In Stor/Gard, Inc. v. Strathmore, 2013 WL 2364168 (1st Cir. May 31, 2013), the First Circuit Court of Appeals was presented with an argument on appeal that was not evidenced in the record, the Court said. The lawyers for Stor/Gard argued that the damage was caused by a water leak which was dismissed as playing a minimal role in causing the loss. The only evidence in the record apparently was an Expert's report relied on by Stor/Gard's insurance carrier.
Stor/Gard did not proffer any Expert evidence of their own, the Court pointed out.
As a result, the leak-as-cause-of-loss was the product only of a lawyer's argument. On the other side stood the evidence and Massachusetts law. Of the evidence, the report of an Expert relied on by the carrier has already been mentioned as to the leak theory. The report concluded that the predominant cause of the loss was rain and water from a storm.
Massachusetts law is at issue in that case. Massachusetts follows the efficient proximate cause doctrine where, as in that case, the insurance policy contains an "anti-concurrent cause" exclusion that if two or more causes combine to cause a claimed loss, and one of the causes is excluded, then the entire loss is excluded from coverage. Under the Massachusetts efficient proximate cause doctrine, however, there still can be coverage in such a case if the covered cause was the efficient proximate cause of the loss.
Here, as noted above, the leaky faucet combined with an excluded cause or causes of loss in causing the loss at issue. The leaky faucet could not be the efficient proximate cause of that loss in this case on this record, however, because the only evidence in the record speaking to the causation role of the leak, was that the leak was a minimal cause at most.
The First Circuit affirmed a holding of no coverage in this case accordingly.
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