CACI 2306 Covered and Excluded Risks—Predominant Cause of Loss
California Civil Jury Instructions CACI
2306 Covered and Excluded Risks—Predominant Cause of Loss
You have heard evidence that the claimed loss was caused by a combination of covered and excluded risks under the insurance policy. When a loss is caused by a combination of covered and excluded risks under the policy, the loss is covered only if the most important or predominant cause is a covered risk.
[[Name of defendant] claims that [name of plaintiff]’s loss is not covered because the loss was caused by a risk excluded under the policy. To succeed, [name of defendant] must prove that the most important or predominant cause of the loss was [describe excluded peril or event], which is a risk excluded under the policy.]
[[Name of plaintiff] claims that the loss was caused by a risk covered under the policy. To succeed, [name of plaintiff] must prove that the most important or predominant cause of the loss was [describe covered peril or event], which is a risk covered under the policy.]
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is the insurer. The party designations may be changed if appropriate to the facts of the case.
This instruction in intended for use in first party property insurance cases where there is evidence that a loss was caused by both covered and excluded perils. In most cases the court will determine as a question of law what perils are covered and excluded under the policy.
Depending on the type of insurance at issue, the court must select the bracketed paragraph that presents the correct burden of proof. For all-risk homeowner’s policies, for example, once the insured establishes basic coverage, the insurer bears the burden of proving the loss was caused by an excluded peril. In contrast, for “named perils” policies (for example, fire insurance) the insured bears the burden of proving the loss was caused by the specified peril. (See Strubble v. United Services Automobile Assn. (1973) 35 Cal.App.3d 498, 504 [110 Cal.Rptr. 828].)
Sources and Authority
•Remote Cause of Loss. Insurance Code section 530.
•Excluded Peril: But-For Causation. Insurance Code section 532.
•“[In] determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.” (Sabella v. Wisler (1963) 59 Cal.2d 21, 31–32 [27 Cal.Rptr. 689, 377 P.2d 889], internal quotation marks and citation omitted.)
•“Sabella defined ‘efficient proximate cause’ alternatively as the ‘one that sets others in motion,’ and as ‘the predominating or moving efficient cause.’ We use the term ‘efficient proximate cause’ (meaning predominating cause) when referring to the Sabella analysis because we believe the phrase ‘moving cause’ can be misconstrued to deny coverage erroneously, particularly when it is understood literally to mean the ‘triggering’ cause.” (Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 403 [257 Cal.Rptr. 292, 770 P.2d 704], internal citations omitted.)
•“The efficient proximate cause referred to in Sabella has also been called the predominant cause or the most important cause of the loss. ‘By focusing the causal inquiry on the most important cause of a loss, the efficient proximate cause doctrine creates a “workable rule of coverage that provides a fair result within the reasonable expectations of both the insured and the insurer.” ’ ” (Vardanyan v. AMCO Ins. Co. (2015) 243 Cal.App.4th 779, 787 [197 Cal.Rptr.3d 195], internal citation omitted.)
•“[T]he ‘cause’ of loss in the context of a property insurance contract is totally different from that in a liability policy. This distinction is critical to the resolution of losses involving multiple causes. Frequently property losses occur which involve more than one peril that might be considered legally significant. … ‘The task becomes one of identifying the most important cause of the loss and attributing the loss to that cause.’ [¶] On the other hand, the right to coverage in the third party liability insurance context draws on traditional tort concepts of fault, proximate cause and duty.” (Garvey, supra, 48 Cal.3d at pp. 406–407, internal quotation marks, italics, and citations omitted.)
•“[I]n an action upon an all-risks policy (unlike a specific peril policy), the insured does not have to prove that the peril proximately causing his loss was covered by the policy. This is because the policy covers all risks save for those risks specifically excluded by the policy. The insurer, though, since it is denying liability upon the policy, must prove the policy’s noncoverage of the insured’s loss—that is, that the insured’s loss was proximately caused by a peril specifically excluded from the coverage of the policy.” (Vardanyan, supra, 243 Cal.App.4th at pp. 796−797, original italics.)
•“A policy cannot extend coverage for a specified peril, then exclude coverage for a loss caused by a combination of the covered peril and an excluded peril, without regard to whether the covered peril was the predominant or efficient proximate cause of the loss. Other Coverage 9 identifies the perils that are covered when the loss involves collapse. If any other peril contributes to the loss, whether the loss is covered or excluded depends upon which peril is the predominant cause of the loss. To the extent the term ‘caused only by one or more’ of the listed perils can be construed to mean the contribution of any unlisted peril, in any way and to any degree, would result in the loss being excluded from coverage, the provision is an unenforceable attempt to contract around the efficient proximate cause doctrine. ¶ Accordingly, CACI No. 2306 … was the correct instruction to give to the jury.” Vardanyan, supra, 243 Cal.App.4th at p. 796.)
•“[T]he scope of coverage under an all-risk homeowner’s policy includes all risks except those specifically excluded by the policy. When a loss is caused by a combination of a covered and specifically excluded risks, the loss is covered if the covered risk was the efficient proximate cause of the loss. … [T]he question of what caused the loss is generally a question of fact, and the loss is not covered if the covered risk was only a remote cause of the loss, or the excluded risk was the efficient proximate, or predominate, cause.” (State Farm Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2 Cal.Rptr.2d 183, 820 P.2d 285], internal citation omitted.)
•“[A]n insurer is not absolutely prohibited from drafting and enforcing policy provisions that provide or leave intact coverage for some, but not all, manifestations of a particular peril. This is, in fact, an everyday practice that normally raises no questions regarding section 530 or the efficient proximate cause doctrine.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 759 [27 Cal.Rptr.3d 648, 110 P.3d 903].)