Tag Archives: Burden of Proof

Court Rejects Jury Instruction Inconsistent with Concurrent Causation Doctrine; Remands for New Trial

In December of 2016, I wrote about Sebo v. American Home Assurance Company,1 where the Florida Supreme Court reversed the appellate court’s adoption of the “Proximate Efficient Cause” doctrine and found that instead, the lower court should have applied the “Concurrent Causation Doctrine,” as laid out in Wallach v. Rosenberg,2 in a situation where both … Continue Reading

Court Finds Burden of Proof For Sinkhole Loss Was Improperly Placed On Homeowner

Florida’s Second District Court of Appeal recently reversed final judgment against a homeowner and remanded for a retrial after a jury was instructed that the insured had to prove the damages to his home were caused by a sinkhole. The case, Mejia v. Citizens Property Insurance Corporation,1 stemmed from an insurance claim brought by a … Continue Reading

With an All-Risk Policy, Does the Policyholder Have to Specify What the Covered Peril Is?

We have often discussed the importance of the type of insurance policy involved and the difference it makes from a coverage perspective. For example, the burden of proof is different between a named-peril policy and an all-risk policy. Knowing the difference is important, and knowing what your rights are under the policy you have purchased … Continue Reading

Policyholders’ Burden Of Proof Under All-Risk Policies Is Characterized As “Relatively Light”

In litigation, parties’ burdens of proof are extremely important. Litigators must understand the burdens of proof applicable to the case they are involved in. Think of the difference between having to prove that a loss is covered pursuant to specific policy terms and having to prove only that a loss that was fortuitous and it … Continue Reading

Concurrent Causation: A Texas Policyholder’s Burden of Proof Regarding Segregation of Damages

On January 4, 2011, I discussed the case of Nat’l Fire Ins. Co. of Pittsburgh, PA v. Valero Energy Corp., 777 S.W.2d 501 (Tex.App.—Corpus Christi 1989, writ denied). Nat’l Fire taught us that an otherwise excluded peril could be covered under an insurance policy if the policyholder could demonstrate that the excluded peril itself was … Continue Reading

Texas Judges Need to Recognize That Insurance Companies Have to Prove Exclusions: Dispelling the Myths of Insurance Texas All Risk Coverage Burdens

An “all-risk” insurance policy provides coverage for all fortuitous losses, less enumerated exclusions. Imperial Ins. Co. v. Ellington, 498 S.W. 2d 368, 371 (Tex. App.- San Antonio 1973, writ denied). Generally under an all-risk policy, the insured need only prove a fortuitous event resulted in a loss. Id. at 375. If the all-risk policy excludes coverage, … Continue Reading

When Insurers Hide Behind their Experts in Texas

One strategy insurance companies use to avoid bad faith liability is claiming that they reasonably relied on their experts’ reports to deny a claim. Texas law on bad faith states that an insurer breaches its duty of good faith when: (1) denies or delays payment of a claim for which liability is reasonably clear, and … Continue Reading

Who has the Burden of Proof Regarding Damages in Texas?

When a home or business is damaged by a covered peril (windstorm, fire, hail, etc.), the insured typically makes a claim with its insurance carrier. The insurance carrier then sends either an insurance adjuster or an independent adjuster to estimate the damage and issues a check to the insured. From this common scenario, it would … Continue Reading

Texas Insurance Causation Doctrine “Is What It Is” And It Needs to Be Changed

While writing last week’s post, Texas Windstorm Insurer Settles 2,400 Hurricane Ike Slab Claims, I almost quoted Texas attorney Steve Mostyn, who explained that Texas law really left no other rational choice. Burdens of proof are crucial when it comes to close cases, and Texas places a unique and difficult coverage burden on policyholders. An … Continue Reading

Late Notice Of The Claim Part 5 – In Florida, Different Presumptions Arise Depending On Whether We Are Discussing A Policy Notice Provision Or A Policy Cooperation Clause

As previously noted in the first four posts of the Hurricane Law series discussing Late Notice of Claims, in Florida, if a policyholder does not timely report an insurance claim to the insurance carrier, prejudice to the insurer will be presumed. This presumption may be rebutted by a showing that the insurer was not prejudiced … Continue Reading

Florida and Texas Courts Have a Slightly Different View of Insurance Causation Burdens of Proof: Part I

Since last May, just before we opened our Houston office, I have been reviewing and pondering causation and burdens of proof found in Texas insurance cases. While writing yesterday’s post regarding sinkhole coverage cases, I came across two Florida cases that demonstrate Florida’s view that policyholders truly have minimal proof requirements coverage under all-risk property insurance … Continue Reading
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