Hail Damage Claims

Dallas area attorneys who handle hail damage claims need to read this opinion from the 5th Circuit Court of Appeals. The style of the case is, Vincent Stagliano v. The Cincinnati Insurance Company.
This is a first-party insurance dispute over coverage for damage to commercial property allegedly caused by a hailstorm. The District Court granted summary judgment in favor of Cincinnati.
The facts in this case are straightforward. Plaintiffs own a number of properties in and around Dallas, and Cincinnati provided loss protection from August 14, 2010, to August 14, 2011. On June 21, 2011, a claim was submitted for damage to one of the properties that occurred as a result of a hail storm on May 24, 2011. The claim was paid. A year and eight months later, claims for several other properties alleged to have been damaged in the same storm were submitted and Cincinnati denied these claims.
A lawsuit was filed for violations of the Texas DTPA and Insurance Code violations. Cincinnati took the position that the hail damage was the result of “multiple storms” and the burden was on Plaintiffs to establish the damage that occurred during the policy period. Plaintiffs evidence was from a structural engineer who concluded “based on my background, experience and evaluation of the meteorological events relating to this matter, hail in fact did occur on May 24, 2011” and “such hail was consistent with such damages I personally observed.”
The Court started by pointing out that under Texas law, it is clear that “proof that the claimed losses occurred during the policy period is an essential element of an insured’s coverage claim on which it bears the burden of proof.” Thus, Plaintiffs had to come forward with some evidence or indiction that the damage to their property was the event of May 24, 2011, and not another storm occurring outside the policy period. A single conclusory expert affidavit, devoid of factual support or explanation of the expert’s basis for concluding that observed damage occurred as a result of a particular hail storm with the policy period, was insufficient to meet Plaintiffs burden of designating specific facts showing there is a genuine issue for trial on this essential element of the insurance contract claim. There is a level of conclusoriness below which an affidavit must not sink if it is to provide the basis for a genuine issue of material fact and unsupported expert affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment.
The Court stated that the experts affidavit was little more than an allusion to his credentials, a recitation of the hail damage observed, and a conclusory, “subjective opinion” that the damage resulted from a hail storm within the policy period. Thus, the affidavit was insufficient to create a fact issue.