Clear & Unambiguous Exclusion Affirmed

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Higgs, individually and on behalf of her deceased son, Cayson, sued Payne for the negligent maintenance of his property in relation to Cayson’s death by drowning in Payne’s swimming pool. As Higgs did laundry, Cayson wandered into Payne’s yard, climbed up on his unsecured deck, and drowned in Payne’s swimming pool. Tennessee Farmers asserted that, based on an exclusion contained in Payne’s policy, it had no obligation to defend or indemnify Payne in this matter.

The Trial Court entered an order granting Tennessee Farmers’ motion for summary judgment and denying Higgs’ motion for summary judgment.

At the time of the incident, based on the relevant undisputed facts: Defendant’s property was insured by an all-risk policy with Tennessee Farmers Mutual Insurance Company for which he was paying a premium.

ANALYSIS

Viewing the complaint and evidence in the light most favorable to Respondent Higgs, the claims in the Complaint arise from or in connection with the swimming pool on Respondent David Payne’s property it was clear that the endorsement expressly excludes coverage, and the Court found no ambiguity in the words “arising from or in connection with the pool” or its applicability in this case.

The Tennessee Supreme Court most recently addressed the concurrent cause doctrine in Clark v. Sputniks, LLC, 368 S.W.3d 431 (Tenn. 2012), a case featuring an issue of whether liability insurance coverage existed so as to cover plaintiffs’ injuries stemming from an altercation at the insured’s bar and restaurant.

Tennessee recognizes the concurrent cause doctrine, however, the language in Payne’s insurance policy is clear and unambiguous-there is no “personal liability” or “medical payments to others” coverage for any claims or damages “arising from or in connection with the swimming pool on the insured premises.”

Higgs’ complaint alleges no non-excluded concurrent cause. Tennessee Farmers is not obligated to defend or indemnify Payne in this matter. Having held that no non-excluded concurrent cause was alleged in this case, the judgment of the Trial Court is affirmed,.

ZALMA OPINION

The concurrent cause doctrine has helped insured’s obtain insurance coverage in the face of a clear and unambiguous exclusion. However, there must be a covered cause of loss that concurs with the excluded cause in effecting the damage. In this case there was only one cause of the child’s death, the pool. Ms. Higgs is not without a remedy, she may still proceed against Payne and collect any judgment against his assets.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected].

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