand, looks to tort concepts such as fault, proximate cause, and duty. Insuring liability for a person's negligence includes coverage for a broad spectrum of unnamed perils, i.e., losses of any sort that are caused by the insured's negligent acts. The covered perils in a property insurance policy determine the premium the insured will pay and the distribution of risk between the insured and the insurer. And as the Garvey court stated, an insured's reasonable expectations of coverage under the policy 'cannot reasonably include an expectation of coverage ... in which the efficient proximate cause of the loss is an activity expressly excluded under the policy.'"

American Home Assur. Co. v. Sebo, 141 So.3d 195 (Fla. 2d DCA 2013).

The Second DCA reviewed Florida cases which have applied both efficient proximate cause (Hartford Accident & Indemnity Co. v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974)), and concurrent causation theories (Wallach), and it ultimately determined that the nature of an all-risk property policy made the efficient proximate cause theory of liability more appropriate. The Court noted:

As the Garvey court pointed out, a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy.

Sebo, 141 So.3d at 201 (citing Garvey, 770 P.2d at 705).

The Supreme Court's Third Way

The Florida Supreme Court accepted jurisdiction of the question of whether there is coverage when multiple perils combine to create a loss, and at least one peril is excluded, based on the conflict between Wallach and Sebo.

The Supreme Court noted that it had applied the efficient proximate cause test in Fire Association of Phila. V. Evansville Brewing Ass'n, 75 So. 196 (Fla. 1917), which involved a chain of events, with one peril leading directly to a succeeding peril. In that context, coverage would be available if a covered peril sets into motion an uncovered peril, but not where the excluded peril came first.

In contrast, under the concurrent cause doctrine, coverage may exist if an insured risk constitutes a concurrent cause of loss, even when it is not the prime or efficient cause. It was first applied by a Florida court in Wallach.

While it considered the merits of both theories, the Supreme Court noted that the loss at issue presented something of a middle case: it was undisputed that the loss was the result of multiple causes, but none of those causes could clearly be identified as the "prime" or "efficient" cause.

[T]here is no reasonable way to distinguish the proximate cause of Sebo's property loss – the rain and construction defects acted in concert to create the destruction of Sebo's home. As such, it would not be feasible to apply the [efficient proximate cause] doctrine because no efficient cause can be determined.

The Supreme Court was not concerned about the issue raised by the Second District Court – that the concurrent cause doctrine could effectively nullify all exclusions in an all-risk policy – noting that some exclusions in the policy contained anti-concurrent causation language. (For example, the pollution or contamination exclusion excluded "any loss, directly or indirectly, and regardless of any cause or event contributing concurrently or in any sequence to the loss" caused by pollutants.) Because the Faulty, Inadequate or Defective Planning exclusion did not employ language avoiding the application of the concurrent cause doctrine, the Supreme Court held that the plain language of the policy did not preclude recovery.

Don't Let This Happen To You

The Florida Supreme Court's ruling underscores the importance of including anti-concurrent causation language in exclusions. However, the decision does not wholly preclude the possibility of applying the efficient proximate cause doctrine to a loss in Florida. The Court held that the concurrent cause doctrine applies when there is no reasonable way to distinguish the proximate cause of a loss. Based on the Court's reasoning, in those instances where there is a clear proximate cause or sequence of events, it appears that the efficient proximate cause theory of liability would still apply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.