Stormy Weather — Insured Sings the Burden of Proof Blues

December 3rd, 2018 By Eric S. Peabody

Insured’s Failure to Support Causation and Segregation with Evidence Results in Win for Carrier

Insureds Richard and Linda Seim filed suit against their homeowners’ insurance carrier Allstate for damage to their home following a storm in August 2013. Seim v. Allstate Texas Lloyds, No. 02-16-00050-CV, 2018 WL 5832106, at *1 (Tex. App.—Fort Worth  Nov. 8, 2018, n.p.h.). Allstate had investigated and, despite finding some interior water damage to the home, had denied the claim because there was no evidence of an opening created by wind or hail as required by the policy. The trial court granted a general summary judgment for Allstate and its adjuster, which the Fort Worth Court of Appeals affirmed based on defects in the Seims’ summary judgment evidence. The Texas Supreme Court disagreed with the court of appeals’ analysis of the evidentiary defect, but remanded for a review of Allstate’s other grounds for affirming the judgment.  Id. at *3 n.6.

On remand, the court of appeals again affirmed the trial court’s judgment, holding that the Seims had produced no evidence that the damage was caused solely by a covered peril and no evidence segregating damage caused by a covered peril from damage caused by uncovered perils. Id. at *1. Although the Seims had submitted an expert report, the court held that the expert’s opinion that all damage occurred “solely” from the alleged storm was conclusory.  The court noted that the expert’s opinions in a supplemental report were severely undermined because, without explanation, they contradicted statements in an earlier report attributing damage to prior storms.  Id. at *6-7. Even if the report raised a genuine issue of material fact that some damage resulted from the August 2013 storm, the court further held that the Seims failed to offer evidence that would permit a jury to segregate the damage caused by covered and uncovered perils. While circumstantial evidence of damage from a covered peril can sometimes suffice to meet the insured’s “concurrent causation” burden of proof without expert support, the court suggested that the absence of visible damage was fatal to that argument here.  The appearance of new leaks was not enough, because new leaks can result from old damage.  Id. at *8.

Take-aways: Seim is a good reminder that the insured’s procurement of an expert report is not necessarily enough to create a fact issue that will defeat summary judgment. It also reminds us that “circumstantial” does not mean “speculative”—a distinction insureds would prefer to ignore when the burden shifts to them on issues of concurrent causation.