Dallas Fort Worth Insurance Lawyer Blog
The doctrine of concurrent causes is discussed in a 2020, opinion from the Southern District of Texas, Corpus Christi Division. The opinion is styled, Claude Hooker v. United Property & Casualty Insurance Company.
Hooker sued his insurance company, United Property & Casualty Insurance Company (UPC) for windstorm benefits after Hurricane Harvey cause damage to his home.
UPC counters Hooker by claiming that the damages to Hooker’s home are the result of wear and tear. As a result of this defense, UPC filed a motion for summary judgment based on the concurrent cause doctrine.
The doctrine of concurrent causes limits an insured’s recovery to the amount of damage caused solely by the covered peril. Because an insured can recover only for covered events, the burden of segregating the damage attributable solely to the covered event is a coverage issue for which the insured carries the burden of proof.
According to UPC and its expert, Hooker’s claim for structural damage to his home involves damage caused by ordinary wear and tear or construction defects. It argues that, because such damage is not covered under the policy, Hooker is not entitled to a jury trial unless—consistent with the concurrent cause doctrine—he submits evidence allocating the damage between the covered and uncovered causes.
The Court then gets into a discussion regarding the policy language and the reader needs to read the opinion for that discussion.
It is the burden of the policyholder, or in this case, Hooker, to show that his claim results from a covered peril. He has done that. But UPC has provided competent summary judgment evidence to support its claim that the damages were caused by non-covered perils. In such a scenario of competing causes, Hooker bears the burden to support his claim with evidence that allocates damages arising from his covered claim from any damages that arise from a non-covered cause.
Under Texas law, allocation is an issue of fact, unless the insured fails to present any evidence regarding allocation. Whether Hooker has satisfied his allocation burden depends on whether he is entitled to “allocate” zero percent of the damages to the non-covered causes and 100% to Hurricane Harvey. He can. The percentage spectrum includes taking the position, based on admissible evidence, that the covered peril caused 100% of the loss claimed.
The expert witness was not required to assign precise percentages to potential contributing causes that he did not believe were even relevant in this case. . . . His inability to apportion damage among seven possible contributing causes goes to the weight of his testimony, not its admissibility.
If the jury finds that a non-covered peril caused some of the loss, its allocation of causation must be supported by evidence. However, we need not anticipate that scenario at the summary judgment stage. Hooker has offered evidence that both disputes UPC’s evidence of non-covered causes and supports his argument that the hurricane was the sole cause. It is not Hooker’s burden to establish conclusively that the non-covered perils caused 0% of the loss. It is enough that he raises a disputed issue of material fact in support of his 100% allocation.
Because Hooker has offered some evidence that 100% of the damages he seeks constitute direct physical loss to the covered property caused by windstorm, UPC has not demonstrated that it is entitled to summary judgment defeating the breach of contract claim.
The Facts discussed in this case are a good read for attorneys handling these types of claim.