Concurrent Cause Doctrine Does Not Apply When all Causes are Excluded
Post 5119
Death by Drug Overdose is Excluded
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Southern Insurance Company Of Virginia v. Justin D. Mitchell, et al., No. 3:24-cv-00198, United States District Court, M.D. Tennessee, Nashville Division (October 10, 2024) Southern Insurance Company of Virginia sought a declaratory judgment regarding its duty to defend William Mitchell in a wrongful death case pending in California state court.
KEY POINTS
1. Motion for Judgment on the Pleadings: The Plaintiff moved for judgment on the pleadings, which was granted in part and denied in part.
2. Duty to Defend: The court found that the Plaintiff has no duty to defend William Mitchell in the California case due to a specific exclusion in the insurance policy.
3. Duty to Indemnify: The court could not determine at this stage whether the Plaintiff had a duty to indemnify William Mitchell, as this depends on facts determined by the trier of fact.
LEGAL STANDARDS AND ARGUMENTS
The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is the same as that for a motion to dismiss under Rule 12(b)(6) for failure to state a claim.
The Defendants argued that the California case (for which Plaintiff seeks defense and indemnity) asserts theories of liability that show cause of injury not entirely arising out of the controlled substances that killed the plaintiff in the California case, invoking the concurrent cause doctrine.
COURT’S ANALYSIS
California Case Allegations
The court found that all theories of liability in the California case are anchored in the decedent’s drug overdose, and no other act created a substantial part from a risk covered by the policy.
Under Tennessee law, the duty to defend and the duty to indemnify are distinct. The duty to defend is a question of law that can be decided at the summary judgment stage. On other hand, the duty to defend is triggered only after a fact finder determines the true facts and these facts are within a policy’s coverage.
An insurer’s duty to defend is separate and distinct from the insurer’s obligation to pay claims under the policy. The duty to defend is broader than the duty to indemnify. An insurer may not properly refuse to defend an action against its insured unless it is plain from the face of the complaint that the allegations fail to state facts that bring the case within or potentially within the policy’s coverage.
The Court can find no duty to defend if it is plain from the face of the complaint and the attachments thereto that the allegations fail to state facts that bring the case within or potentially within the policy’s coverage.
The concurrent cause doctrine looks to whether coverage should apply when the independent causes – one addressed by an exclusion and the other not – caused the damages or injury and will allow for coverage if the nonexcluded act was a substantial causal factor.
The claims against William Mitchell in the California case are couched in terms of different liability theories – negligence, duty to warn, and violation of the California Drug Dealer Liability Act – but each theory of liability is anchored in the decedent’s drug overdose.
Exclusion Clause
The court analyzed the specific exclusion in the insurance policy, which excludes coverage for bodily injury or property damage arising out of the use, sale, manufacture, delivery, transfer, or possession of controlled substances.
CONCLUSION
Plaintiff’s motion for judgment on the pleadings was granted in that it has no duty to defend William Mitchell against the claims in the California lawsuit.
However, because the duty to indemnify is based on facts determined by the trier of fact and not merely the facts alleged in the complaint – as is the case of the duty to defend – the Court could not conclude at whether Plaintiff has a duty to indemnify William Mitchell relating to the California case. Therefore, the motion for judgment on the pleadings was denied as to the issue of the duty to indemnify.
ZALMA OPINION
The concurrent cause doctrine, created in the courts of the state of California allows that if one cause of loss is excluded and another cause of loss is not excluded, the loss must be covered and defense provided to the insured. In this case there were multiple causes of the injury to the California plaintiff but all of those causes related to the excluded cause, the drug overdose. The USDC in Tennessee provided a Solomon like decision denying defense but leaving open the potential for Indemnity.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Refusal to Provide Workers’ Compensation is Expensive
Post 5240
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In Illinois Department of Insurance, Insurance Compliance Department v.USA Water And Fire Restoration, Inc., And Nicholas Pacella, Individually And As Officer, Nos. 23WC021808, 18INC00228, No. 25IWCC0467, the Illinois Department of Insurance (Petitioner) initiated an investigation after the Injured Workers’ Benefit Fund (IWBF) was added to a pending workers’ compensation claim. The claim alleged a work-related injury during employment with the Respondents who failed to maintain workers’ compensation Insurance.
Company Overview:
USA Water & Fire Restoration, Inc. was incorporated on January 17, 2014, and dissolved on June 14, 2019, for failure to file annual reports and pay franchise taxes. It then operated under assumed names including USA Board Up & Glass Co. and USA Plumbing and Sewer. The business ...
Arsonist Incompetently Moves Pro Se to Avoid Prison
Post 5239
Read the full article at https://lnkd.in/gRX8TfKn, see the video at https://lnkd.in/gY3Jvnqp and at https://lnkd.in/gRCaaf-3, and at https://zalma.com/blog plus more than 5200 posts.
In Christopher A. Barosh v. Morris Houser, et al., Civ. No. 22-0769, United States District Court, E.D. Pennsylvania (November 25, 2025) a convicted arsonist and insurance fraudster moved the USDC acting in Pro se filed Objections to Magistrate Judge Reid’s Recommendation that the US District Judge dismiss his § 2254 Petition to avoid jail.
BACKGROUND
In October 2005, Barosh set fire to his girlfriend’s Philadelphia home — some 25 hours before the cancellation of the property’s insurance policy. Several witnesses saw Barosh leaving the property shortly before the fire erupted. After the fire, Barosh made “two separate admissions of guilt.”
He attempted to pay an acquaintance to provide him with an alibi for the time of the arson. The eyewitnesses, brother, and ...
Conditional Release Allows Supplemental Claims
Post 5238
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A Release Should Totally Resolve Dispute
In Harvey et al. v. Hall, No. A25A1774, Court of Appeals of Georgia, Fourth Division (December 3, 2025) Paul Harvey, an employee of Arthur J. Dovers (d/b/a 3D Mobile Home Services), drove a truck towing a trailer loaded with machinery and equipment. Harvey fell asleep, veered off the road, and crashed into a culvert, causing Lamar Hall serious injuries.
FACTS OF SETTLEMENT
On August 18, 2020, Hall signed a limited liability release under OCGA § 33-24-41.1, releasing Harvey, Dovers, and their insurer (Georgia Farm Bureau Insurance Company) from liability for the accident in exchange for $50,000, “except to the extent other insurance coverage is available which covers the claim.”
Dovers’s general liability insurer (Republic-Vanguard ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
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Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
