Limitations on the concurrent cause doctrine in Tennessee
In the insurance context, the concurrent cause doctrine provides that there is insurance coverage available when a covered (non-excluded) cause is a substantial factor in producing a loss, even though an excluded cause may have contributed in some form to the ultimate result. Although Tennessee courts recognize the concurrent cause doctrine, there are some limitations on its application.
In a recent opinion, the Tennessee Court of Appeals rejected a mother’s argument for the application of the concurrent cause doctrine where an insured homeowner’s insurance policy specifically excluded claims or damages arising from or in connection with the swimming pool on the insured premises. In Tennessee Farmers Mutual Insurance Company v. Payne,[1] the plaintiff mother, on behalf of herself and her deceased son, sued an insured homeowner for the negligent maintenance of the insured’s property in connection with the devastating drowning of her son in the insured’s swimming pool. According to the complaint, the plaintiff was doing laundry while house-sitting her parents’ house with her five-year-old child. The child wandered into the homeowner’s yard, climbed their unsecured deck, and drowned in the insured’s swimming pool.
The homeowners’ insurance company filed a declaratory judgment action against the plaintiff mother and the insured homeowner seeking a declaration that it had no obligation to defend or indemnify the insured. The insurer relied on an exclusion stating that “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.” Both the insurer and the mother filed cross motions for summary judgment, and the trial court ruled that the insurer was not obligated to defend or indemnify the insured homeowner. The court of appeals affirmed, noting that “the complaint cannot be reasonably construed as alleging anything other than negligent acts or omissions in connection with the excluded coverage.”
On appeal, the mother argued that the swimming pool was only one of several substantial contributing causes to the child’s death and that these additional causes were covered by the policy. Specifically, the mother argued that the concurrent cause doctrine applied such that the insurer should be obligated to defend and indemnify the insured under the all-risk policy because “[t]he decision not to fence the property has nothing to do with the swimming pool and would have been negligent regardless whether there was a swimming pool in [insured’s] yard.” The court rejected this argument, emphasizing that the absence of a fence is relevant only if it constituted a covered (non-excluded) concurrent cause of the child’s death not arising from or in connection with the swimming pool. The court also rejected the mother’s argument that there would be coverage if the lack of a fence could have caused the child to fall in a hole in the insured’s backyard or trip on the deck next to the pool because “that is not the factual scenario [mother] alleged in her complaint.” In reaching its decision to affirm the trial court, the court of appeals ruled that each of mother’s alleged non-excluded concurrent causes were “bound up inextricably” with the child’s drowning in the insured’s pool, which is an excluded cause.
For additional information regarding insurance-related matters, please contact Mark Bell or Quynh-Anh Kibler or your regular Waller contact at (615) 244-6380.
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