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Florida Supreme Court Rules Standard All Risk Policy Exclusions for Defective Design and Construction Inapplicable in Concurring Causes Situations

Bretton C. Albrecht, Caryn L. Bellus, G. William Bissett, Michael C. Clarke, Angela C. Flowers and Betsy E. Gallagher | December 1, 2016

Earlier today, the Florida Supreme Court issued an extremely important decision reaffirming that Florida applies the “concurring cause” doctrine in first party insurance coverage disputes involving “all risk” insurance policies. The case arrived at the supreme court as a result of a conflict between a decision of the Third District Court of Appeal applying the “concurring cause” doctrine and a decision of the Second District Court of Appeal applying the “efficient proximate cause” doctrine.

In its decision and opinion in Sebo v. American Home Assurance Co., Inc., S. Ct. Case No. SC14-897 (Fla. Dec. 1, 2016), the Court reversed the Second District’s application of the “efficient proximate cause” doctrine to the case where rainwater and hurricane winds combined with the original defective design and construction of a home to cause a loss, since the Court felt there was “no reasonable way to distinguish the proximate cause” of the property loss.  The Court did note, however, that its decision was limited to the particular exclusionary language used in the policy before it, stating that language “did not explicitly avoid applying” the “concurring cause doctrine.” However, the Court also noted that the particular language used in other exclusions contained in the policy might lead to a different result.

The Court also briefly addressed the issue of whether the insured’s settlements with the architect, contractor, and seller of the home could provide the basis for an offset made post judgment.  The Court stated “[n]othing in our decision affects the ability of a trial court to consider the amount of settlements as a post-judgment offset,” and it remanded for reconsideration of this issue.

Fore more information or questions about this decision, please contact Bill Bissett or any of our other Insurance Coverage Team members.

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