The efficient proximate cause doctrine, at least in the context of insurance coverage, may be less clear after a recent Federal decision than it was before that decision. In a footnote, a Federal District Judge wrote that the efficient proximate cause doctrine as applied to insurance coverage questions under Nevada law "holds that unless the insurance policy provides otherwise, the claim 'that sets others in motion' is the one that is relevant to decide coverage." Probuilders Specialty Ins. Co. v. Double M. Constr. dba Classic Homes, 116 F. Supp. 3d 1173, 1181 & n.3 (D. Nev. 2015), appeal docketed, No. 16-15619 (9th Cir. April 7, 2016).
The Court's opinion does not appear to reflect an attempt to identify potentially excluded "earth movement" as "the claim 'that set others in motion'" but applied and upheld the anti-concurrent cause exclusion embedded in the policy's "earth movement" exclusion regardless.
In this Nevada case, the Federal Judge may have applied a different notion of "efficient proximate cause" which he found in the law of many other jurisdictions, where many Courts hold that an anti-concurrent cause exclusion is written to exclude coverage for loss caused concurrently by two or more causes, neither one of which alone would be the efficient proximate cause of the loss. As the District Judge in this Nevada case saw it, the efficient proximate cause doctrine of insurance coverage is applied in many other jurisdictions "to settle whether there is insurance coverage when both covered and non-covered damage contributed to the loss." Probuilders Specialty Ins. Co. v. Double M. Constr. dba Classic Homes, 116 F. Supp. 3d 1173, 1181 & n.3 (D. Nev. 2015), appeal docketed, No. 16-15619 (9th Cir. April 7, 2016).
Whatever Nevada law's treatment may be of the efficient proximate cause doctrine, it has been said that one of the apparent purposes of the anti-concurrent cause exclusions is to contract around the efficient proximate cause doctrine. See generally Dennis J. Wall, §§ 7:3, "Efficient Proximate Cause Doctrine" & 7:5, "ACCC or 'lead-in language,'" in DiMugno, Plitt & Wall, Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters" (2016). That is what the District Judge said in this case that Nevada law allows, and so that is what the District Judge allowed in this case.
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