When both a covered risk and a non-covered risk cause some of the property damage, which party bears the burden of identifying the discrete items of property that were damaged and proving what portion of the damage was caused by a non-covered or excluded risk?  See Bayle v. Allstate Ins. Co., 2010 U.S. App. LEXIS 16635 (5th Cir. Aug. 11, 2010).

  The insureds' home was damaged by Hurricane Katrina.  After the insureds evacuated, eight to ten feet of water (mixed with escaped oil from a nearby storage tank) flooded their one-story house.  Little of the damage appeared to have been caused by wind.  An adjuster observed severe damage to the interior and contents of the house, all of which were attributed to flood.  Further, few window panes were broken.   Policy limits of $105,000 were paid under the flood policy.  But only $17,560.73 was paid for wind damage under the homeowners policy.

   The insureds sued and Allstate moved for summary judgment.  The district court granted Allstate's motion because the insureds failed to point to any wind damaged items for which Allstate had not already compensated them.

   On appeal, the Fifth Circuit noted that Allstate did not contest that a covered peril (wind) caused some damage to some of the insureds' property.  The question was which particular items of property were damaged by wind.  The insureds never identified which particular damaged items had gone uncompensated or under-compensated under their policy's coverage for structural damage.  They simply presented the court with a line-item cost estimate to repair all the damage to their property, without attempting to explain which portion of those costs were attributable to wind-caused damage. 

   When Allstate presented evidence sufficient to establish a prima facie case that flood, not wind, caused any uncompensated or under-compensated damage complained of by the insureds, the burden of production shifted to the insureds to offer rebuttal evidence sufficient to create a genuine issue of material fact as to which, if any, uncompensated items of damage were caused by wind.  Summary judgment was proper because the insureds failed to bear their burden of production after Allstate produced evidence identifying those items of damage that were excluded from wind coverage because they were caused by flood.