Dallas Fort Worth Insurance Lawyer Blog
Here is a 2021, opinion from the Western District of Texas, San Antonio Division, where the insured made a claim for hail damage against its insurer but did virtually nothing to prove the damage was caused by hail. The style of the case is, 343 West Sunset, LLC v. Seneca Insurance Company, Inc.
In this case, 343 made a claim for hail damages. The date listed for the hail damage was the last date for which there was coverage and it was undisputed that there was no hail storm on that date.
The Court spells out the problems with this claim and why the court is granted summary judgment in favor of Seneca.
In Texas, insurance policies are contracts subject to the rules of contract construction. And to prevail on a claim for breach of the policy, 343 bears the burden of establishing the claim is covered by the policy. To prove coverage, 343 must establish that the injury or damage alleged is a type (1) covered by the policy and (2) was incurred at a time covered by the policy.
Here, there’s no genuine issue of material fact concerning whether 343 suffered
a covered loss during the policy period. To start, Seneca provides ample evidence that there was no covered loss during the policy period. According to Seneca’s expert Mark Kubena, there’s no evidence of any hail–related damage to the surface of the buildings’ roof. According to Kubena, hail didn’t fall at the property on June 15, 2018—the only date provided as a possible date of loss—or at any time in 2017. Even though Kubena conceded that the exposed A/C coil fins have small indentations, he also clarified that those indentions are visible in the 2017 inspection photographs, which indicates they would’ve predated any 2018 weather event. Kubena’s opinion is consistent with that of Seneca’s engineer Serrano, who opined that the damage at issue would’ve resulted from a long-term process as
opposed to a recent weather-related event.
343’s corporate representative and its testifying expert concede they made no attempt to determine the cause or timing of the alleged loss. 343’s corporate representative testified that he couldn’t recall any particular storm but rather had reported the date provided based on the recommendation of his roofer. Similarly, 343’s expert testified that he wasn’t retained to talk about causation; June 15, 2018, was simply the date “passed on to [him] from counsel.” 343’s expert even conceded that some of the dents he observed could’ve been caused by a
different storm. At most, all that is presented here are “unconfirmed rumors of loss” that do not raise a triable issue concerning whether any losses occurred during the coverage period.
An insurer is liable only for losses covered by the policy. Accordingly, when covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reasonable basis on which to allocate the damage. If the insured falls short of meeting this burden, the insurer is entitled to summary judgment. Here, summary judgment is also appropriate on 343’s breach–of–contract claim because 343 hasn’t provided any evidence to segregate damages between covered and uncovered losses.
Seneca provides unrebutted evidence that at least some of the claimed damage was caused by normal wear–and–tear, continuous leakage, and/or a prior hail storm—all events excluded from coverage. Shipp conceded that the roof “showed signs of older damage.” Nevertheless, Shipp made no effort to allocate between the covered and uncovered damage. 343 hasn’t introduced any other evidence on the issue. 343’s unsupported arguments regarding what Shipp may testify to at trial, don’t create a genuine issue of material fact on the matter. Accordingly, 343’s failure to provide any evidence on this point is fatal to its breach of contract claim.
343’s negligence claim must also fail. In Texas, there is no independent cause of action against an insurer for negligent handling of claims.