Analyzing Concurrent Causation: Independence is the Key

The concurrent causation doctrine has been adopted by a majority of states. A question of concurrent causation arises where a liability insurance policy provides coverage for an accident caused jointly by an insured risk and by an excluded risk. Concurrent causation issues typically arise in cases involving automobile accidents where the question is whether coverage is triggered under both the automobile liability policy and a corresponding homeowners’ policy. Coverage is typically found to exist under the automobile liability policy and the remaining question is whether the homeowners’ policy automobile exclusion eliminates the coverage obligation under the homeowners’ policy.

Generally, courts will apply auto exclusions in homeowners’ policies where there is a causal connection between the use of an insured auto and the injury. However, in those cases where the use of the insured vehicle was only incidental to the event that produced liability, the courts may not necessarily enforce the auto exclusion. The courts may find that the auto exclusion is not applicable.

The hallmark of a concurrent causation analysis is the so-called “theory of pleadings” approach to coverage issues. The “theory of pleadings” rule has been criticized in numerous jurisdictions. Under this approach, claimants will typically argue ancillary theories of liability associated with the vehicle use, i.e., negligent entrustment, negligent supervision or negligent training in the use of the automobile. The flaw in this approach is that coverage does not turn on the legal theory under which liability is asserted, but on the cause of the injury, or the instrumentality causing the injury. This principle is best illustrated by those situations where negligent supervision or negligent entrustment of the automobile has been alleged.

Although negligent entrustment or supervision claims are not founded on the negligence of the driver of the automobile, the manifestation of the incompetency of the user is an essential element of the negligent entrustment or supervision action. But for the incompetent driver’s misconduct in the use of the automobile, no liability could result to the entrustor or supervisor. Regardless of the legal theory relied upon; the essential triggering element giving rise to the tort is the use of the chosen instrumentality. Negligent use of the instrumentality, i.e., the excluded automobile, is the foundational element upon which claim of negligent entrustment or supervision is based. Negligent entrustment does nothing more than create a dangerous condition from which reasonable men might conclude greater care in the automobile’s subsequent handling was required. Because there would be no accident without the use or operation of the automobile, the exclusion clearly applies irrespective of the form of pleading.

The foregoing principles were used by the California Court of Appeals recently in Farmers Ins. Exchange v. Superior Court, 220 Cal.App.4th, 1199, 163 Cal.Rptr.3d 609 (2013). In Farmers Ins. Exchange, the insured’s granddaughter, Valerie, who was less than two years old, was killed in the driveway of the grandparents’ house when the grandfather, Jose Bautista, ran over the granddaughter with his pickup truck. The grandmother, Sara Bautista, routinely allowed the grandchildren to greet Jose at his truck when he came home. The grandmother knew that she needed to take extra precautions and supervise the grandchildren when they went to greet Jose, to keep them out of what the grandparents called the “zone of danger.” On the day of the accident, Valerie got out of the house without Sara knowing it, and walked in front of Jose’s truck and was run over.

The parents of Valerie brought a lawsuit alleging negligent operation of the truck and negligent supervision. Farmers settled the auto claim. The issue then was whether the homeowners’ policy also provided coverage notwithstanding the policy’s automobile exclusion. The California Court of Appeals held that the auto exclusion was applicable, notwithstanding the allegation of negligent supervision. In doing so, the Court noted that the excluded instrumentality – the truck – played an active role in causing the injury. The Court also found that the alleged negligent supervision did not constitute an independent concurring cause of the fatal injuries.

Turning to the facts, the Court began its analysis by recognizing that Sara’s supervision was negligent only because it exposed Valerie to the danger of automobile use. Sara’s alleged negligence was in allowing Valerie to be out of the house in the so-called “zone of danger” which was created when Jose came home in his truck. Thus, Sara’s negligent supervision consisted of allowing Valerie to become exposed to the specific hazard created by the arrival of Jose in his truck. According to the Court, the parents’ claim was not that Sara’s negligence “allowed the children to be exposed to one of a number of dangers, such as the danger of wandering away and becoming lost, abduction by strangers in the neighborhood, or even collisions with cars driving down the street” but that Sara’s only negligence “was to expose [Valerie] to the known danger of Jose’s use of the truck.” None of the alleged negligent supervision existed independently of Jose’s use of the truck. The negligent supervision of Valerie was separate from the use of the truck only in terms of time and could not be disassociated from the truck use itself. Had Sara’s failure to supervise Valerie occurred at any other time, Valerie would not have been exposed to the risk of Jose’s truck arriving home. As such, the non-vehicular negligence associated with failing to supervise Valerie could only have occurred at the time, place and manner of Jose’s vehicle negligence: in the grandparents’ driveway when Jose came home from work.

The Court in Farmers Ins. Exchange concluded that Sara’s negligent supervision of Valerie did not exist independent of the use of the truck and that the motor vehicle exclusion in the homeowners’ policy applied. Sara’s negligence was sufficiently related to Jose’s use of the truck and was part of a course of uninterrupted conduct that fell within the motor vehicle exclusion in the homeowners’ policy.