my Higgs (“Higgs”) sued individually and on behalf of his deceased son, Cayson Emmit Turnmire (“Cayson”) David Payne (“Payne”) for the careless maintenance of his property in connection with Cayson’s death by drowning in Payne’s swimming beat Together. Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”), Paynes homeowners insurance company, sued and sought a declaratory judgment in Trial Court against Payne and Higgs. Tennessee Farmers argued that due to an exclusion in Payne’s homeowners’ insurance against claims “arising out of or in connection with the pool”, it is not obligated to defend or indemnify Payne. Tennessee Farmers Mutual Insurance Company v. David Payne, et al., no. W2021-00376-COA-R3-CV, Court of Appeals of Tennessee (13 May 2022)
Tennessee Farmers and Higgs filed cross-border claims for summary judgment. The Trial Court upheld the Tennessee Farmer’s claim and rejected Higgs’ motion. Higgs appealed.
Referring to the doctrine of simultaneous causes, Higgs argued that Tennessee Farmers must defend and indemnify Payne because, in addition to the pool, certain non-excluded causes contributed to Cayson’s death, namely Payne’s failure to fence or gate his property.
Higgs sued, individually and on behalf of his deceased son, Cayson, Payne for negligent maintenance of his property in connection with Cayson’s death by drowning in Payne’s pool. While Higgs was washing, Cayson walked into Payne’s yard, climbed onto his unsecured deck, and drowned in Payne’s pool. Tennessee Farmers argued that, based on an exception to Payne’s policy, it had no obligation to defend or indemnify Payne in this matter. The exclusion says:
PERSONAL RESPONSIBILITY AND MEDICAL PAYMENTS TO OTHER COVERAGE PROVIDED BY THIS POLICY SHALL NOT PROVIDE ANY LIABILITY OR DAMAGE ARISING FROM OR IN ANY ACCOMMODATION.
The Trial Court upheld a decision granting the Tennessee Farmers ‘request for summary judgment and dismissing Higgs’ request for summary judgment.
The complaint is based on negligence on the part of the defendant as it relates to the pool where the complaint claims, among other things:
- Defendant Payne had no fence or gate around the pool or his property. Rather, he had a deck that partially surrounded the pool above ground, providing easy access to the pool[.]
- The child’s death was most likely caused by the defendant’s failure to maintain his property and pool in a reasonable and safe manner and condition.
- The defendant’s breach of duty includes but was not limited to:
- Not having a fence around their pool and / or property,
- Not having a gate to prevent access to their pool,
- If one fails to secure, lock or remove the steps to the pool above ground to prevent access to the pool,
- Not having a pool alarm,
- Failure to provide reasonable and normal care in the circumstances, and
- The defendant is guilty of violating Tenn[.] Code Ann[.]§68-14-801 et Seq “Katie Beth’s law” (pool alarm) and the said violation constitutes negligence in itself and was a direct and immediate cause of the minor child’s death and injuries[.]
At the time of the incident, based on relevant undisputed facts: Defendant’s property was insured with a full risk insurance policy with Tennessee Farmers Mutual Insurance Company for which he paid a premium.
If one considers the complaint and the evidence in the light that is most favorable to defendant Higgs, the claims in the complaint come from or in connection with the pool on defendant David Payne’s property and although they may otherwise have been covered by the general terms and conditions of “all- risk policy “the Court of Appeal concluded that it was clear that the recommendation explicitly excludes coverage, and the court finds no ambiguity in the words” originating from or in connection with the pool “or its applicability in this case[.]
Furthermore, it does not matter that the insurance does not explicitly provide an exemption for coverage for claims or damages arising from or in connection with the defendant’s tires or other defects or deficiencies in defendant Payne’s property, such as lack of fencing due to these alleged breaches of duty. are connected to the pool.
There are no allegations that these alleged breaches of duty were defective other than in the case of the pool and there are no allegations that damages would have occurred if there was no pool.
In this case, there is no other separate cause or non-excluded cause of the damage. As such, the theory of simultaneous coverage is not applicable.
The Tennessee Supreme Court last took up the doctrine of simultaneous cause in Clark v. Sputniks, LLC368 SW3d 431 (Tenn. 2012), a case with a question as to whether liability insurance cover existed to cover the plaintiff’s damages arising from a quarrel at the insured’s bar and restaurant.
Tennessee recognizes the doctrinal cause doctrine, which provides for insurance coverage in a situation “where a non-excluded cause is an essential factor in causing the injury or damage, even if an excluded cause may have contributed in some way to the final outcome; and , stand alone, would have invoked the exclusion in the policy. Allstate Ins. Co. v. Watts811 SW2d 883, 887 (Tenn. 1991).
Higgs’ mere assertion or conclusion that homeowners are generally obligated to fence their property, whether they have a pool or not, is not supported by any facts or laws. The absence of a fence from Payne’s property makes sense for the Tennessee Farmer’s obligation to defend and indemnify this claim only if it constituted a non-excluded simultaneous cause of Cayson’s death that does not “arise from or in connection with the pool on insured premises.”
The chain of events that led to the ultimate injury did not begin with an excluded risk; it ended with one. Furthermore, the problem with Higgs’ stated non-excluded simultaneous causes is not their sequence in the chain of events leading to Cayson’s death, but whether these stated causes constitute non-excluded simultaneous causes at all. Each of Higgs’ alleged non-excluded simultaneous causes is inextricably linked to Cayson’s tragic drowning in Payne’s pool, an excluded cause under Payne’s insurance.
According to the facts in this case, Higgs’ alleged non-excluded reasons why no fence or gate secures Payne’s pool or property can be negligent except “in connection with the pool on [Payne’s] in other words, it’s not a question of “but for” the pool; it’s just the pool.
The language of Payne’s insurance is clear and unambiguous – there is no “personal liability” or “medical payments to others” for any claims or damages “arising out of or in connection with the pool in the insured premises.”
Higg’s complaint does not claim a non-excluded simultaneous cause. Tennessee Farmers is not obligated to defend or indemnify Payne in this matter. Having established that no non-excluded simultaneous cause has been alleged in this case, the judgment of the Court of Justice is upheld, and this plea is remitted to the Court for recovery of the costs below.
The doctrine of simultaneous causes has helped the insured to obtain insurance cover in the face of a clear and unambiguous exclusion. However, there must be a covered cause of damage that corresponds to the excluded cause of the damage. In this case, there was only one cause of death for the child, the pool. Ms. Higgs is not without recourse, she can still go against Payne and collect any judgments against his assets.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his internship to the position of insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry. He is available at http://www.zalma.com and firstname.lastname@example.org.
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