Lack of Evidence Supports Motion for Summary Judgment in Favor of Insurer
Post 4968
To Prove a Claim for Hailstorm Damage Admissible Evidence of Covered Loss is Needed from Insured
Kimberly and Michael Cutchall sued their homeowner’s insurance provider, Chubb Lloyd’s Insurance Company of Texas. Chubb disputed that there was water damage caused by a storm and claims that it already issued payment to the Cutchalls for all of the covered losses.
In Kimberly Cutchall and Michael Cutchall v. Chubb Lloyd’s Insurance Company Of Texas, Civil Action No. 23-3745, United States District Court, S.D. Texas, (December 31, 2024) the USDC ruled on the insurer’s Motion for Summary Judgment.
BACKGROUND
The Insurance Claim
Kimberly and Michael Cutchall were insured by Chubb providing coverage for certain type of damages to their home. The policy insured against “risks of physical loss to the property,” subject to several exceptions.
In September 2021, the Cutchalls submitted an insurance claim to Chubb for water damage to their house. Chubb retained Nelson Forensics, LLC to inspect the Cutchalls’ house. The report from Nelson Forensics concluded that the moisture in the house was due to deterioration or deficiencies in the way the house was built, not storm damage.
Nelson Forensics prepared a supplemental. The report stated that the roof damage was “unrelated to wind or hail from any storm event.”
Chubb sent a letter to the Cutchalls explaining the results of its investigation, including that the damage to the Cutchalls’ house was “a result of several different causes of loss including a hail event prior to 2020, roof distress unrelated to wind or hail, as built defects, changes in temperatures between the interior and the attic space, prior plumbing leaks, and localized movement.” Chubb issued a $27,385.81 payment to the Cutchalls for covered damages. The Cutchalls never cashed the check.
THE LITIGATION
The Cutchalls sued Chubb for breach of contract and bad faith and designated Mr. Halliday and independent adjuster, Brandon Allen, as an expert. Chubb retained a meteorologist, David Finfrock, to assess whether a hailstorm could have damaged the Cutchalls’ home on August 16, 2021, as Mr. Allen contended. After analyzing the data relied upon by Mr. Allen, along with multiple other sources of weather data, Mr. Finfrock concluded that “there is no evidence of hail at [the Cutchalls’ address] ¶ 16 August 2021.”
Chubb filed a motion for summary judgment on all of the Cutchalls’ claims.
THE SUMMARY JUDGMENT MOTION
Chubb filed its motion for summary judgment nearly a year after removing the case and the Cutchalls had not requested any depositions.
The Breach of Contract Claim
The Cutchalls’ breach of contract claim failed for two reasons: first, the Cutchalls have failed to point to evidence raising a dispute about whether their claim was covered; and second, the Cutchalls have failed to distinguish between covered and uncovered damages.
Failure to Identify Covered Loss
Under Texas law, the insured bears the burden of establishing that its claim is covered by the policy. Unconfirmed rumors of loss are insufficient to satisfy that burden.
Two of Chubb’s experts established that there were no hail or wind storms at the Cutchalls’ address during the policy period that could have caused the damage they claimed to their house.
No reasonable juror could believe the Cutchalls’ lack of evidence over Chubb’s. Because no genuine dispute existed over whether a covered loss occurred during the policy period, summary judgment on the Cutchalls’ breach of contract claim was granted.
The Extra-Contractual Claims
An insurer breaches its duty of good faith and fair dealing by denying a claim when the insurer’s liability has become reasonably clear. Chubb investigated the Cutchalls’ claim and concluded that the covered losses, minus the deductible, amounted to $27,385.81. Chubb issued a payment in that amount. The Cutchalls never cashed the check. The Cutchalls have failed to raise a genuine dispute of material fact as to whether they suffered additional losses covered by the policy.
All of the Cutchalls’ claims are dismissed with prejudice.
ZALMA OPINION
It is axiomatic that not every damage to a dwelling is covered under a homeowners policy. Chubb’s experts established some damage but not the excessive damage claimed by the Cutchalls. Chubb’s motion for summary judgment contained convincing evidence that there was no covered loss causing damage to the Cutchalls home and there was insufficient, if any, evidence provided by the Cutchalls establishing a covered law. It is insufficient to prove a loss to rely on two adjusters whose lack of expertise and conclusions based on inadequate evidence, is insufficient.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
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Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
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Post 5217
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
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Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
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Post 5210
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My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
