Bozek v. Erie Insurance Group
46 N.E.3d 362
Ill. App. Ct.2016Background
- Marek and Bozena Bozek submitted a homeowner’s-coverage claim after their in-ground pool heaved out of the ground following rain; Erie insured the property and denied coverage.
- Engineering investigation concluded the pool lifted because (1) the pool had been emptied and (2) the pool’s pressure-relief valve failed to admit groundwater, so underground hydrostatic pressure uplifted the pool.
- Erie relied on policy exclusions for hydrostatic pressure / subsurface water and for certain mechanical failures, and on the policy’s anticoncurrent-causation clause: “We do not pay for loss resulting directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss.”
- The Bozeks argued the valve failure was a covered cause and that, because it occurred before the excluded hydrostatic pressure, the anticoncurrent-causation clause did not apply (they read “in sequence” as meaning subsequent to).
- The trial court granted summary judgment for Erie; the appellate court reviewed de novo and affirmed, holding the valve failure and hydrostatic pressure “contributed concurrently” to the single loss and thus the anticoncurrent-causation clause precluded coverage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether valve failure is a covered cause (vs. excluded mechanical breakdown) | Bozek: Erie didn’t prove the valve’s failure is excluded; treat it as covered | Erie: valve failure may be excluded; but even if covered, exclusion still applies via anticoncurrent clause | Not reached as disposition; court assumed arguendo covered but resolved against plaintiffs on anticoncurrent clause |
| Whether anticoncurrent-causation clause bars coverage where a covered event precedes an excluded event | Bozek: “in sequence” means subsequent to; a covered cause that occurs first vests coverage that a later excluded event cannot defeat | Erie: clause bars coverage whenever an excluded cause contributes concurrently or sequentially; absence of word “any” is immaterial | Held: Clause applies — courts look to when causes contribute to loss; the valve and hydrostatic pressure contributed concurrently, so coverage is barred |
| Proper temporal test for “concurrently” / “in sequence” in clause | Bozek: focus on when cause came into existence (valve failed first) | Erie & Court: focus on when each cause actually contributed to the loss (contribution timing) | Held: Use time of contribution to the loss; here both causes contributed at the same time to the uplifted pool |
| Whether anticoncurrent-causation clauses are unenforceable on public-policy grounds in Illinois | Bozek: clause is oppressive and should be invalidated (cites several out-of-state authorities) | Erie: clause is valid; majority of jurisdictions enforce such clauses | Held: Forfeited by insufficient briefing; court declines to decide public-policy issue |
Key Cases Cited
- South Carolina Farm Bureau Mut. Ins. Co. v. Durham, 671 S.E.2d 610 (S.C. 2009) (upheld anticoncurrent-causation clause to deny coverage for pool uplift caused by hydrostatic pressure plus draining)
- Boazova v. Safety Ins. Co., 968 N.E.2d 385 (Mass. 2012) (discusses enforceability of anticoncurrent-causation clauses; one of minority decisions critical of clause)
- Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704 (Cal. 1989) (discusses proximate-cause principles in coverage disputes)
- American Economy Ins. Co. v. Holabird & Root, 382 Ill. App. 3d 1017 (Ill. App. Ct. 2008) (discusses efficient-or-dominant-proximate-cause rule in Illinois)
- American States Ins. Co. v. Koloms, 177 Ill. 2d 473 (Ill. 1997) (principles for construing unambiguous policy language and ambiguities against insurer)