Overstreet v. Allstate, 34 F.4th 496

Overstreet bought homeowner’s insurance covering wind and hail; his roof was ~3 years old at purchase.
Multiple hailstorms occurred: earlier storms (0.75" hail) before the policy and a severe June 6, 2018 storm (1.25" hail) after the policy began; Overstreet’s roof began leaking immediately after June 6.
Allstate’s adjuster estimated loss at $1,263.23 (below the deductible), so no payment; Overstreet’s expert (Earle) attributed the observed damage to the June 6 storm.
Allstate argued most damage was caused by preexisting wear/earlier hail (excluded), while Overstreet argued the covered June 6 hail was the sole cause.
The district court granted summary judgment for Allstate, concluding concurrent causation applied and Overstreet failed to segregate covered from non-covered damage; Overstreet appealed.
The Fifth Circuit concluded Texas law leaves key questions unresolved and certified three questions to the Texas Supreme Court rather than deciding the issues itself.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Does the concurrent causation doctrine apply when any non-covered damage (including wear and tear) exists even if that preexisting damage did not directly cause the particular loss?	Overstreet: No; minor or noncausal preexisting wear should not trigger apportionment when the covered peril itself produced the loss.	Allstate: Yes; any non-covered preexisting damage triggers the doctrine and requires apportionment.	Unresolved by Fifth Circuit — certified to the Texas Supreme Court.
2. If doctrine applies, must a plaintiff who alleges a covered peril alone caused the loss bear the burden to attribute losses between covered and non-covered perils?	Overstreet: He alleged the covered storm caused the entire loss; he should not be required to apportion when evidence supports sole causation.	Allstate: Yes; insured bears burden to segregate and prove the portion caused solely by the covered peril.	Unresolved — certified to the Texas Supreme Court.
3. If the plaintiff bears that burden, can the plaintiff meet it by presenting evidence that the covered peril caused 100% of the loss (i.e., implicitly attributing full loss to the covered peril)?	Overstreet: Yes; evidence that the covered storm solely caused the damage satisfies the segregation burden.	Allstate: No; courts require affirmative apportionment and may reject implicit 100% attribution absent specific allocation.	Unresolved — certified to the Texas Supreme Court.

Lyons v. Millers Cas. Ins. Co. of Texas, 866 S.W.2d 597 (Tex. 1993) (primary Texas case articulating concurrent causation rule requiring segregation of covered and noncovered losses).
Fiess v. State Farm Lloyds, 392 F.3d 802 (5th Cir. 2004) (discusses segregation requirement and certified a question to Texas Supreme Court in related context).
Frymire Home Servs., Inc. v. Ohio Sec. Ins. Co., 12 F.4th 467 (5th Cir. 2021) (recent similar Fifth Circuit decision that certified identical questions to the Texas Supreme Court).
Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d 300 (Tex. App.—San Antonio 1999) (holds apportionment required when noncovered damage exists).
Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d 558 (Tex. App.—San Antonio 2011) (treats concurrent causation as a fact question for the jury in some circumstances).
State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313 (Tex. App.—San Antonio 2002) (treats concurrent causation as fact issue when record lacks allocation findings).
Utica Nat. Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198 (Tex. 2004) (explains need for finder-of-fact determinations to resolve concurrent-cause disputes).