Frymire Home Services, Inc. v. Ohio Security Insurance Co., No. 21-10012 (5th Cir. 2021)
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Plaintiffs filed suit against OSIC after OSIC denied their claim seeking coverage under plaintiffs' policy for damage caused by a hailstorm. The district court ultimately granted OSIC summary judgment.
The Fifth Circuit certified the following questions to the Supreme Court of Texas: (1) Whether the concurrent cause doctrine applies where there is any non-covered damage, including "wear and tear" to an insured property, but such damage does 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 bear the burden of attributing losses between that peril and other, non-covered or excluded perils that plaintiffs contend did not cause the particular loss; and (3) If so, whether plaintiffs can meet that burden with evidence indicating that the covered peril caused the entirety of the loss (that is, by implicitly attributing one hundred percent of the loss to that peril).
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