Homeowner Has Ultimate Burden to Identify Wind vs. Flood Damages


In Bayle v. Allstate Ins. Co., ___ F.3d ___, 2010 WL 3155921 (5th Cir. (La.) Aug. 11, 2010), the U.S. Fifth Circuit Court of Appeals, interpreting Louisiana law, addressed a “recurring question” in hurricane-related property insurance disputes: Who has the burden of identifying the portion of damages caused by a covered risk as opposed to the portion caused by a non-covered risk?

In 2005, Hurricane Katrina caused considerable damage to the homeowners’ property. The majority of the damage was caused by flooding, which was not covered under the homeowners’ policy at issue. Wind damage, which was covered under the policy, contributed to some missing shingles and broken windows. The insurer paid a sum to the homeowners for the wind-caused damages and the homeowners filed suit, alleging, among other things, that the insurer’s payment was inadequate. The district court granted the insurer’s motion for summary judgment based on the homeowners’ failure to proffer sufficient evidence to support their claim that additional, uncompensated damage was caused by wind, not flooding. The homeowners appealed.

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