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Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
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January 08, 2025
The Insured Bears The Burden to Prove Loss Due to Peril Insured Against

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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00:08:22
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May 01, 2026
Zalma’s Insurance Fraud Letter – May 1, 2026

Happy Law Day

ZIFL – Volume 30, Issue 9 – May 1, 2026

Read the full article at https://www.linkedin.com/pulse/zalmas-insurance-fraud-letter-may-1-2026-barry-zalma-esq-cfe-2tywc, see the video at at and at https://zalma.com/blog plus more than 5300 posts.

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

ZIFL – Volume 30, Issue 9 – May 1, 2026

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year and is written by Barry Zalma.

DOJ Creates National Fraud Enforcement Division

Will the Feds Take on Insurance Fraud? Possibly as Part of a National Anti-Fraud Effort

On April 7, 2026, the Acting Attorney General, Todd Blanche, issued a memorandum establishing the Department of Justice National Fraud Enforcement Division (NFED). The memo describes an ambitious, but perhaps redundant, vision for this ...

00:08:23
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April 30, 2026
The Efficient Proximate Cause Doctrine Saves a Claim

When Abalone Died As a Result of Multiple Causes The Efficient Proximate Cause Requires Payment

Post number 5345

Read the full article at https://www.linkedin.com/pulse/efficient-proximate-cause-doctrine-saves-claim-barry-zalma-esq-cfe-yndlc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In American Abalone Farms, LLC v. Star Insurance Company et al., H052643, California Court of Appeals, Sixth District (April 27, 2026) the Court of Appeals dealt with an insurance coverage issue that required application of the efficient proximate cause doctrine.

FACTS

American Abalone Farms, LLC ("American Abalone" ) operates an aquaculture farm in Santa Cruz County, California, raising abalone in tanks. In August 2020, the CZU Lightning Complex Fires led to a prolonged power outage and road closures near the farm. As a result, the farm’s water pumps failed, causing the death of most of the ...

00:08:38
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April 29, 2026
Breach of a Specific Condition Precedent Is a Complete Defense

Breach of a Specific Condition Precedent Is a Complete Defense

See the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In United Services Automobile Association and State Farm Mutual Automobile Insurance Company v. Anthony Wenzell, 2026 CO 25 (Colo. Apr. 27, 2026) Anthony Wenzell was rear-ended in a car accident. He had a significant prior 2014 accident that required back surgery.

Wenzell claimed underinsured-motorist (UIM) benefits under three policies: (1) the tortfeasor’s liability policy, (2) his own primary UIM policy with State Farm, and (3) an excess UIM policy issued by USAA (under his brother’s policy, which contained an “other insurance” clause making USAA’s coverage excess over any collectible insurance).

After receiving the claims, both USAA and State Farm repeatedly requested that Wenzell execute comprehensive medical-release authorizations so they could obtain his full medical records and ...

00:11:27
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14 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

post photo preview
14 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

post photo preview
April 30, 2026
Investigation of First Party Property Claims

What Must be Done after Notice of a Claim is Received by the Insurer

Read the full article at https://lnkd.in/gzvvdkMZ and at https://zalma.com/blog.

Below you will read from this post until you reach the the end of this blog post as the free part of an Excellence in Claims Handling post. To read the full article and receive all articles for members of Excellence in Claims Handling you should consider joining as a paid member to get full access to articles for members only, to our news, analysis, insurance coverage, claims, insurance fraud and insurance webinars, by clicking at the subscription link below.

A first party property policy does not insure property: it insures a person, partnership, corporation or other entity against the risk of loss of the property. Before an insured can make a claim for indemnity under a policy of first party property insurance the insured must prove that there was damage to property the risk of loss of which was insured by the policy. The obligation imposed on the insured ...

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