Texas Claims Are Getting Nasti: The Insured's Burdens

Law360, New York (March 2, 2015, 11:55 AM EST) -- Texas courts have long taken the position that "[w]hen covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reasonable basis on which to allocate damages."[1] "Failure to provide evidence upon which a jury or court can allocate damages between those that resulted from covered perils and those that did not is fatal to an insured party's claim."[2] This requirement is simply an extension of the insured's burden under Texas law to plead and prove that damages are covered in order to recover under its insurance policy.[3]

If an insured does, in...

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