Dallas Fort Worth Insurance Lawyer Blog
Insurance attorneys are well aware of the changes in the Texas Insurance Code statutes that effect hail damage claims and other damages resulting from Mother-Nature. What cannot not be overlooked is the responsibility to make clear what caused the claimed damages. In other words are all the damages from a particular event or are some of the damages being claimed the result of another event or are simply wear and tear.
A 2021, opinion from the Northern District of Texas, Fort Worth Division, explains the necessity of segregating damages in a claim for insurance coverage. The style of the opinion is, Harold Franklin Overstreet v. Allstate Vehicle and Property Insurance Company.
Pursuant to the 1999, San Antonio Court of Appeals opinion styled, Wallis v. United Servs. Auto. Ass’n, an insured can only recover for covered events under his policy; therefore, he bears the burden of segregating the damage attributable solely to the covered event.
In this case, Overstreet purports to have suffered hail damage to the roof of his dwelling and damage to the interior due to water leaks. His expert admits that there could have been other causes of damage for which he seeks recovery. With regard to the roof, Overstreet’s expert testified that it is widely accepted that hail of .75 inches in diameter is significant, i.e., causes damage. Because no one can date hail hits on a roof, experts rely on weather reports. The report in this case reflects a number of dates when the estimated hail size was .75 inches at plaintiff’s property address. The dates include May 10, 2016, July 4, 2016, April 6, 2018, and May 18, 2019. Overstreet’s expert basically ignored those dates and the damage that could have been caused and chose to depend on the date of June 6, 2018, when hail of 1.25″ hit and Overstreet maintained that the damage had occurred. As he testified, his job was to err on the side of the insured.
With regard to the interior of the dwelling, there were three rooms with water damage to the ceiling. Pertinent to Overstreet‘s claims, his policy does not cover interior damage unless it is caused by water entering an area of the roof or walls damaged by wind or hail. Here, Overstreet‘s expert testified that he did not observe any wind damage to the roof. He admitted that he could not tie water damage to a particular source. And, he did not know the date that water damage occurred to the floors. There were no holes in the attic. Some of the water that damaged the floor came in through a window.
In his declaration, Overstreet’s expert generally contended that all of the damages in his estimate arose from one date of loss. However, as defendant points out, the declaration is inconsistent with the expert’s deposition testimony. Thus, it cannot be used to create a fact issue to defeat defendant’s motion.
This was a summary judgment case filed by Allstate and the Judge ruled in Allstate’s favor.