Insurance Claim – Concurrent Causes – Court Asks What To Do

A frequent insurance problem in Texas is damage alleged to have been caused by a hail or wind storm.  This issue is even confusing for the Courts.  Here is a case discussing this issue and in the opinion, the United States Fifth Circuit is asking the Texas Supreme Court on guidance for resolving the Texas “concurrent causation doctrine.”  The style of the case is, Harold Franklin Overstreet v. Allstate Vehicle and Property Insurance Company.

This case is about a leaky roof.  Overstreet says the leak was caused by a strong hailstorm that hit his neighborhood shortly after he purchased the policy.  Allstate argues that almost all the roof damage was due to uncovered causes, namely a combination of wear and tear and earlier hailstorms that hit the roof before Overstreet purchased the policy.  The district court granted summary judgment to Allstate because Overstreet did not prove what damages were solely attributable to the covered storm.

Overstreet bought a home insurance policy from Allstate that covered damage from wind and hail.  Overstreet’s roof was about three years old when he purchased the policy.  On June 6, 2018 a wind and hail storm hit the area where he lived, allegedly damaging his roof.  Overstreet reported a loss to Allstate, whose adjuster estimated the value of the loss at only $1,263.23.  Because this amount was less than the deductible, Allstate paid Overstreet nothing.

Overstreet alleges the roof had not leaked prior to the June 6, 2018, storm and that it did leak afterwards.  He relied on the testimony of his expert Mark Earle, who testified that he inspected the roof and saw evidence of hail damage.  Earle relied on meteorological data which showed that hailstorms hit the property both
before and after the insurance policy became effective.  That data showed that storms accompanied by 0.75” hail hit before Overstreet purchased the policy.  The June 6 storm was more violent, accompanied by 1.25” hail.  While Earle testified that 0.75” hail can damage a roof, he says the damage he found was more consistent with the 1.25” hail that fell on June 6.

Texas’s concurrent causation doctrine instructs that 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.”  That is, the insured must “segregate covered losses from non-covered losses.” But questions remain about when the doctrine applies, and what plaintiffs must prove when it does.  First, does “any preexisting damage to a roof” trigger the concurrent causation doctrine?  Second, must plaintiffs allocate their losses even if they “provide evidence suggesting that the covered hailstorm is the sole reason the roof must be repaired or replaced”? Third, assuming the answer to the second question is “yes,” can plaintiffs “satisfy any such attribution obligation by implicitly attributing all of their losses to the hailstorm”?

The Court then discussed “why” they needed resolution to these issues.


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