Dallas Fort Worth Insurance Lawyer Blog
The law clearly in Texas clearly places the burden on segregating damages on the insured. This issue is discussed in a 2022 opinion issued by the Northern District of Texas, Dallas Division. The styled of the opinion is Benham Bagheri v. State Farm Lloyds.
This is a first-party insurance coverage action by Bagheri alleging a claim for breach of a homeowners insurance policy and extra-contractual claims in connection with damage to his residence caused by a large falling tree. State Farm moves for summary judgment, contending that Bagheri’s breach of contract claim must be dismissed because he has not provided the jury a reasonable basis to segregate damage attributable solely to the covered event, as Texas law
requires, and that he has failed to produce evidence of actions by State Farm that, absent a
breach of contract, are sufficiently extreme to enable a reasonable jury to find in his favor on his extra-contractual claims. For the reasons explained, the court grants State Farm’s
motion and dismisses this action with prejudice.
Bagheri, a homeowner and State Farm policyholder, filed a claim in 2020 after his residence was damaged by a large falling tree. State Farm inspected the residence and issued a payment that Bagheri deemed insufficient. Bagheri retained a public adjuster to prepare another estimate and requested that State Farm perform a second inspection. During the second inspection, State Farm determined that some of Bagheri’s claimed damage originated from a 2015 incident in which limbs from the same tree fell and damaged the same part of the house that Bagheri claimed was damaged in 2020. In 2015 Bagheri was insured by Farmers and filed an insurance claim, which Farmers paid, for the damage caused to his residence by the fallen tree limbs.
State Farm filed the instant summary judgment motion, contending that Bagheri’s breach of contract claim must be dismissed because he has not introduced sufficient evidence for a jury to reasonably segregate damage attributable solely to the covered event, i.e., to segregate between covered damages from the 2020 incident and non-covered damages from the 2015 incident.
Where, as here, a party moves for summary judgment on claims on which the opposing party will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovant’s claims. Once the moving party does so, the nonmovant must go beyond its pleadings and designate specific facts showing there is a genuine issue for trial. An issue is genuine if the evidence is such that a reasonable jury could return a verdict in the nonmovant’s favor. The nonmovant’s failure to produce proof as to any essential element of a claim renders all other facts immaterial. Summary judgment is mandatory if the nonmovant fails to meet this burden.
State Farm maintains that it is entitled to summary judgment on Bagheri’s breach of contract claim because he has failed to introduce admissible evidence that would enable a reasonable jury to segregate between covered and non-covered damages, as Texas law requires.
Because an insured can only recover 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. It is essential that the insured produce evidence which will afford a reasonable basis for estimating the amount of damage or the proportionate part of damage caused by a risk covered by the insurance policy.
Here, there is no evidence in the summary judgment record that would enable a jury to reasonably determine the damage that originated from the 2020 incident and the damage that preexisted Bagheri’s policy with State Farm (including from the 2015 incident). Tellingly, Bagheri’s designated causation expert, Peter de la Mora, a professional engineer, testified that he was unaware of the 2015 incident and claim at the time he prepared his expert report and therefore did not distinguish between damage from the 2020 incident and damage from the 2015 incident. Bagheri himself did not testify in his deposition about the cost of repairs from the 2015 incident. And although Bagheri produced an invoice from Roosevelt L. White Gleaming Floors, LLC (“Gleaming Floors”) that relates to the repairs to Bagheri’s residence after the 2015 incident, this invoice was untimely produced and is inadmissable under Fed. R. Civ. P. 37(c) because the failure to timely produce was not substantially justified and is not harmless.
Accordingly, because Bagheri has not introduced admissible evidence that would provide the jury a reasonable basis to segregate damage attributable solely to the covered incident, i.e., to segregate between covered and non-covered damages, State Farm is entitled to summary judgment dismissing his breach of contract claim.