Fourth District Court Tackles Application of Efficient Proximate Cause and Concurrent Cause Doctrines

Apr 6, 2018

Florida Insurance Defense Lawyer Amy Koltnow

January 2018
Florida Insurance Defense Lawyer Amy Koltnow
I’m pleased to bring you Florida Insurance Matters, a monthly update on Florida insurance-related legal developments.  Please contact me any time with questions or feedback. 
Amy L. Koltnow, Esq. | Shareholder, Colodny Fass | (954) 492-4010
Fourth District Tackles Application of Efficient Proximate Cause and Concurrent Cause Doctrines
Insureds sued their homeowner’s insurer following the denial of their claim for roof damage based on wear and tear, among other policy exclusions. After trial, the jury entered a verdict in favor of the insurer. The insureds appealed, arguing the court’s jury instructions incorrectly applied the “efficient proximate cause doctrine” rather than the “concurrent cause doctrine” approved in Sebo. The Fourth DCA found the jury instructions improperly shifted the parties’ respective burdens of proof. The court held the jury must first determine whether one efficient proximate cause of the damage could be determined and, if the answer was negative, the jury should have been instructed to apply the “concurrent cause doctrine” and determine if at least one of the concurrent causes of the damage was covered. The insurer argued the policy’s anti-concurrent cause provisions precluded application of the “concurrent cause doctrine,” but the appellate court disagreed since not all excluded losses contained anti-concurrent cause provisions.

Jones v. Federated National Insurance Company, 4th DCA, Jan. 17, 2018  

  • Anti-concurrent cause language appears in different parts of the policy. Review these provisions carefully – the policy language may not fully protect the carrier against broader coverage afforded by the concurrent cause doctrine and the provisions may need to be revised.
  • This case spells out specific jury instructions when more than one potential cause of damage is raised by the parties – take a look! 
Trial Court Must Address Privilege Claims When Overruling Discovery Objections
The Fifth DCA quashed a trial court’s discovery order that required State Farm to turn over documents withheld as privileged without addressing whether the documents were privileged. The trial court is required to make specific detailed findings addressing each privilege claim (work product or attorney client) to justify overruling an objection to discovery based on privilege and give a specific explanation demonstrating the opposing party’s need and undue hardship before ordering the production.
  • Relevance remains the guidepost and gatekeeper to permissible discovery. 
  • Here, the documents sought pertained to State Farm’s use of, and payments to, its experts. Since the opponent already obtained Boecher discovery, the appellate court did not envision there would be a “need” for such potentially privileged information.  


South Florida Legal Guide Recognizes Maria Abate’s Career Fighting Insurance Fraud
Colodny Fass Shareholder Maria Elena Abate was named a 2018 Distinguished Attorney by the South Florida Legal Guide, for her “stellar reputation” in complex commercial litigation matters, including insurance fraud. 
Maria discusses red flags for insurance fraud, as well as some fun facts you might not’ve known about her:
Congratulate Maria at or (954) 492-4010.
For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.
About Amy L. Koltnow
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals.  She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums.  Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.
To view Ms. Koltnow’s complete professional biography, click here.