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supra, at § 3145 (Supp.2007) (citing Kane, 768 P.2d 678).
FN20. Xavier points to the mentioning of “Act of God” in the sixth edition of Black's
Law Dictionary's definition of “flood” as authority for limiting floods to natural events.
Since an “Act of God” is “[a]n act occasioned exclusively by forces of nature without the
interference of any human agency,” Black's Law Dictionary 33 (6th ed.1990), Xavier
context of an enormous hurricane, and it thus had a significant natural component.
The plaintiffs next rely heavily on a line of cases, arising in the context of broken water
mains, holding that the term “flood” in a policy's exclusion was ambiguous based on a
distinction between natural and non-natural events. For example, in Ferndale
Development Co. v. Great American Insurance Co., a Colorado intermediate court
water main”). Similarly, a New York intermediate court held that a flood exclusion did
not apply in the context of a broken water main because the term “flood” “connotes an
inundation; a deluge.” Popkin v. Sec. Mut. Ins. Co. of N.Y., 48 A.D.2d 46, 48, 367
N.Y.S.2d 492 (N.Y.App.Div.1975). That court also opined that even if the term “flood”
is to be read broadly so as to include any “great quantity” of water, the term should be
Mellon v. Hingham Mut. Fire Ins. Co., 19 Mass.App.Ct. 933, 472 N.E.2d 674, 675
(1984) (concluding that exclusion for “water below the surface of the ground” did not
exclude damage from drainage pipe's rupture because the “loss was caused by an
accidental break rather than a natural occurrence” and, as a fortuity, was “the kind of risk
an ‘all risk’ policy is designed to cover”).FN21
Couch, supra, at § 153:65 (collecting cases); see also id. §§ 153:66-:67; Fayad v.
Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1086-89 (Fla.2005); Murray, 509 S.E.2d at 4-
5, 10; Peach State Uniform Serv., Inc. v. Am. Ins. Co., 507 F.2d 996, 1000 (5th Cir.1975)
(applying Georgia law).
We do not question the holdings or the rationale of the earth-movement cases. But the
Although we do not quibble with the results reached in the water-main cases, we do not
believe that a distinction between natural and non-natural causes is applicable in this
context. First, unlike a canal, a water main is not a body of water or watercourse. Many
(although not all) dictionary definitions define “flood” as an overflow or inundation of a
body of water or watercourse. FN22 Likewise, Appleman's treatise observes that flood
(distinguishing between rupture of water main and overflow of watercourse, regardless of
whether the watercourse was originally man-made or forged from nature). Couch on
Insurance recognizes a distinction between water-main breaks and the overflow of a body
of water and opines that the body-of-water delineation is more useful than the
natural/non-natural distinction in determining whether an event is a flood:
been maintained for a sufficient length of time. Black's Law Dictionary 1623 (8th
ed.2004); see also Wallis v. Country Mut. Ins. Co., 309 Ill.App.3d 566, 243 Ill.Dec. 344,
723 N.E.2d 376, 382 (2000) (stating that a permanent watercourse with a defined bed,
visible banks, and a recurrent water flow is considered natural, even if it was originally
man-made).
distinction. Instead, the key to reconciling these cases lies in the common definition of a
flood as an overflow from a body of water. Thus, when the inundation results from the
overflow of a body of water, whether natural or artificial, the event is a flood.
Conversely, if the inundation does not arise from the overflow of a body of water, as
when a water main breaks, the event is not a flood.
Second, the amount of water generally released from a broken water main is not
comparable to the massive inundation of water that occurred when the levees in New
Orleans ruptured. Cf. Kane, 768 P.2d at 681 (distinguishing water-main cases on the
basis that the amount of water released from a broken water main is “less clearly an
inundation or deluge” (quotation marks omitted)). A broken water main or other pipe
is a flood. See Popkin, 48 A.D.2d at 48, 367 N.Y.S.2d 492 (concluding that flood
exclusion does not encompass water-main break because the term “flood” “connotes an
inundation; a deluge”).
Third, and most important, unlike water mains, levees are flood-control structures, which
by definition means that they interact with floodwaters. Because levees are man-made,
floodwaters to be diverted downstream to another area of land, the resulting flood
downstream occurs because the levee performs as designed. Any time a flooded
watercourse encounters a man-made levee, a non-natural component is injected into the
flood, but that does not cause the floodwaters to cease being floodwaters. Cf. Smith v.
Union Auto. Indem. Co., 323 Ill.App.3d 741, 257 Ill.Dec. 81, 752 N.E.2d 1261, 1267
effective).
[30] Link to KeyCite Notes[31] Link to KeyCite Notes The plaintiffs additionally
contend that the canons of construction known as noscitur a sociis and ejusdem generis
support the proposition that the term “flood” is limited to purely natural events. FN25
Although we have concluded that the distinction between natural and non-natural events
Under the canon of ejusdem generis, “where general words follow the enumeration of
particular classes of persons or things, the general words will be construed as applicable
only to persons or things of the same general nature or class as those enumerated.” First
Am. Title Ins. Co. v. First Trust Nat'l Ass'n (In re Biloxi Casino Belle Inc.), 368 F.3d
491, 500 (5th Cir.2004); see also Black's Law Dictionary 556 (8th ed.2004). The
naturally occurring earth movements. See Couch, supra, at § 153:66; Murray v. State
Farm Fire & Cas. Co., 203 W.Va. 477, 509 S.E.2d 1, 9 (1998).
We disagree that the other terms in the exclusion necessarily refer to natural events. For
example, a “surface water” exclusion has been held to bar coverage where the inadequate
design of a drainage system caused water to accumulate rather than drain away, resulting
both natural and non-natural events, the canon of noscitur a sociis does not support the
plaintiffs' proposed limitation of the term “flood.” And ejusdem generis is not at all
applicable in interpreting “flood” in the exclusions before us. This canon is used to
interpret general terms (e.g., “and the like”) following a list of specific terms. See First
Am. Title Ins. Co., 368 F.3d at 500. But “flood” is not a general term; it is one of the
used to defeat the obvious purpose or plain meaning of the text”); Schenkel & Shultz,
Inc. v. Homestead Ins. Co., 119 F.3d 548, 551 (7th Cir.1997) (“We cannot use the
doctrine [of noscitur a sociis] to create uncertainty in an otherwise unambiguous term
....”).
[32] Link to KeyCite Notes The plaintiffs finally contend that the reasonable
unambiguous.” Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 522 (5th
Cir.2005). As we have explained, the flood exclusions in the policies are unambiguous in
the context of the specific facts of this case; thus, we need not resort to ascertaining a
reasonable policyholder's expectations. For the sake of thoroughness, however, we will
briefly address a few of the parties' arguments.
risk policies do generally extend to all fortuitous losses, this is true only to the extent that
the policy does not expressly exclude the loss from coverage. See Alton Ochsner Med.
Found., 219 F.3d at 504. Each policy in this case contains a specific provision expressly
excluding damage caused by flood, and none of the exclusions indicates that whether a
particular flood is excluded depends on whether its cause is purely natural. Given the
materially similar to the following, from Humphreys's policy with Encompass Indemnity:
We will pay only that part of the total of the loss for all Property Coverages that exceeds
the hurricane deductible stated on the Coverage Summary. The hurricane deductible
shown on the Coverage Summary applies to all covered property for direct physical loss
or damage caused directly or indirectly by a hurricane as defined below. Such deductible
be a hurricane by the National Weather Service ....
....
All other provisions of this policy apply.
The plaintiffs assert that in light of this language, a reasonable policyholder would have
expected the water damage in this case to be covered. Humphreys goes a step further and
definition of “hurricane.” Further, the endorsements state that all other provisions of the
policies apply, indicating that the flood exclusions remain in effect. The hurricane-
deductible endorsements therefore would not give a reasonable policyholder the
impression that flood resulting from a breached levee would be covered.
Finally, several defendantsFN26 argue that in light of flood insurance available though
natural, and that property owners who want flood coverage must purchase it through the
NFIP; a reasonable policyholder thus would not expect the inundation of water in this
case to be covered under a standard homeowners, renters, or commercial-property
insurance policy.
FN26. Specifically, Standard, Hanover, Great Northern, and the ISO Defendants make
We do not rely upon the NFIP to decide this appeal. Our decision is based instead upon
our determination that the flood exclusions in the policies before us unambiguously
preclude the plaintiffs' recovery. But to the extent that the NFIP's definition of “flood” is
further evidence of the term's generally prevailing meaning, we note that it is consistent
with our interpretation. Standard insurance policies issued under the NFIP define “flood”
c. Mudflow.
44 C.F.R. Pt. 61, App. A(1), App. A(2), App. A(3) (2006); see also Federal Emergency
Management Agency, FloodSmart.gov: What is a Flood?, http:// www. floodsmart. gov/
floodsmart/ pages/ whatflood. jsp (last visited July 25, 2007). The NFIP makes no
distinction between inundations of water caused by natural levee ruptures and those
through the City of New Orleans overflowed their normal boundaries. The flood-control
measures, i.e., levees, that man had put in place to prevent the canals' floodwaters from
reaching the city failed. The result was an enormous and devastating inundation of water
into the city, damaging the plaintiffs' property. This event was a “flood” within that
term's generally prevailing meaning as used in common parlance, and our interpretation
Lastly we turn to the doctrine of efficient proximate cause. Under this doctrine, as it is
applied in many jurisdictions, where a loss is caused by a combination of a covered risk
and an excluded risk, the loss is covered if the covered risk was the efficient proximate
cause of the loss.FN28 See, e.g., Chadwick v. Fire Ins. Exch., 17 Cal.App.4th 1112, 21
Cal.Rptr.2d 871, 873 (1993); Kish v. Ins. Co. of N. Am., 125 Wash.2d 164, 883 P.2d
provided coverage only for loss caused by windstorm) that “if a windstorm is the
dominant and efficient cause of the loss, the insured may recover notwithstanding that
another cause or causes contributed to the damage suffered.” Lorio v. Aetna Ins. Co., 255
La. 721, 232 So.2d 490, 493 (1970); see also Roach-Strayhan-Holland Post No. 20, Am.
Legion Club, Inc. v. Continental Ins. Co. of N.Y., 237 La. 973, 112 So.2d 680, 683
indirectly by” flood “regardless of any other cause or event contributing concurrently or
in any sequence to the loss.” This language, which the district court referred to as an anti-
concurrent-causation clause, has been recognized as demonstrating an insurer's intent to
contract around the operation of the efficient-proximate-cause rule. See, e.g., TNT Speed
& Sport Ctr., Inc. v. Am. States Ins. Co., 114 F.3d 731, 732-33 (8th Cir.1997).
LEXIS 34710 (S.D.Miss. May 24, 2006) (unpublished opinion) (Hurricane Katrina case
involving alleged damage from wind, rain, and storm surge), appeal docketed, Nos. 06-
61075 & 06-61076 (5th Cir.). Instead, the court stated that “in this case the ‘cause’
conflates to the flood,” meaning that the alleged negligent design, construction, or
maintenance of the levees and the resulting flood were not separate causes of the
causation clauses were inapplicable,” contending that the cause of their damage (“man-
made inundation of water or inundation resulting from third-party negligent acts”) was a
covered peril.FN29 Xavier responds that the district court “correctly noted that [the anti-
concurrent-causation clause] is inapplicable because there is no separate or other cause of
damage.”
more distinct actions, events, or forces combined to create the loss. See Pieper v.
Commercial Underwriters Ins. Co., 59 Cal.App.4th 1008, 69 Cal.Rptr.2d 551, 557 (1997)
(“For the efficient proximate cause theory to apply, ... there must be two separate or
distinct perils ....”); Kish, 883 P.2d at 311 (“The efficient proximate cause rule applies
only where two or more independent forces operate to cause the loss.”). But here, on
inapplicable. See Chadwick, 17 Cal.App.4th at 1117, 21 Cal.Rptr.2d 871 (“When,
however, the evidence shows the loss was in fact occasioned by only a single cause,
albeit one susceptible to various characterizations, the efficient proximate cause analysis
has no application.”); see also Cornhusker Cas. Co. v. Farmers Mut. Ins. Co., 268 Neb.
168, 680 N.W.2d 595, 601-02 (2004); Kish, 883 P.2d at 311.
would be largely meaningless.” Chadwick, 21 Cal.Rptr.2d at 874. Thus, in Pieper v.
Commercial Underwriters Insurance Co., where a policy covered loss caused by arson
but excluded loss caused by brush fire, a brush fire caused by arson was excluded. 69
Cal.Rptr.2d at 557-58. The Pieper court determined that the cause of the brush fire was
irrelevant; the plaintiffs' property was damaged by one cause alone, brush fire, and thus,
reject any attempt on the plaintiffs' part to avoid the operation of the flood exclusion by
recharacterizing the flood as negligence; the sole cause of the losses for which they seek
coverage in this litigation, flood, was excluded from coverage regardless of what factors
contributed to its development.
In sum, we need not address the applicability of anti-concurrent-causation clauses or the
for judgment on the pleadings is AFFIRMED. The denial of the motions for judgment on
the pleadings filed by Hanover and Standard Fire is VACATED and REMANDED.
With respect to the Xavier action, the motion to certify questions to the Louisiana
Supreme Court is DENIED. The district court's grant of partial summary judgment in
favor of Xavier is VACATED and REMANDED.
With respect to the Humphreys action, the district court's denial of Humphreys's partial-
summary-judgment motion on the question of coverage under the policy's hurricane-
deductible endorsement is AFFIRMED. The grant of partial summary judgment in
Humphreys's favor on the question of the interpretation of the policy's flood exclusion is
VACATED and REMANDED.
Motions DENIED; AFFIRMED in part, VACATED in part, and REMANDED for
further proceedings consistent with this opinion. The appellees shall bear the cost of this
appeal.
FN20. Xavier points to the mentioning of “Act of God” in the sixth edition of Black's
Law Dictionary's definition of “flood” as authority for limiting floods to natural events.
Since an “Act of God” is “[a]n act occasioned exclusively by forces of nature without the
interference of any human agency,” Black's Law Dictionary 33 (6th ed.1990), Xavier
context of an enormous hurricane, and it thus had a significant natural component.
The plaintiffs next rely heavily on a line of cases, arising in the context of broken water
mains, holding that the term “flood” in a policy's exclusion was ambiguous based on a
distinction between natural and non-natural events. For example, in Ferndale
Development Co. v. Great American Insurance Co., a Colorado intermediate court
water main”). Similarly, a New York intermediate court held that a flood exclusion did
not apply in the context of a broken water main because the term “flood” “connotes an
inundation; a deluge.” Popkin v. Sec. Mut. Ins. Co. of N.Y., 48 A.D.2d 46, 48, 367
N.Y.S.2d 492 (N.Y.App.Div.1975). That court also opined that even if the term “flood”
is to be read broadly so as to include any “great quantity” of water, the term should be
Mellon v. Hingham Mut. Fire Ins. Co., 19 Mass.App.Ct. 933, 472 N.E.2d 674, 675
(1984) (concluding that exclusion for “water below the surface of the ground” did not
exclude damage from drainage pipe's rupture because the “loss was caused by an
accidental break rather than a natural occurrence” and, as a fortuity, was “the kind of risk
an ‘all risk’ policy is designed to cover”).FN21
Couch, supra, at § 153:65 (collecting cases); see also id. §§ 153:66-:67; Fayad v.
Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1086-89 (Fla.2005); Murray, 509 S.E.2d at 4-
5, 10; Peach State Uniform Serv., Inc. v. Am. Ins. Co., 507 F.2d 996, 1000 (5th Cir.1975)
(applying Georgia law).
We do not question the holdings or the rationale of the earth-movement cases. But the
Although we do not quibble with the results reached in the water-main cases, we do not
believe that a distinction between natural and non-natural causes is applicable in this
context. First, unlike a canal, a water main is not a body of water or watercourse. Many
(although not all) dictionary definitions define “flood” as an overflow or inundation of a
body of water or watercourse. FN22 Likewise, Appleman's treatise observes that flood
(distinguishing between rupture of water main and overflow of watercourse, regardless of
whether the watercourse was originally man-made or forged from nature). Couch on
Insurance recognizes a distinction between water-main breaks and the overflow of a body
of water and opines that the body-of-water delineation is more useful than the
natural/non-natural distinction in determining whether an event is a flood:
been maintained for a sufficient length of time. Black's Law Dictionary 1623 (8th
ed.2004); see also Wallis v. Country Mut. Ins. Co., 309 Ill.App.3d 566, 243 Ill.Dec. 344,
723 N.E.2d 376, 382 (2000) (stating that a permanent watercourse with a defined bed,
visible banks, and a recurrent water flow is considered natural, even if it was originally
man-made).
distinction. Instead, the key to reconciling these cases lies in the common definition of a
flood as an overflow from a body of water. Thus, when the inundation results from the
overflow of a body of water, whether natural or artificial, the event is a flood.
Conversely, if the inundation does not arise from the overflow of a body of water, as
when a water main breaks, the event is not a flood.
Second, the amount of water generally released from a broken water main is not
comparable to the massive inundation of water that occurred when the levees in New
Orleans ruptured. Cf. Kane, 768 P.2d at 681 (distinguishing water-main cases on the
basis that the amount of water released from a broken water main is “less clearly an
inundation or deluge” (quotation marks omitted)). A broken water main or other pipe
is a flood. See Popkin, 48 A.D.2d at 48, 367 N.Y.S.2d 492 (concluding that flood
exclusion does not encompass water-main break because the term “flood” “connotes an
inundation; a deluge”).
Third, and most important, unlike water mains, levees are flood-control structures, which
by definition means that they interact with floodwaters. Because levees are man-made,
floodwaters to be diverted downstream to another area of land, the resulting flood
downstream occurs because the levee performs as designed. Any time a flooded
watercourse encounters a man-made levee, a non-natural component is injected into the
flood, but that does not cause the floodwaters to cease being floodwaters. Cf. Smith v.
Union Auto. Indem. Co., 323 Ill.App.3d 741, 257 Ill.Dec. 81, 752 N.E.2d 1261, 1267
effective).
[30] Link to KeyCite Notes[31] Link to KeyCite Notes The plaintiffs additionally
contend that the canons of construction known as noscitur a sociis and ejusdem generis
support the proposition that the term “flood” is limited to purely natural events. FN25
Although we have concluded that the distinction between natural and non-natural events
Under the canon of ejusdem generis, “where general words follow the enumeration of
particular classes of persons or things, the general words will be construed as applicable
only to persons or things of the same general nature or class as those enumerated.” First
Am. Title Ins. Co. v. First Trust Nat'l Ass'n (In re Biloxi Casino Belle Inc.), 368 F.3d
491, 500 (5th Cir.2004); see also Black's Law Dictionary 556 (8th ed.2004). The
naturally occurring earth movements. See Couch, supra, at § 153:66; Murray v. State
Farm Fire & Cas. Co., 203 W.Va. 477, 509 S.E.2d 1, 9 (1998).
We disagree that the other terms in the exclusion necessarily refer to natural events. For
example, a “surface water” exclusion has been held to bar coverage where the inadequate
design of a drainage system caused water to accumulate rather than drain away, resulting
both natural and non-natural events, the canon of noscitur a sociis does not support the
plaintiffs' proposed limitation of the term “flood.” And ejusdem generis is not at all
applicable in interpreting “flood” in the exclusions before us. This canon is used to
interpret general terms (e.g., “and the like”) following a list of specific terms. See First
Am. Title Ins. Co., 368 F.3d at 500. But “flood” is not a general term; it is one of the
used to defeat the obvious purpose or plain meaning of the text”); Schenkel & Shultz,
Inc. v. Homestead Ins. Co., 119 F.3d 548, 551 (7th Cir.1997) (“We cannot use the
doctrine [of noscitur a sociis] to create uncertainty in an otherwise unambiguous term
....”).
[32] Link to KeyCite Notes The plaintiffs finally contend that the reasonable
unambiguous.” Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 522 (5th
Cir.2005). As we have explained, the flood exclusions in the policies are unambiguous in
the context of the specific facts of this case; thus, we need not resort to ascertaining a
reasonable policyholder's expectations. For the sake of thoroughness, however, we will
briefly address a few of the parties' arguments.
risk policies do generally extend to all fortuitous losses, this is true only to the extent that
the policy does not expressly exclude the loss from coverage. See Alton Ochsner Med.
Found., 219 F.3d at 504. Each policy in this case contains a specific provision expressly
excluding damage caused by flood, and none of the exclusions indicates that whether a
particular flood is excluded depends on whether its cause is purely natural. Given the
materially similar to the following, from Humphreys's policy with Encompass Indemnity:
We will pay only that part of the total of the loss for all Property Coverages that exceeds
the hurricane deductible stated on the Coverage Summary. The hurricane deductible
shown on the Coverage Summary applies to all covered property for direct physical loss
or damage caused directly or indirectly by a hurricane as defined below. Such deductible
be a hurricane by the National Weather Service ....
....
All other provisions of this policy apply.
The plaintiffs assert that in light of this language, a reasonable policyholder would have
expected the water damage in this case to be covered. Humphreys goes a step further and
definition of “hurricane.” Further, the endorsements state that all other provisions of the
policies apply, indicating that the flood exclusions remain in effect. The hurricane-
deductible endorsements therefore would not give a reasonable policyholder the
impression that flood resulting from a breached levee would be covered.
Finally, several defendantsFN26 argue that in light of flood insurance available though
natural, and that property owners who want flood coverage must purchase it through the
NFIP; a reasonable policyholder thus would not expect the inundation of water in this
case to be covered under a standard homeowners, renters, or commercial-property
insurance policy.
FN26. Specifically, Standard, Hanover, Great Northern, and the ISO Defendants make
We do not rely upon the NFIP to decide this appeal. Our decision is based instead upon
our determination that the flood exclusions in the policies before us unambiguously
preclude the plaintiffs' recovery. But to the extent that the NFIP's definition of “flood” is
further evidence of the term's generally prevailing meaning, we note that it is consistent
with our interpretation. Standard insurance policies issued under the NFIP define “flood”
c. Mudflow.
44 C.F.R. Pt. 61, App. A(1), App. A(2), App. A(3) (2006); see also Federal Emergency
Management Agency, FloodSmart.gov: What is a Flood?, http:// www. floodsmart. gov/
floodsmart/ pages/ whatflood. jsp (last visited July 25, 2007). The NFIP makes no
distinction between inundations of water caused by natural levee ruptures and those
through the City of New Orleans overflowed their normal boundaries. The flood-control
measures, i.e., levees, that man had put in place to prevent the canals' floodwaters from
reaching the city failed. The result was an enormous and devastating inundation of water
into the city, damaging the plaintiffs' property. This event was a “flood” within that
term's generally prevailing meaning as used in common parlance, and our interpretation
Lastly we turn to the doctrine of efficient proximate cause. Under this doctrine, as it is
applied in many jurisdictions, where a loss is caused by a combination of a covered risk
and an excluded risk, the loss is covered if the covered risk was the efficient proximate
cause of the loss.FN28 See, e.g., Chadwick v. Fire Ins. Exch., 17 Cal.App.4th 1112, 21
Cal.Rptr.2d 871, 873 (1993); Kish v. Ins. Co. of N. Am., 125 Wash.2d 164, 883 P.2d
provided coverage only for loss caused by windstorm) that “if a windstorm is the
dominant and efficient cause of the loss, the insured may recover notwithstanding that
another cause or causes contributed to the damage suffered.” Lorio v. Aetna Ins. Co., 255
La. 721, 232 So.2d 490, 493 (1970); see also Roach-Strayhan-Holland Post No. 20, Am.
Legion Club, Inc. v. Continental Ins. Co. of N.Y., 237 La. 973, 112 So.2d 680, 683
indirectly by” flood “regardless of any other cause or event contributing concurrently or
in any sequence to the loss.” This language, which the district court referred to as an anti-
concurrent-causation clause, has been recognized as demonstrating an insurer's intent to
contract around the operation of the efficient-proximate-cause rule. See, e.g., TNT Speed
& Sport Ctr., Inc. v. Am. States Ins. Co., 114 F.3d 731, 732-33 (8th Cir.1997).
LEXIS 34710 (S.D.Miss. May 24, 2006) (unpublished opinion) (Hurricane Katrina case
involving alleged damage from wind, rain, and storm surge), appeal docketed, Nos. 06-
61075 & 06-61076 (5th Cir.). Instead, the court stated that “in this case the ‘cause’
conflates to the flood,” meaning that the alleged negligent design, construction, or
maintenance of the levees and the resulting flood were not separate causes of the
causation clauses were inapplicable,” contending that the cause of their damage (“man-
made inundation of water or inundation resulting from third-party negligent acts”) was a
covered peril.FN29 Xavier responds that the district court “correctly noted that [the anti-
concurrent-causation clause] is inapplicable because there is no separate or other cause of
damage.”
more distinct actions, events, or forces combined to create the loss. See Pieper v.
Commercial Underwriters Ins. Co., 59 Cal.App.4th 1008, 69 Cal.Rptr.2d 551, 557 (1997)
(“For the efficient proximate cause theory to apply, ... there must be two separate or
distinct perils ....”); Kish, 883 P.2d at 311 (“The efficient proximate cause rule applies
only where two or more independent forces operate to cause the loss.”). But here, on
inapplicable. See Chadwick, 17 Cal.App.4th at 1117, 21 Cal.Rptr.2d 871 (“When,
however, the evidence shows the loss was in fact occasioned by only a single cause,
albeit one susceptible to various characterizations, the efficient proximate cause analysis
has no application.”); see also Cornhusker Cas. Co. v. Farmers Mut. Ins. Co., 268 Neb.
168, 680 N.W.2d 595, 601-02 (2004); Kish, 883 P.2d at 311.
would be largely meaningless.” Chadwick, 21 Cal.Rptr.2d at 874. Thus, in Pieper v.
Commercial Underwriters Insurance Co., where a policy covered loss caused by arson
but excluded loss caused by brush fire, a brush fire caused by arson was excluded. 69
Cal.Rptr.2d at 557-58. The Pieper court determined that the cause of the brush fire was
irrelevant; the plaintiffs' property was damaged by one cause alone, brush fire, and thus,
reject any attempt on the plaintiffs' part to avoid the operation of the flood exclusion by
recharacterizing the flood as negligence; the sole cause of the losses for which they seek
coverage in this litigation, flood, was excluded from coverage regardless of what factors
contributed to its development.
In sum, we need not address the applicability of anti-concurrent-causation clauses or the
for judgment on the pleadings is AFFIRMED. The denial of the motions for judgment on
the pleadings filed by Hanover and Standard Fire is VACATED and REMANDED.
With respect to the Xavier action, the motion to certify questions to the Louisiana
Supreme Court is DENIED. The district court's grant of partial summary judgment in
favor of Xavier is VACATED and REMANDED.
With respect to the Humphreys action, the district court's denial of Humphreys's partial-
summary-judgment motion on the question of coverage under the policy's hurricane-
deductible endorsement is AFFIRMED. The grant of partial summary judgment in
Humphreys's favor on the question of the interpretation of the policy's flood exclusion is
VACATED and REMANDED.
Motions DENIED; AFFIRMED in part, VACATED in part, and REMANDED for
further proceedings consistent with this opinion. The appellees shall bear the cost of this
appeal.
