Law report: Proximate cause in insurance law . 4�"-��[��WG�o�5�,�c{..���yt�����MZ����ͯ���x\��o�5t���V����ߗ�%���xF"m����k�yf�76�m�z1�y�͗�S��p�ArD#�f�N�ss+eO���d�I�ddlȇm�o��9KBbD=z�/�-�>1�Z�"s���p�. 423 (1989). While suing that individual, one will have to prove that the negligence was the actual or proximate cause of the injury. Example: Boiling Enamel. 0000003637 00000 n 0000001479 00000 n 12.Fire Insurance 1. Proximate cause, or the Latin Causa Proxima, relates to the cause of the loss in that the event of the peril insured against must be covered under the insurance contract (policy), and the dominant cause of the event must not be excluded. Proximate Cause 11 5. Washington courts had never previously engaged in an efficient proximate cause analysis outside the context of property insurance policies, and with good reason. It is hard to disagree. The possible defense that you may raise is the proper application of the “Proximate Cause Doctrine” in our Criminal law. endstream endobj 35 0 obj <> endobj 36 0 obj <> endobj 37 0 obj <>/Font<>/ProcSet[/PDF/Text]/ExtGState<>>>/Type/Page>> endobj 38 0 obj [/ICCBased 51 0 R] endobj 39 0 obj <> endobj 40 0 obj <>stream The definition of the “cause” was under test in many cases and was mentioned clearly in the Marine Insurance Act 1906 in its section 55 that the cause should be proximate, as follows: 1. Proximate cause refers to the first event, or first peril, in a series of events that cause damage in an insurance claim. Beale, 33 Harv.L.R. A similar view was expressed in Incorporated General Insurances Ltd v Shooter 1987(1) SA842(A) at 862D: 0000005882 00000 n 0000001444 00000 n London: The Solicitors' Law Stationery Society, Ltd.1927. INSURANCE: THE PROXIMATE CAUSE IN ENGLISH LAW Malcolm Clarke The proximate cause, whether an event covered by a policy (" peril") or an event excluded from a policy (" exception "), " is the dominant or effective or operative cause." "doctrine of efficient proximate cause." While the efficient proximate cause is said to set into motion a chain of events, it is not necessarily the triggering cause, rather it is the predominating cause. 2 In Boon , the policy covered certain goods in a store building. Auto. Marine losses 32 5. For more information, please contact sculawlibrarian@gmail.com. The important point to consider here is that proximate cause is the only nearest cause and not the remote cause. 7. Until recent past the Principle of proximate cause was not used to be considered as a principle as such. Difficult situations do occur where numbers of perils get involved simultaneously, some insured, some uninsured and some still accepted. In accident benefits policy, double of the policy amount is paid. Proximate Cause — (1) The cause having the most significant impact in bringing about the loss under a first-party property insurance policy, when two or more independent perils operate at the same time (i.e., concurrently) to produce a loss. Single Event. Ganado Advocates Tuesday, 16 January 2018, 11:38 Last update: about 4 years ago. Essentially, the proximate cause in law should not remain as a mere open question of fact. If a suicide occurs within one year of the policy, or there was an intention to commit suicide arid the payment of policy would be restricted, only up to the interest of the third party in the policy provided the interest was expressed at least one month before the suicide. 34 20 At common law the general principle then was that if there are two or more proximate causes, but that one of those causes was excluded under the policy then the insurer is not liable to indemnify the insured for the loss, notwithstanding that the other cause of the loss is not an excluded loss and falls within the ambit of the policy coverage. In Washington, a judicial doctrine called the “efficient proximate cause” rule may apply and affect insurance coverage when multiple events combine to cause a loss. (iii) ordinary wear and tear, ordinary leakage and breakage inherent vice or nature of the subject matter insured, or any loss proximately caused by rates or vermin or any injury to machinery not proximately caused by maritime perils. It is also hard to understand what it means and hence hard to apply it. This is where the doctrine of proximate cause helps. 0000001592 00000 n A learned judge, therefore, rightfully commented with confidence, “if you want to find out the proximate cause, do not ask a scientist or a lawyer, ask a man from the street. It may be natural or unnatural. The law of causation is a prime example of the information few people know about and even fewer use when purchasing insurance. A man goes to a late-night cinema and whilst returning home from the show he is attacked by a group of vandals, stabbed and killed. While the efficient proximate cause is said to set into motion a chain of events, it is not necessarily the triggering cause, rather it is the predominating cause. The Risk 13 6. To give an example, let us take 10 bricks arranged in a lined standing order one after another keeping a gap of say 6 Inches in between. The maxim is, “Causa Proxima no remote spectator”. The principle of proximate cause virtually revolves around the claims administration and, more precisely, diagnosing the playability or otherwise of a claim on the question of perils covered by a policy. The insurer will not be liable for any loss caused by delay unless otherwise provided. Proximate cause can be direct, dominant, effective, immediate cause. It is not a model of clarity. The proximate cause of our man’s death is the collision and certainly no scratches. H��V�j1��Wx]ǖ�Ǭ�誅�E? The modern legal doctrine seems to be narrower and more definite in its application than some of the older expressions of the con- Aspen Law and Business. Total & Constructive loss 30 4. More so, the position gets further complicated when an insured peril is followed up by an excepted peril or an excepted peril is followed up by an insured peril, simultaneously getting mixed up by uninsured perils. Here the proximate cause of falling off the last brick is certainly the kick because the strength of the kick was such that it could effectively make the last brick fall without the intervention of any new force started. This means understanding if the injury would occur but for the action or lapse of the defendant. Types of Policies 34 6. Probably his answer will be the correct one”. The proximate cause is essentially that initial event that triggered the claim and need not be the event that immediately preceded the loss. In insurance cases the policy enumerates and thus highlights the possible causes to which attention should be given. Here, going to the cinema may be simply a remote cause without proximately causing his death. It was decided by per Bingham L J in T M Noten BV v Harding that the proximate cause of the damage is determined by the application of common sense od a business. The proximate cause, whether an event covered by a policy (“peril”) or an event excluded from a policy (“exception”), “is the dominant or effective or operative cause.” So says MacGillivray and Parkington.1 So say the courts. To take another example, a man falls from a ladder at a low height and scratches his leg a little. It is important that courts establish proximate cause in personal injury cases because not everyone nor everything that causes an injury can be held legally liable. 0000007141 00000 n If, in the same example, it so happens that from mid-journey of the fire somebody lights a candlestick, carries this fire and sets the property of somebody under fire then that resultant fire shall be accidental fire or malicious fire and certainly not earthquake fire as the chain of events has been broken by a new and independent force, which is active, efficient and potent enough to bring about the result. 0000004739 00000 n Maybe the cyclone has accelerated the speed of sinking and it can simply be regarded as a remote cause. INSURANCE: THE PROXIMATE CAUSE IN ENGLISH LAW Malcolm Clarke The proximate cause, whether an event covered by a policy (" peril") or an event excluded from a policy (" exception "), " is the dominant or effective or operative cause." Knowledge of Agent. 29 Jul 2020. It was held that the proximate cause of the sinking of the ship was torpedo (Leyland Shipping Co. V. Norwich Union Fire Insurance Society, 1918). Due to the prevailing wind, the fire spreads gradually to neighboring buildings one after another and ultimately sets the insured building into the fire. It looks for what is the reason behind the loss, is that is an insured peril or not. x�b```b``fa`a``�� �� �l@q������4�l��d�v� X���M��� � In MacGillivray on Insurance Law (11th Ed, 19-001, page 513) it is said that “A proximate cause is not the first, or the last or the sole cause of the loss: it is the dominant or effective or operative cause”. Reinsurance & Retention 25 8. Only premium paid or surrender value whichever is higher is payable and the total policy amount is not payable. Determining Proximate Cause Through Different Rules. (Price 2s. The principle of proximate cause has been established to solve such a cumbersome situation and to enable a claims manager to decide whether a claim is at all payable or not and if payable, then to what extent. This is so because throughout the spread and travel, with the help of natural wind, the fire retains its identity as an earthquake fire. 0000007930 00000 n By the Hon. "doctrine of efficient proximate cause." By using these two words, the insurers have intentionally waived the application of the rule of proximate cause. The doctrine is deeply rooted in outdated and obsolete models of causation in tort law, some notably prom-ulgated by Dean William L. Prosser and fixed in the Second Restatement of Torts while he served as its Reporter. 53 0 obj <>stream Immediate or proximate means Proximate inefficiency and not necessarily in time. Let us, however, assume that as a result of the kick only 6 bricks fall but suddenly a man throws a stone on the 7th brick and gradually falls the 7th, 8th, 9th, and 10th brick. 42, 1939). Therefore, the cause of death in this policy is of paramount importance. Example: Boiling Enamel. The insurer will be liable for any loss proximately caused by a peril insured against. Let us take another example. For instance, one doctrine (a version of efficient proximate cause) raises this conundrum regarding business interruption coverag… <]>> A similar view was expressed in Incorporated General Insurances Ltd v Shooter 1987(1) SA842(A) at 862D: “No difficulty arises when only one cause has to be considered. It contained a provision exempting the insurer from liability for “loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power.” Insurance Glossary Defines: Proximate Cause — (1) ... As a principle of tort law, proximate cause refers to a doctrine by which a plaintiff must prove that the defendant’s actions set in motion a relatively short chain of events that could have reasonably been anticipated to lead to the plaintiff’s damages. proximate cause. That sinking feeling – proximate cause and insurance By Donald Dinnie on January 20, 2020 Posted in Insurance A German appeal court determined, in a marine claim, that the proximate cause of a vessel’s grounding and ultimate sinking after its main engine … 34 0 obj <> endobj There might be multiple causes for the delay but the aptest cause must be looked into. A policy may cover certain perils mentioned specifically therein (known as insured perils), whilst some perils may be specifically excluded (known as excepted perils) and some may still be neither included nor excluded (known as uninsured perils). C ONSISTENT advance in the development of legal doctrines and in their application is impossible without a clear under-standing of elementary definitions and concepts. The insurer is not liable for any loss attributable to the willful misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against. What is this proximate cause then? (This example is based on a Morgan Owen prize paper, C. 1.1, journal No. Marine Insurance Transhipment 1. Proximate cause is used in civil and criminal cases, and are frequent in personal injury legal cases. The consideration is what has brought about the result? DOCTRINE OF PROXIMATE CAUSE . “Proximate cause has been defined as “that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” In the above-mentioned case, the high court citing the case of Urbano vs. The law is comprised of doctrines that are incompatible, vary from jurisdiction to jurisdiction, and lend themselves to “logic chopping.” Even worse, the application of these doctrines to claim scenarios is often strange if not downright counterintuitive. Sometimes the application of the rule of proximate cause may be waived by insurers through policy conditions. SOME OBSERVATIONS ON THE DOCTRINE OF PROXIMATE CAUSE. law, and primarily within the tort of negligence. Because proximate cause is the darling of law professors and bar examiners! Salient features 18 Reinstatement 23 3. The Court then opined that because nothing in the Policy undermined application of concurrent cause doctrine and no efficient proximate cause could be determined, concurrent cause doctrine applied in favour of coverage for the loss. vi) Causa Proxima: In a contract of insurance, the governing rule is the proximate cause to fix the liability of the insurer. The efficient or effective, cause which causes the loss is called proximate cause, it is the actual cause of loss. Finally, the recommended - Volume 3 Issue 2 - W. L. M. By the Hon. California Courts have interpreted California Insurance Code sections 530 and 532 to codify the efficient proximate cause doctrine. Certain quotations may be very helpful to the students at this stage and they should try to realize the implications of such quotations, which would help them in removing some confusion that might occur in their mind about the proximate cause. 0000002527 00000 n 0000014929 00000 n Although, the cyclone was nearer to sinking in time, nevertheless, a torpedo was the active efficient cause, because the ship was so hard hit by a torpedo that it would have sunk. Duffy is in the road construction business, and uses boiling enamel as part of the construction process. The insurance policy may cover the proximate cause, but not the event that actually causes the damage, so the policy holder will not be reimbursed for his claim. 0000001123 00000 n The maxim "causa proxima non rempota spectature." 0000007678 00000 n 0 This section provides a definition of proximate cause and explains how it should be determined in practice. It is not always that much straightforward that a loss would be caused by a singular insured or uninsured or an excepted peril so that a claim would be either payable or not payable. At common law the general principle then was that if there are two or more proximate causes, but that one of those causes was excluded under the policy then the insurer is not liable to indemnify the insured for the loss, notwithstanding that the other cause of the loss is not an excluded loss and falls within the ambit of the policy coverage. Certain states take into consideration the “but for” rule for proximate cause. Where the policy is issued on the exclusion of War and aviation risks, the proximate cause of death is important because the insurer waives its liability if death occurred, in this case, while the insured was in the field or is engaged in the operation of war and aviation. The Efficient Proximate Cause Doctrine in California: Ten Years After Garvey SCOTT G. JOHNSON - Scott G. Johnson is a partner with Robins, Kaplan, Miller & Ciresi L.L.P. It is also hard to understand what it means and hence hard to apply it. Under this rule, in order to determine whether a loss resulted from a cause covered under an insurance policy , a court looks for the predominant cause which sets into motion the chain of events producing the loss, which may not necessarily be the last event that immediately preceded the loss. In this case, the proximate cause of falling the last brick is throwing the stone and not the kick because the kick was not efficient enough to cause the last brick to fall. To uphold and not defeat the intention of the parties to the contract. Causation – the relationship between cause and effect – can play a key role in determining whether a claim is approved or denied, particularly as it relates to commercial property insurance coverage. This is because the insurers have used the word “it’s own” before “spontaneous fermentation” which means that only the property subjected to spontaneous fermentation is excluded but any resultant fire damage is covered. Insurance policies are long, convoluted, and abstruse documents. In case an individual is injured due to someone else’s negligence, one can easily claim damages due to the negligence at the end of that individual. 0000010936 00000 n Proximate cause refers to the first event, or first peril, in a series of events that cause damage in an insurance claim. A problem arises when an insured under an accident policy is killed or suffers an injury, which has an immediate cause and a remote cause. Salient features 27 3. n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. This must be direct, dominant, operative & efficient. From all the examples explained hereinbefore the readers would possibly appreciate that it is indeed the Common Sense that is required most to find out the proximate cause of a result. Let’s work through a fact pattern. Average clause 23 4. It is only by considering some propositions and examples that the doctrine of proximate cause can best be understood. The insurance policy may cover the proximate cause, but not the event that actually causes the damage, so the policy holder will not be reimbursed for his claim. 6d.) Doctrine of Proximate Cause Many policies stipulate that a loss would be excluded only if it results ‘solely’, ‘exclusively’ or ‘directly’ from an excluded peril. According to the law of marine insurance, only the last cause needs to be looked into and others neglected even though the result might have not occurred without them. The "efficient proximate cause" doctrine is often mistakenly referred to as the "concurrent cause" doctrine. A man scratches his leg falling from a ladder. Marine Insurance: The Doctrine of Proximate Cause and Insurance against War Risks at Sea. He is taken to a hospital and in the hospital, he contacts cholera from the next bed patient and dies. DOCTRINE OF PROXIMATE CAUSE In case an individual is injured due to someone else’s negligence, one can easily claim damages due to the negligence at the end of that individual. Somebody gives a kick on the first brick and gradually the last brick in the line also falls. nature of the insurance policy and whether a tort proximate cause analysis should be used in an insurance contract analysis. Here the proximate cause of his death is accident or falling from the horseback, the reason being that injury leading to unconsciousness, exposure to severe cold and then pneumonia are all-natural events developing gradually one after another without really being intervened by a new or independent source (The example is based on a judgment given in ETHERINGTON V. LANCASHIRE AND YORKSHIRE ACCIDENT INSURANCE Co., 1909). For a more detailed discussion, you can read the proximate cause article by Professor Paul Hayden. In this case, scratches may be a remote cause. Double Insurance 35 Chapter 9. Almost immediately there was a cyclonic storm and the ship sank. The doctrine of proximate cause is one of the six principles of insurance. So long the first cause retains its identity and efficiency until the result we may say that it is the proximate cause. 633, 643. The claim is not payable because the proximate cause of loss is earthquake fire and not ordinary fire even though the earthquake had nothing to do with the insured building. Proximate cause in insurance law: Fire following earthquake Alistair McDonald* Insurers use exclusions in material damage policies to define or limit their exposures to losses to commercial property* 1 resulting from earthquake and fire following earthquake. DOCTRINE OF PROXIMATE CAUSE REFERENCES: Luis B. Reyes and Judge Arthur L. Abudiente-----Proximate Cause - that cause, which, in natural … For a more detailed discussion, you can read the proximate cause article by Professor Paul Hayden. 8. ... instances where the doctrine of proximate cause can be applied to a patent infringement . Introduction. 0000000016 00000 n We should not try to find out the cause of causes thereby getting mixed up and complicating the issue. Proximate cause is used in civil and criminal cases, and are frequent in personal injury legal cases. While this has been insisted upon frequently in the past, to-day as never before there is a movement in all departments of knowledge, - in law, in metaphysics, in … The concurrent causation doctrine operates to hold as covered losses caused jointly by an excluded peril and some other peril that is not excluded. The proximate cause itself may not do any direct damage. Proximate Cause is an important principle of insurance, which helps in deciding how the loss or damage happen and whether it is the result of an insured peril or not. Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. Proximate cause is a key principle of insurance and is concerned with how the loss or damage actually occurred and whether it is indeed as a result of an insured peril. In order to achieve the merits, this dissertation scrutinises the causation theory itself and Efficient proximate cause is the one that sets others in motion. The proximate cause of his death is cholera and not falling from the ladder, or for that matter scratches on his leg, even though it can be wrongly argued that has he not had scratches on his leg he would not have gone to the hospital and contacted cholera as such. The doctrine of proximate cause is one of the six principles of insurance. ����z�r�{A:�#��C������R�dSG!�|ٮ��@;6p3������@��E�X��y��Q � ��MR doctrine of proximate cause has to be applied for the purpose of ascertaining which of the successive causes is the cause to which the loss is to be attributed within the intention of the policy.1 Doctrine of Proximate Cause Proximate cause refers to an action that leads to an unbroken chain of events; events that end with someone suffering a loss. Journal of Insurance Coverage. Duffy is in the road construction business, and uses boiling enamel as part of the construction process. What is Proximate Cause. For finding out the proximate cause we shall have to watch closely the chain of events, leading ultimately to a result, and out of such events whether in a broken or unbroken sequence, interrupted or uninterrupted, the cause proximate to the result must be established. Proximate cause refers to a direct cause of loss, without which the loss would not occur; therefore, it is a highly relevant principle in the insurance industry. Proximate cause is an act, whether intentional or negligent, that is determined to have caused someone else’s damages, injury, or suffering. The proximate cause rule applies here. The policy does not cover loss due to “spontaneous fermentation”, but any resultant fire damage is covered. cit., p. 75. The concurrent causation doctrine operates to hold as covered losses caused jointly by an excluded peril and some other peril that is not excluded. Concurrent cause is actually a misnomer because it suggests that the events, actions, or forces must occur simultaneously. The "efficient proximate cause" doctrine as developed by the courts in Garvey and Sabella, A policy covers- accidental fire but specifically excludes earthquake fire. The concept of covered “perils” only exists in the property insurance context for the purpose of determining what causes of loss will be covered. (Price 2s. A model of causation more rational than the "doctrine of efficient Co. v. Partridge (1973) 10 Cal.3d 94, which holds that, where an injury is proximately caused by two or more independent causes, the insurer is liable if any of those causes is covered under its policy. While suing that individual, one will have to prove that the negligence was the actual or proximate cause of the injury. Recommended Citation Mark Y. Umeda, Comment,Concurrent Proximate Causes in Insurance Disputes: After Garvey, What Will Policyholders Expect?, 29 Santa ClaraL. We would be well served by getting rid of these terms and other jargon as a prologue to the development of a set of simple and cogent doctrines. - … So says MacGillivray and Parkington.1 So say the courts. marine insurance context and to explore how perils themselves would affect the formation and application of causation rules. A related doctrine is the insurance law doctrine of efficient proximate cause. Insurance Contract: Elements and Clauses Insurance Contract (How it Works), Insurance: Definition, Features (Explained), Cargo Insurance: Definition, Importance, Types, Procedure, ← Utmost Good Faith in Insurance Contract, Marine Insurance, Life Insurance. Meaning 18 2. An insurer is liable for a loss of which a peril insured against was the proximate cause, although a peril not contemplated by the contract may have been a remote cause of the loss; but it is not liable for a loss of which the peril insured against was only a remote cause. Determining Proximate Cause Through Different Rules. Definition 26 2. Mr. Johnson is resident in the firm's Orange County, CA office, and his practice includes representing insurers in insurance coverage disputes. It is the immediate cause and not the remote cause. For an act or event to be considered a proximate cause, it does not necessarily have to directly precede a loss or begin a chain of occurrences leading to the same. Three unruly doctrines—proximate cause, concurrent cause, and efficient proximate cause—cause an inordinate amount of litigation. In the meantime, due to the severe exposure, the contracts pneumonia and dies. (ii) delay although the delay be caused by a peril insured against. There must be direct and non-intervening cause. startxref Subrogation Principle in Insurance: How it Works? 0000009660 00000 n Efficient proximate cause is the one that sets others in motion. Because proximate cause is the darling of law professors and bar examiners! A model of causation more rational than the "doctrine of efficient Copr. Business interruption insurance is complex, both in terms of identifying the obligation to indemnify (that is the trigger for cover) as well as quantifying the amount of the indemnity (that is the covered financial loss). For marine insurance to be observed the understanding of how proximate Cause principle is applied in marine insurance must be understood. Business Interruption Insurance Claims – Understanding the Doctrine of Proximate Cause and the Principles of Concurrent Causes. the doctrine of Causa Proximo (Proximate Cause) is not applied because the insurer is bound to pay the amount of insurance whatever may be the reason of death. 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