The Concurrent Cause Doctrine

One of the main issues that come up in our practice is insurance coverage, and whether the injured party is covered under an insurance policy. There are many laws involving insurance and insurance coverage, some of which will be discussed in future blog articles, but today, we are just going to focus on the concurrent cause doctrine in North Dakota.

The Concurrent Cause Doctrine Defined

In North Dakota, under the concurrent cause doctrine, the insurance policy provides coverage for liability when both a risk that is covered under the insurance policy (covered risk) and a risk that is not covered under the insurance policy (excluded risk) contribute to the accident.

Put another way, the concurrent cause doctrine takes the approach that insurance coverage should be allowed whenever two or more causes do appreciably contribute to the injured party’s loss, and at least one of the causes is a covered risk under the insurance policy.

This may seem simple at first, but there are factors that the Court considers before determining whether coverage applies. Under this doctrine, the insurance coverage will be found if:

there is a “causal connection” between the covered risk and the injury;
the injury cannot be disassociated from the covered risk; and
the potential of creating an unreasonable risk of injury arose just as much from the covered risk as it did from the excluded risk.

North Star Mutual Insurance vs. Ackerman

The North Dakota Supreme Court recently decided a case, North Star Mutual Insurance vs. Ackerman, involving this issue on March 25, 2020. In the Ackerman case, an insured driver placed a wheelbarrow, which he intended to use for work, in the back of his pickup. The driver then traveled on the interstate when the wheelbarrow was alleged to have fallen out of his pickup and landed on the interstate, later causing a collision between two other drivers. During his trip, he realized that the wheelbarrow was missing. Several days later, a damaged wheelbarrow, which the driver acknowledged looked like the wheelbarrow that had been in his pickup, was found along the interstate about 5 miles from the collision.

The insured driver’s commercial general liability (CGL) insurance policy excluded “coverage for the loading and unloading of property and bodily injury arising out of the use of any automobile.” The primary issue, in this case, was whether the concurrent cause doctrine applied.

One of the injured parties claimed many forms of negligence had occurred, including the insured driver’s failure to remove the wheelbarrow from the highway after it fell from the vehicle and the insured’s failure to give notice to the public of the presence of the wheelbarrow on the highway. The injured party argued that those causes were not excluded under the insurance policy, and therefore, were covered.

The district court concluded both covered and excluded risks contributed to the accident, the concurrent doctrine applied, the policy provided coverage to the insured driver’s potential liability, and the insurance company had a duty to defend the insured driver.

On appeal, the North Dakota Supreme Court affirmed the district court’s decision and held the CGL policy provided coverage in the case. The Court reasoned, “the failure to remove the wheelbarrow from the road and the failure to warn were independent acts that allegedly were a cause of the injury. The injury potentially arose just as much from failure to remove the wheelbarrow and warn other drivers, which are covered risks, as it arose from the transportation of the wheelbarrow.”