Insurance coverage attorney David P. Rossmiller’s commentary on anti-concurrent cause clauses has once again been cited as an authoritative work. The Colorado Court of Appeals in Colorado Intergovernmental Risk Sharing Agency v. Northfield Insurance Company, 2008 Colo. App. LEXIS 1165, referred to Katrina in The Fifth Dimension: Hurricane Katrina Cases in the Fifth Circuit Court of Appeals—Rossmiller’s in-depth analysis of ACC language in the context of Hurricane Katrina litigation—that was published in the April 2008 issue of New Appleman on Insurance: Current Critical Issues Insurance Law 71, 86 (2008).

Editor's Note: Readers who register and log on to this site may access the CIRSA opinion by clicking on the link at the top of this article. Registered users may obtain a copy of the full text of Rossmiller's Fifth Dimension article by clicking here.

Following Rossmiller’s approach in determining whether the ACC language in the subject policy even applied to the facts of the case, the appellate court disagreed with the trial court’s interpretation of the ACC as allowing an apportionment of loss between included and excluded causes and remanded the case for a determination of whether the ACC barred plaintiff’s recovery.

In describing the experience of being a nationally renowned authority on a topic to which he has devoted so much time and attention, Rossmiller said “It feels pretty good. I hope it continues.”

Other courts have referred to Rossmiller’s body of work on ACC provisions. In Dickinson v. Nationwide Mutual Fire Ins. Co., 2008 U.S. Dist. LEXIS 31153, Judge L.T. Senter, Jr., (United States District Court for the Southern District of Mississippi) referred to Rossmiller’s “meticulous analysis” in Interpretation and Enforcement of Anti-Concurrent Policy Language in Hurricane Katrina Cases and Beyond published in the October 2007 issue of Appleman: Current Critical Issues in Insurance Law § I. In Dickinson, Judge Senter refused to adopt Nationwide’s position that its ACC provision prevented any recovery for wind damage when the insured property also sustained substantial flood damage, and instead decided that the ACC provision did not apply at all because the wind and water damage were separate losses caused by separate, single forces. Similarly, Judge Ortrie D. Smith (United States District Court for the Western District of Missouri, relied upon the same Rossmiller article in Maxus Realty Trust, Inc. v. RSUI Indemnity Co., 2007 U.S. Dist. LEXIS 92417 when he denied summary judgment to the defendant insurer because a fact issue existed as to whether anti-concurrent cause language in the policy applied to the facts of the case.

Rossmiller, a partner in Insurance Coverage and Recovery section of the Business and Commercial Litigation Department of Dunn Carney Allen Higgens & Tongue LLP in Portland, Oregon, has written extensively on coverage topics. His practice focuses on insurance coverage and recovery counseling and litigation including environmental property damage, errors and omissions and professional liability coverage, directors and officers liability, sex abuse coverage, construction defect, business interruption insurance, general commercial liability, first-party commercial property disputes, bad faith litigation, homeowners and auto, managed care, employer liability and others.

Before becoming a lawyer, Rossmiller was an award-winning reporter for eight years with a daily newspaper, The Phoenix (Ariz.) Gazette. He also writes the Insurance Coverage Law Blog, a popular and influential weblog that examines insurance coverage law and industry developments, where he has extensively analyzed Hurricane Katrina litigation. In addition, he is a regular contributor to Point of Law, a widely read online forum on the American legal system sponsored by the Manhattan Institute and the American Enterprise Institute. He is also the author of two chapters of the New Appleman Insurance Law Practice Guide: Applying Attorney-Client and Work-Product Privileges and Conducting Discovery.