Fifth Circuit Certifies Questions to Texas Supreme Court on Concurrent Causation Doctrine

    The Fifth Circuit certified unanswered questions on the concurrent causation doctrine to the Texas Supreme Court. Overstreet v. Allstate Vehicle & Prop, Ins. Co., 2022 U.S. App. LEXIS 13582 (5th Cir. May 19, 2022).

    The insured alleged that a hail storm damaged his roof. The roof was three years old when he purchased a policy from Allstate. An adjuster sent by Allstate valued the loss at $1,263.123, less than the policy deductible. Allstate contended that the roof damage was due to uncovered causes, namely a combination of wear and tear and earlier hail storms that hit the roof before the insured purchased the policy. The insured disagreed because the roof had never leaked before the hail storm, but only after the storm. The insured’s expert inspected the roof and determined it had been damaged by hail. The district granted Allstate’s motion for summary judgment because the insured had not carried his burden of proving how much damages came from the hail storm alone. 

    On appeal, the Fifth Circuit noted that Texas’s concurrent causation doctrine instructed that “when covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reasonable basis on which to allocate the damage.” But questions remained about when the doctrine applied, and what plaintiffs had to prove when it did.

    The Fifth Circuit therefore certified three questions to the Texas Supreme Court:

1) Whether the concurrent cause doctrine applied where there was any non-covered damage, including “wear and tear,” but such damage did not directly cause the particular loss eventually experienced by plaintiffs.

2) If so, whether plaintiffs alleging that their loss was entirely caused by a single, covered peril, bore the burden of attributing losses between that peril and other, non-covered or excluded perils that plaintiffs contended did not cause the loss; and

3) If so, whether plaintiffs could meet that burden with evidence indicating that the covered peril caused the entirety of the loss.