Proof of Accidental Direct Physical Loss Shifts Burden to Insurer on an All Risk Policy
Post 5024
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Insured Must Prove Actual Loss Causing Peril to Claim on Named Peril Policy
In Mark Alan Barger, Jr.; Margie Barger v. State Farm Fire and Casualty Company, No. 24-60178, United States Court of Appeals, Fifth Circuit (March 7, 2025) the difference between the burden of proof needed for an “all risk” coverage and named peril coverage.
Mark Alan Barger, Jr., and Margie Barger (“the Bargers”) appealed the district court’s grant of summary judgment in favor of their homeowners’ insurer, State Farm. The Bargers contended that the district court, in evaluating their insurance claim, erroneously assigned them the burden of proving that a specified “named peril,” or “covered event,” caused damage to their roof and necessitated its replacement.
FACTS
In June 2021, a storm in Greenwood, Mississippi, caused significant rainfall, leading to rainwater leaking through the Bargers’ roof and interior ceilings, causing damage to multiple rooms in their house. State Farm refused to cover the cost of replacing the entire roof, concluding that only nine wind-damaged shingles and a small area of roofing membrane were covered by the policy. The Bargers eventually paid for a new roof in March 2022 and subsequently sued State Farm for breach of contract.
The district court granted summary judgment in favor of State Farm, reasoning that the Bargers failed to prove that a covered event caused the additional damage.
ANALYSIS
Under Mississippi law, when an insured makes a claim under an “all-risk” coverage the insured (the Bargers) only needed to prove that an “accidental direct physical loss” occurred to their dwelling. Once established, the burden shifted to the insurer (State Farm) to prove that a policy exclusion applied.
State Farm maintained that the district court’s reference to Coverage B, rather than Coverage A, had no impact on the application of the burden of proof and was nothing more than a clerical error [that] did not affect the outcome of the case and should be disregarded as harmless.
The language of the “Coverage A-Dwelling” section of the Bargers’ State Farm policy unquestionably provided “all-risk” coverage, whereas the “Coverage B- Personal Property” section only covered property loss caused by certain specified perils the “named perils” coverage of “Coverage C-Personal Property.” The Bargers were required to prove, by a preponderance of the evidence, that the “direct physical loss” to the property described in Coverage C was caused by wind.
The Fifth Circuit was convinced that the district court improperly allocated the burden of proof regarding causation to the Bargers, rather than to State Farm. The Fifth Circuit was not convinced that the error had no impact on the district court’s summary judgment decision and, therefore, the Fifth Circuit reversed the district court’s summary judgment ruling, vacated the dismissal of the Bargers’ breach of contract claim, and remanded the case for further proceedings.
ZALMA OPINION
The State Farm policy contained two different types of coverage: (1) an all risk policy for the structure and (2) a named peril coverage for the contents. The District Court erroneously applied the named peril coverage to the entire claim when it should have applied the “all risk” requirements to structure and named peril requirements to the contents. The Bargers fulfilled the all risk requirement but may not have fulfilled the named peril requirement for loss to their contents so the court reversed and returned the case to the District Court to rule on both aspects of the policy.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Post 5196
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You Plead Guilty You Must Accept the Sentence
In Commonwealth Of Pennsylvania v. Mark D. Redfield, No. 20 WDA 2025, No. J-S24010-25, Superior Court of Pennsylvania (September 19, 2025) the appellate court reviewed the case of Mark D. Redfield, who pleaded guilty to third-degree murder for killing April Dunkle with malice using a rifle.
Affirmation of Sentence:
The sentencing court’s judgment was affirmed, and jurisdiction was relinquished, concluding no abuse of discretion occurred.
Reasonable Inference on Trigger Pulling:
The sentencing court reasonably inferred from the guilty plea facts that the appellant pulled the trigger causing the victim’s death, an inference supported by the record and consistent with the plea.
Guilty Plea Facts:
The appellant admitted during the plea hearing...
The Judicial Proceedings Privilege
Post 5196
Posted on September 25, 2025 by Barry Zalma
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Judicial Proceeding Privilege Limits Litigation
In David Camp, and Laura Beth Waller v. Professional Employee Services, d/b/a Insurance Branch, and Brendan Cassity, CIVIL No. 24-3568 (RJL), United States District Court, District of Columbia (September 22, 2025) a defamation lawsuit filed by David Camp and Laura Beth Waller against Insurance Branch and Brendon Cassity alleging libel based on statements made in a letter accusing them of mishandling funds and demanding refunds and investigations.
The court examined whether the judicial proceedings privilege applieD to bar the defamation claims.
Case background:
Plaintiffs Camp and Waller, executives of NOSSCR and its Foundation, sued defendants Insurance Branch and Cassity over a letter alleging financial misconduct and demanding refunds and audits. The letter ...
Misrepresentation or Concealment of a Material Fact Supports Rescission
Post 5195
Don’t Lie to Your Insurance Company
See the full video at and at https://rumble.com/v6zefq8-untrue-application-for-insurance-voids-policy.html and at https://zalma.com/blog plus more than 5150 posts.
In Imani Page v. Progressive Marathon Insurance Company, No. 370765, Court of Appeals of Michigan (September 22, 2025) because defendant successfully established fraud in the procurement, and requested rescission, the Court of Appeals concluded that the Defendant was entitled to rescind the policy and declare it void ab initio.
FACTS
Plaintiff's Application:
Plaintiff applied for an insurance policy with the defendant, indicating that the primary use of her SUV would be for "Pleasure/Personal" purposes.
Misrepresentation:
Plaintiff misrepresented that she would not use the SUV for food delivery, but records show she was compensated for delivering food.
Accident:
Plaintiff's SUV was involved in an accident on August ...
How a Need for Profit Led Health Care Providers to Crime
Post 5185
Posted on September 8, 2025 by Barry Zalma
See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q
This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers.
The Dishonest Chiropractor/Physician
How a Need for Profit Led Health Care Providers to Crime
See the full video at and at
This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
How Elderly Doctors Fund their ...
How a Need for Profit Led Health Care Providers to Crime
Post 5185
Posted on September 8, 2025 by Barry Zalma
See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q
This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers.
The Dishonest Chiropractor/Physician
How a Need for Profit Led Health Care Providers to Crime
See the full video at and at
This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
How Elderly Doctors Fund their ...
Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
