Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause

    The court upheld the insurer’s denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023). 

    Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage. 

    Axis denied the claim for damage to the marina based upon the policy’s anti-concurrent causation clause, which excluded loss caused directly or indirectly by flood, surface water, or waves. Also excluded was waterborne material carried by water. Axis contended the boats and debris were “waterborne material” moved by the storm surge. Heritage filed suit and Axis moved for partial summary judgment.

    Neither investigator opined that wind, a covered peril, caused damage to the marina. Heritage had no evidence that wind caused damage to the marina such that there would be coverage under the policy. Therefore, Axis’ motion was granted as it related to the claim for marina damage.