IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30161

WILLIAM BAYLE; DARLENE BAYLE

Plaintiffs - Appellants

v.

ALLSTATE INSURANCE COMPANY

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.

WIENER, Circuit Judge:

In this appeal, we are called on to address one of the recurring questions

encountered in hurricane-related property insurance disputes that are governed

by Louisiana law: When the insured and the insurer agree that both a covered

risk and a non-covered or excluded risk caused some of the damage incurred by

the insured property, which party must bear the burden of identifying the

discrete item or items of property that were damaged and proving what portion

of the damage was caused by the non-covered or excluded risk? Here, siblings

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2010

Lyle W. Cayce

Clerk

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William and Darlene Bayle sued Defendant-Appellant Allstate Insurance

1

Company (“Allstate”), which had issued the Bayles’ homeowners policy. They

alleged that (1) Allstate failed to indemnify them adequately for wind-caused,

structural damage to their property, and (2) Allstate wrongly employed the

2

“actual cash value” (“ACV”) of the property rather than the “building structure

reimbursement” standard to calculate the dollar amount of structural damage

caused by wind. The Bayles also claim statutory penalties against Allstate,

alleging that it arbitrarily and capriciously refused to pay their wind damage

claims timely. The district court granted Allstate’s motion for summary

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judgment and dismissed the Bayles’ action. We affirm.

4

I. Facts & Proceedings

A. Background

Hurricane Katrina caused considerable damage to the Bayles’ property in

Chalmette, Louisiana. Ms. Bayle evacuated before the storm, and no one was

present in the house when eight to ten feet of water (mixed with escaped oil from

a nearby Murphy Oil storage tank) flooded the Bayles’ one-story house. The

damage to the house and a storage shed was, by all accounts, extensive,

Only Darlene Bayle occupied the insureds single-family, single-story residence at 1

issue here.

 In the district court, the Bayles also challenged the amount that they recovered for 2

damage to contents and “additional living expenses” (“ALE”) in the district court, but they

appear to have waived entirely their contents and ALE claims on appeal. 

LA. REV. STAT. ANN. §§ 22:1220 & 22:658, redesignated §§ 22:1973 & 1893 by Acts 3

2008, No. 415, §1, eff. Jan. 1, 2009. .

The district court had also granted Allstate’s motion to exclude a supplemental expert 4

report by the Bayles’ expert. The Bayles do not appeal the exclusion of their supplemental

expert report. 

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although the record reveals that little of the damage appears to have been

caused by wind. Ms. Bayle testified that, when she returned to view the

5

wreckage, she saw just one cracked window pane in one of the bedrooms and

that she was not able to look in the attic for roof damage. In his deposition

testimony, Mr. Bayle noted that, when he viewed the damage in November 2005,

he saw one or perhaps two small window panes that were broken, but conceded

that these could have been damaged by vandals. Neither of the Bayles was able

to identify or specify any structural damage that had gone uncompensated or,

for that matter, any items damaged by wind whose repair costs exceeded the

amount paid by Allstate; the Bayles’ expert’s report was silent on both issues.

In October 2005, the first claims adjuster was sent by Allstate to inspect

the Bayles’ property. He noted that the water line on the exterior of the house

was ten feet above grade level and that an interior water line was eight feet

above floor level. He observed severe damage to the interior and to the contents

of the house, all of which he attributed to flood. He added that no contents could

have been salvaged. Subsequent adjusters for Allstate inspected the roof and

found a number of shingles missing and some damage to the gutters, but saw no

substantial structural damage. They also reported that the storage shed had lost

a side window to wind and that some items inside the shed appeared to have

been exposed to rain water before the flood water arrived.

Aronson v. State Farm Fire and Casualty Co., 969 So.2d 671, 675 (La. App. 4th Cir. 5

2007) (explaining that evidence of a “wind-created opening and the passage of rain through

those openings into the damaged property are conditions precedent to recovery” and that “[i]n

order to satisfy the aforementioned conditions, the insured need not establish that the wind

actually created a hole in the structure, but instead must only demonstrate that the direct

force of the wind created an opening in the building through which water entered.”) (citing

COUCH ON INSURANCE § 153:17 (3d ed. 2006)). 

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At the time of the hurricane, the Bayles’ property was insured under an

Allstate homeowners policy that covered wind damage and under a separate,

National Flood Insurance Policy (“NFIP”) that covered flood damage. As the

administrator of the federal flood policy, Allstate paid the Bayles the full policy

limits of $75,000 for structural damage and $30,000 for contents, for a total of

$105,000 in flood damage. Under its homeowners policy, Allstate paid the Bayles

$3,628.87 for structural damage to the roof, $8,804.22 for personal property, and

$5,127.64 in additional living expenses (“ALE”), for a total of $17,560.73 in wind

damage.

The overall damage to the house was sufficiently severe that the Bayles

elected not to repair it; instead, they “sold” it and the lot for $64,000, unrepaired,

to Murphy Oil in connection with the settlement of their petroleum spill claim.

The remnants of the house were subsequently demolished. The record does not

reflect that either of the Bayles objected to or otherwise contested Allstate’s

adjustment of their claim before they filed suit in August 2007. In doing so, the

Bayles joined twenty-eight other state court plaintiffs.

B. District Court Proceedings

In February 2008, following removal from state court, the district court

ordered the cases severed, and the Bayles filed their individual complaint the

next month. In November 2008, Allstate filed a motion for summary judgment

seeking dismissal of the Bayles’ action.

The Bayles’ homeowners policy provides that, if the insureds do not repair

their damaged property, payment under the policy “will be on an actual cash

value basis.” In support of its motion for summary judgment, Allstate offered

three expert-witness reports to substantiate the ACV of the Bayles’ property and

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to justify the sums that Allstate had already paid them under its policy’s wind

coverage. Allstate’s first expert report, prepared by Timothy O’Brien in

November 2008, offered a “drive-by” market-value appraisal of the then-vacant

lot, and determined its ACV to be $10,000.

Allstate offered a second expert report by an engineering and construction

firm, O’Keeda Company, LLC (“O’Keeda”), which reviewed the damage to the

house relative to the payments made under the flood and wind policies. O’Keeda

too performed its review in November 2008, basing it on photographs,

videotape, adjusters’ reports, and the Bayles’ deposition testimony. The O’Keeda

report stated that the roof of the house was “completely unscathed,” with the

exception of some missing shingles, and concluded that adequate compensation

had been paid for all damage caused by wind. In a supplemental report, again

from November 2008, O’Keeda concluded that the ACV of the damage incurred

by the Bayles’ property totaled $108,220.00. Allstate’s earlier ACV estimate of

the house, as detailed in its NFIP Final Report and dated October 25, 2005, had

stated that the ACV of the house was $74,284.80.

In opposing Allstate’s motion for summary judgment, the Bayles’ only

submission was a report prepared by Steven Hitchcock, a claims adjuster who

estimated the total cost of repairing and replacing the house. He based his

conclusions on interviews with the Bayles and computer software used to

estimate insurance, restoration, and remodeling costs. After offering a line-item

listing of the materials and labor needed to restore the entire property,

irrespective of whether the cause of the damage was wind or flood, or a

combination of both, Hitchcock concluded that the total replacement cost value

(“RCV”) of the Bayles’ house was $182,863.13. He ventured no ACV.

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The district court granted Allstate’s motion for summary judgment,

dismissing the Bayles’ action. Relevant to this appeal, the court held that (1)

6

Louisiana law places the burden of segregating covered and non-covered losses

on the insured, (2) as the Bayles had failed to point to any wind damaged items

for which Allstate had not already compensated them, they were not entitled to

any additional compensation for structural damage from wind; (3) ACV, not

RCV, was the proper valuation standard for calculating the quantum of damages

in this particular claims process, so the Bayles were not entitled to statutory

penalties; and (4) the Bayles had adduced no competent evidence to support

their assertion that Allstate had mishandled their claims. The Bayles timely

7

filed their notice of appeal.

II. ANALYSIS

A. Applicable Law & Standard of Review

When, as here, jurisdiction is based on diversity, we apply the forum

state’s substantive law. The parties agree that Louisiana law applies.

8

We review a district court’s grant of summary judgment de novo.

Summary judgment should be granted only if there is no genuine issue of

material fact. A fact is material only if its resolution would affect the outcome

9

The district court also granted Allstate’s motion to exclude a supplemental expert 6

report by Hitchcock, which addressed the issue of “segregating” covered from non-covered

losses, finding it untimely and prejudicial to the defendant. The Bayles have waived this issue

on appeal, so we do not address it. 

Bayle v. Allstate Insur. Co., No. 08-1319, 2008 WL 5054572, at *2 (E.D.La., Nov. 21, 7

2008). 

 Erie R.R. v. Tompkins, 304 U.S. 64 (1938). 8

Weeks Marine Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). 

9

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of the action, and an issue is genuine only “if the evidence is sufficient for a

reasonable jury to return a verdict for the nonmoving party.” “If the burden at

10

trial rests on the non-movant, the movant must merely demonstrate an absence

of evidentiary support in the record for the non-movant’s case.” Once a party

11

meets the initial burden of demonstrating that there exists no genuine issue of

material fact for trial, the burden shifts to the non-movant to produce evidence

of the existence of such an issue for trial. The non-movant must go beyond the

12

pleadings and present specific facts indicating a genuine issue for trial. On

13

appeal we may affirm a grant of summary judgment “on any legal ground raised

below, even if it was not the basis for the district court's decision.”

14

B. Burdens of Proof & Burdens of Production

The parties vociferously disagree whether it is the insurer or the insured

who must bear the burden of proving that the damage for which recovery is

sought was caused by an insured risk (wind) or by an non-insured or excluded

risk (flood) when, as here, both wind and flood contributed to the overall damage

incurred by the property. Neither party contends that any applicable provision

15

Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citing Anderson

10

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 

 Miss. River Basic Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). 

11

Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). 

12

Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). 

13

Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 14

2003) (citing In re Williams, 298 F.3d 458, 462 & n. 5 (5th Cir. 2002)). 

The Bayles also assert in the alternative that federal law requires the insurer to 15

“segregate” or “allocate” damage. The Bayles point to federal law governing private insurers

who administer federal flood insurance policies, and contend that particular provisions require

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of the Allstate policy is ambiguous, and the Bayles do not seek—as have

insureds in other cases—additional benefits under a named peril policy or under

a policy that contains an anti-concurrent cause provision. And, unlike many

16

hurricane-damaged properties, the Bayles’ house was not reduced to its

foundations or to but a slab. As framed by the parties, the issue is simply

whether Allstate has the burden of proving that all uncompensated damage was

caused by flood and thus not covered by its policy’s wind provision, or whether,

17

instead, Allstate may be granted summary judgment merely by pointing out the

Bayles’ failure to proffer sufficient evidence to support their claim that wind,

rather than flood, caused their uncompensated (or under-compensated) damage.

The Bayles rely on language from our recent decision in Dickerson v.

Lexington Insurance Company in asserting that, because both sides agree that

18

some damage was caused by wind, the burden shifts to Allstate to put forward

evidence that the additional compensation sought for wind-caused damage in

fact relates to flood-caused damage. Allstate counters with two alternative

such private insurers to adjust both flood and wind claims simultaneously. The Bayles fail to

take into account that no federal “single adjuster” program was ever created. 34 C.F.R. §

63.23(i)(1). As the Bayles cite no authority to support the proposition thatthis federal program

was intended to displace state law governing the burdens of proof and production in breach

of insurance contract claims, we do not address this contention.

For our discussion and analysis parsing the relative evidentiary burdens in the 16

presence of those types of insurance contracts, see, e.g., Grilletta v. Lexington Ins. Co.

558 F.3d 359 (5th Cir, 2009); Broussard v. State Farm Fire and Cas. Co., 523 F.3d 618 (5th

Cir. 2008); Tuepker v. State Farm Fire & Casualty Co., 507 F.3d 346, 350-53 (5th Cir. 2007);

Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 423 (5th Cir. 2007).

This assumes, of course, that the insureds are or would be able to identify any 17

uncompensated damage.

 556 F.3d 290, 294-95 (5th Cir. 2009).

18

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interpretations of Dickerson. It first contends that Dickerson did not change the

“burden-shifting” rule articulated by the Louisiana Supreme Court in Jones v.

Estate of Santiago, on which Dickerson expressly relied. Alternatively, Allstate

19

insists that our statement in Dickerson regarding the allocation of the burdens

of proof under Louisiana law was dictum. We consider these contentions in

20

turn.

1. Dickerson & Jones

When we apply state law, we “are bound to apply the law as interpreted

by the state’s highest court.” “If damage to immoveable property is covered, in

21

whole or in part, under the terms of the policy of the insurance, the burden is on

 870 So.2d 1002, 1010 (La. 2004).

19

There does appear to be a lack of unanimity in the Eastern District of Louisiana 20

regarding the effect of Dickerson’s pronouncements. Some judges of that court appear to have

adopted the view that Dickerson’s discussion of the shifting burden of production under

Louisiana law was dictum; others have expressed or demonstrated confusion regarding the

rule it articulated. See, e.g., Adams v. Lexington Insur. Co., No. 06-11388, 2009 WL 362446,

at *3 (E.D. La. February 11, 2009) (holding that “[t]he Court agrees that the [pertinent]

language in Dickerson is dicta.”); Weiser v. Horace Mann Insur. Co., No. 06-9080, 2009 WL

5194970, at *4, n. 21 (E.D. La. April 6, 2009) (noting that “the Court expresses doubt that the

Fifth Circuit actually altered the state of the law” in Dickerson); Pontchartrain Gardens v.

State Farm Insur. Co.,No. 07-7965, 2009 WL 86671, at *11 (E.D.La January 13, 2009) (holding

that “State Farm’s motion mistakenly assumes that plaintiffs have the initial burden of

segregating their wind and water damage. But under Dickerson, plaintiffs must prove only

thatthe insured property sustained some wind damage.”); Lightell v. State Farm Fire and Cas.

Co., --- F.Supp.2d ---, 2009 WL 4505942, at *3 (E.D.La. 2009) (rejecting insurer’s argument

that “the Fifth Circuit’s interpretation of the burden shifting is simply dicta” and holding that

“the holding in Dickerson and that the analysis of the burden shifting test was not dicta,” and

mandated that “Plaintiffs’ burden at trial will be to prove that they are entitled to additional

payments to damage to their property. Plaintiffs do not have the burden of segregating the

damages based on covered and non-covered perils.”).

FDIC v. Abraham, 137 F.3d 264, 267-68 (5th Cir. 1998). 21

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the insurer to establish an exclusion under the terms of the policy.” As we

22

explained in Dickerson, the Louisiana Supreme Court in Jones addressed the

respective proof burdens of the insurer and the insured, explaining that “the

insured bears [sic] the burden of proving a policy of insurance affords coverage

for an incident, [and] the insurer bears [sic] the burden of proving the

applicability of an exclusionary clause within a policy.”

23

The plaintiff in Jones sought to recover damages from the defendant’s

homeowners policy for the shooting death of the plaintiff’s wife. Because the

shooting had to be either intentional or accidental and could not be both, the

Louisiana Supreme Court was confronted with a straightforward issue of

coverage: Was the shooting in question a covered risk (accidental death), or was

coverage nullified by an exclusion? In Jones, the court ruled that the insurer’s

evidence in support of its motion for summary judgment “made a prima facie

showing that the motion [for summary judgment] should be granted. At that

point, the burden shifted to the plaintiff to present evidence demonstrating there

remained a material issue of fact as to the issue of whether the shooting was

accidental such that the exclusion did not apply.”

24

In Dickerson, we applied the rule articulated in Jones—a summary

judgment proceeding—to an appeal challenging the sufficiency of the evidence

to support a verdict for the insured rendered at the conclusion of a bench trial.

Like the Bayles, the insured in Dickerson filed suit against the provider of his

LA. STAT. ANN. REV. § 22:658(2)(B)(2007) redesignated § 22:1893(2)(B) by Acts 2008, 22

No. 415, §1, eff. Jan. 1, 2009.

Jones, 870 So.2d at 1010. 23

Id. at 1011-1012 (emphasis added).

24

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homeowners insurance, Lexington, alleging that it had breached the insurance

contract by failing to pay the full amount owed under the policy. Also like the

Bayles, the insured in Dickerson sought damages and statutory penalties for bad

faith under Louisiana law. And, like the Bayles’ policy with Allstate,

25

Dickerson’s policy with Lexington excluded coverage of damage from flood.

Unlike the district court in the instant case, however, the district court in

Dickerson adjudicated the claim after a bench trial, ruling in favor of Dickerson.

On appeal in Dickerson, Lexington specifically challenged the sufficiency

of the evidence offered to prove that the damage was caused by wind. Because

our review of the sufficiency of the trial evidence turns on the answer to the

question which party had the burden of proof at trial, we articulated the

respective burdens of production on the insurer and the insured under Louisiana

law, stating that:

[u]nder Louisiana law, the insured must prove that the claim

asserted is covered by his policy. Jones v. Estate of Santiago, 870

So.2d 1002, 1010 (La. 2004); Comeaux v. State Farm Fire & Cas.

Co., 986 So.2d 153, 157-58 (La. App. 5th Cir. 2008). Once he has

done this, the insurer has the burden of demonstrating that the

damage at issue is excluded from coverage. Jones v. Estate of

Santiago, 870 So.2d at 1010. Thus, once Dickerson proved his home

was damaged by wind, the burden shifted to Lexington to prove that

flooding caused the damage at issue, thereby excluding coverage

under the homeowners policy. As no one disputes that at least some

of the damage to the Dickerson home was covered by the

homeowners policy, Lexington had to prove how much of that

damage was caused by flooding and was thus excluded from

coverage under its policy.

26

 LA. REV. STAT. ANN. §§ 22:1220 and 22:658 (2007). 

25

 Dickerson, 556 F.3d at 295. 

26

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We next reviewed the evidence adduced at trial by both Lexington and the

insured, observing that “the question of flood versus wind damage essentially

turned on witness credibility, as the quantity and quality of the evidence

adduced by each party was similar.” We then affirmed the district court’s

27

judgment.

Even though in Dickerson we were not ruling on an appeal from a grant

of summary judgment—where, “[i]f the burden at trial rests on the non-movant,

the movant must merely demonstrate an absence of evidentiary support in the

record for the non-movant’s case” —the proper allocation of the burden of proof

28

necessarily implicated the standard of review of a challenge to the sufficiency of

the evidence. This is because “[t]he judge must view the evidence presented

29

 Id. at 295. 27

Miss. River Basic Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). Celotex 28

Corp. v. Catrett, 477 U.S. 317, 32 (1986) “[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial . . . . The

moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has

failed to make a sufficient showing on an essential element of her case with respect to which

she has the burden of proof.”).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding that “we are 29

convinced that the inquiry involved in a ruling on a motion for summary judgment or for a

directed verdict necessarily implicates the substantive evidentiary standard of proof that

would apply at trial on the merits.”) (emphasis added); Allstate Ins. Co. v. Receivable Fin. Co.,

L.L.C., 501 F.3d 398, 405 (5th Cir. 2007) (“A motion for judgment as a matter of law

(previously, motion for directed verdict or J.N.O.V.) in an action tried by jury is a challenge

to the legal sufficiency of the evidence supporting the jury’s verdict.”); Hiltgen v. Sumrall, 47

F.3d 695, 703 (5th Cir. 1995) (“We must be especially careful when reviewing the sufficiency

of the evidence where the party seeking relief, the defendants in this case, had the burden of

proof on the issue in question.”).

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through the prism of the substantive evidentiary burden.” In sum—and

30

contrary to Allstate’s first contention regarding the import of Dickerson—our

articulation of the allocation of the burden of proof in Dickerson was not dictum,

although Allstate was correct that it did not alter the rule set forth in Jones.

Neither, however, does Dickerson stand for the proposition advanced by

the Bayles that the insurer alone must bear the burden of producing evidence

to segregate covered losses from excluded losses, at least not at the summary

judgment stage. Both the Bayles and Allstate appear to confuse the burden of

persuasion with the burden of production. As the Louisiana Supreme Court

made clear in Jones, and as our reasoning in Dickerson reflects, the insured

must carry the burden of persuasion to establish that any uncompensated (or

under-compensated) damage was caused by a covered peril. Simply put, this is

what is meant by the rule that the insured must prove coverage under the

policy. Then, if the defendant-insurer wishes to avoid liability by relying on a 31

Anderson, 477 U.S. at 252. 

30

Doerr v. Mobil Oil Corp., 774 So. 2d 119, 123-24 (La. 2000) (“When determining 31

whether or not a policy affords coverage for an incident, it is the burden of the insured to prove

the incident falls within the policy’s terms. On the other hand, the insurer bears the burden

of proving the applicability of an exclusionary clause within a policy.”) (citations omitted); Lee

v. Taylor, 808 So.2d 407, 410 (La. App. 1st Cir. 2000) (“The insured bears the burden of proof

to establish every fact essential to a cause of action under the policy coverage.”); Whitham v.

Louisiana Farm Bureau Cas. Insur. Co., 34 So.3d 1104, 1107 (La. App. 2d Cir. 2010) (“In an

action under an insurance contract, the insured bears the burden of proving the existence of

policy and coverage. The insurer, however, bears the burden of showing policy limits or

exclusions” and therefore “[b]ecause La. Farm Bureau is relying on an exclusionary provision

in the policy it has the burden of showing . . . that the F-150 truck was ‘furnished for regular

use’ as required to satisfy the language of the exclusionary clause) (citations omitted)); Landry

v. Louisiana Citizens’ Property Insur. Co., 964 So.2d 463, 478 (La. App. 3d Cir. 2007)

(reviewing state law in the context of a challenge to indemnity for a total loss when both wind

and flood contributed to the loss and concluding “proof of coverage, together with a[s]howing

[sic] that wind damage was suffered during the course of a storm, creates a rebuttable

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policy exclusion from coverage, it has the burden of persuasion to establish that

the uncompensated or under-compensated damage is subject to an exclusion.

Contrary to Allstate’s second contention, we have found nothing in Louisiana

law to suggest that these respective burdens of persuasion shift between the

parties. What does shift—but only during the summary judgment stage—is the

burden of production. Because at trial the defendant-insurer has the ultimate

burden of persuasion that the exclusion is applicable, a defendant-insurer that

moves for summary judgment must bear the burden of producing evidence to

make out a “prima facie” case that the cause of the uncompensated or undercompensated damage was excluded from coverage. If the defendant-insurer does

so, “the burden shift[s] to the [insured] to present evidence demonstrating there

remain[s] a material issue of fact.”

32

As Jones makes clear, this simple, burden-shifting minuet arises from the

effect of summary judgment on the burdens of production and not any shift

presumption of causality.”), aff’d in part, vacated in part on other grounds by Landry v.

Louisiana Citizens’ Property Insur. Co. 983 So.2d 66 (La. 2008); Stewart v. Louisiana Farm

Bureau Mut. Insur. Co., 420 So.2d 1217, 1219 (La. App. 3d 1982) (“the insurer has the burden

of proving facts which limit its coverage”) (citing Mass. Protective Assoc v. Ferguson, 168 La.

271, 121 So. 863 (1929)); Comeaux v. State Farm Insur. Co., 986 So.2d 153, 154 (La. App. 5th

Cir. 2008) (“although the insurer has the burden to show an exclusion applies, we find that

State Farm here is not relying on an exclusion to avoid paying the claim . . . . [because] State

Farm acknowledges that ALE was due pursuant to the homeowners policy and paid

accordingly. The issue here is whether the payment was sufficient to meet State Farm's

obligation.”). 

Whitham, 34 So. 2d. at 1011-1012. COUCH ON INSURANCE § 175:9 (3rd ed. 2006) (“It 32

is an insured’s burden to produce evidence that would afford a reasonable basis for estimating

the amount of damage or the proportionate part of damage caused by the covered peril and

that by the excluded peril.”).

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between the parties’ respective burdens of persuasion. Because Dickerson

33

addressed the sufficiency of the evidence adduced at trial, it was not concerned

with the shifting of the burdens of production that characterizes summary

judgment.

2. Burdens of Production at Summary Judgment

Here, because Allstate moved for summary judgment, and because Allstate

would have had the burden of proving at trial that flood, not wind, caused the

uncompensated or under-compensated damage claimed by the Bayles, Allstate

had the burden of producing evidence in support of its motion to establish that

there existed no issue of material fact regarding the cause of the uncompensated

or under-compensated damage for which the Bayles sought indemnification.

Unlike the insurer-defendant in Jones, however, Allstate did not contest that a

covered peril (wind) caused some of the damage to some of the Bayles’ property;

the question was which particular items of property were damaged by wind; or,

put differently, what is the extent of the damage incurred by those items that

Before undertaking its analysis, the Jones court explained that recent revisions to 33

Louisiana’s Code of Civil Procedure clarified the burden of proof in summary judgment

proceedings such that “[t]he initial burden of proof remains with the mover to show that no

genuine issue of material fact exists. If the mover has made a prima facie showing that the

motion should be granted, the burden shifts to the non-moving party to present evidence

demonstrating that a material factual issue remains. The failure of the non-moving party to

produce evidence of a material factual dispute mandates the granting of the motion.” Jones,

870 So. 2d at 1006, & n.5 (emphasis added). It is in this context that we read Jones’s later

statement that “we conclude that defendant made a prima facie showing that the motion

should be granted. At that point, the burden shifted to the plaintiff to present evidence

demonstrating there remained a material issue of fact as to the issue of *1011 whether the

shooting was accidental such that the **14 exclusion did not apply.” Id. at 1010. Compare

Celotrex Corp. v. Catrett, 4778 U.S. 317, 331 (1986) (“The burden of production imposed by

Rule 56 requires the moving party to make a prima facie showing that it is entitled to

summary judgment . . . . The manner in which this showing can be made depends upon which

party will bear the burden of persuasion on the challenged claim at trial.”). 

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was caused by wind. Complicating Allstate’s task, however, was the fact that at

no point did the Bayles identify which particular damaged items had gone

uncompensated or under-compensated under their homeowners policy’s coverage

for structural damage. They simply presented the court with a line-item cost

34

estimate to repair all the damage to their property, without even attempting to

explain which portion or portions of those costs are attributable to wind-caused

damage.

In contrast,to support its motion for summary judgment Allstate proffered

(1) the Bayles’ deposition testimony, (2) its own adjusters’ reports, and (3) the

expert testimony of O’Keeda, which together specifically itemized and quantified

the damage caused by wind as opposed to flood. The totality of this evidence

demonstrates that the Bayles’ one-story house took in eight to ten feet of water,

that the roof and windows were left essentially intact, that oil from a nearby

tank also contaminated the property, and that the amounts paid by Allstate

under the policy’s wind coverage—$3,628.87 for structural damage, $8,804.22 for

contents, and $5,127.64 for ALE—were sufficient.

On appeal, the Bayles urge us (1) to find that the disparity between the

gross amount of their estimate and the amount that they received from Allstate

under their policy’s wind coverage proves that some “uncompensated damage”

does remain “uncompensated,” and (2) to rule that Allstate cannot be granted

summary judgment unless it produces evidence that “segregates damages”

Although the Bayles also complained about the amount they received for contents 34

damage under their homeowners policy’s coverage, they have not briefed this issue on appeal

so we deem it waived. 

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caused by wind from those caused by flood. In so contending, however, the

35

Bayles fail to recognize that when Allstate adduced evidence sufficient to

establish a prima facie case that flood, not wind, caused any uncompensated or

under-compensated damage complained of by the Bayles, the burden of

production shifted to the Bayles 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. Unlike the plaintiff in Dickerson, the Bayles’

36

expert report did not venture the causes of the damage to any particular items.

The Bayles also failed to proffer any evidence to show that they were undercompensated for any damage admittedly caused by wind. Consequently,

summary judgment was proper because the Bayles did not bear their burden of

production after Allstate had produced evidence identifying those items of

damage that were excluded from wind coverage because they were caused by

flood.

We note here that the Bayles appear to conflate the notion of damage with damages;

35

the latter in fact being the dollar amount of the former, and we could find no suggestion in

Louisiana law that insureds are ever relieved of the burden of proving damages. Mobil

Exploration & Producing U.S., Inc., v. Cajun Constr. Servs., 45 F.3d 96, 101 (5th Cir. 1995)

(holding that “‘[u]nder Louisiana law, the plaintiff must prove damages with reasonable

certainty. . . .”).

We note here that if the insureds have already recovered a sufficient amount under

36

their flood policy for some damage allegedly caused by wind, the insureds may not recover

twice by claiming the damage under its homeowners policy for wind damage. Although this

rule appears to create perverse incentives when the flood insurer is the federal government

and the wind-damage insurer is the private insurance company that also administers the

federal flood policy, Louisiana law nevertheless bars insureds from recovering twice for the

same damage. Cole v. Celotex, 599 So.2d 1058, 1080 (La. 1992). Indeed, if there ever be a case

in which there appears to be any self-dealing by a two-hatted insurer under such

circumstances, it would be the federal government and not the insureds that would have the

putative reimbursement claim.

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C. Valuation & the Sufficiency of the Amount Recovered for

Structural Damages

1. Valuation — ACV or “building structure reimbursement?”

The Bayles also challenge the sufficiency of the payment they received for

structural damage, claiming that their damages should have been calculated

under the policy’s “building structure reimbursement” provision. Allstate (and

the district court) rejected the proposition that any of the Bayles’ structural

damage should be calculated under the “building structure reimbursement”

provision, maintaining that the Bayles were limited to the ACV of the property.

The Bayles’ homeowners policy explicitly identifies when the policyholder

may recover under the “building structure reimbursement” clause as opposed to

recovering under the “actual cash value” clause:

(a) Actual Cash Value: If you do not repair or replace the damaged

. . . property, payment will be on an actual cash value basis. This

means that there may be a deduction for depreciation. . . .

You may make claim for additional payment [for building structure

reimbursement], if you repair or replace the damaged, destroyed or

stolen property within 180 days of the actual cash value payment.

(b) Building Structure Reimbursement: . . . [W]e will make

additional payment to reimburse you for cost in excess of actual

cash value if you repair, rebuild or replace damaged . . . covered

property within 180 days of the actual cash value payment. . . .

If you replace the damaged building structure(s) at an address other

than shown on the Policy Declarations through construction of a

new structure or purchase of an existing structure, such replacement

will not increase the amount payable under Building Structure

Reimbursement described above . . . .

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(Emphasis added)

It is undisputed that the Bayles neither repaired their damaged property

nor replaced it on the same lot. And, although they did purchase a

condominium, it was at a different location. Moreover, for the Bayles to recover

under the “building structure reimbursement” clause, the condominium must

have been purchased within 180 days of Allstate’s last actual cash value

payment to the Bayles. None contests that the condominium was not

37

purchased within 180 days of Allstate’s last actual cash value payment to the

Bayles. “‘Louisiana law . . . places the burden on the [insured] to establish

38

every fact essential to recovery and to establish that the claim falls within the

policy coverage,’” and the Bayles failed to adduce any evidence that their

39

condominium was purchased within the requisite 180-day period. They have

thus failed to demonstrate that there is a genuine issue of material fact

concerning whether the “building structure reimbursement clause” applies. The

In the district court, the Bayles asserted that Allstate waived the ACV terms of the 37

policy when it paid $3,628.87 in “replacement cost” for wind damage. As this contention was 

rejected by the district court in its opinion granting summary judgment, however, and the

Bayles have not raised it again on appeal, we shall not address it.

Allstate also advances several alternative arguments why the condominium does not 38

qualify as replacement property. As Allstate’s primary argument is sufficient, however, we 

need not address its alternative arguments.

Williams v. Allstate Indemnity Co., 359 Fed. App’x. 471, 473 (5th Cir. 2009) 39

(unpublished) (citing Ho v. State Farm Mut. Auto Ins. Co., 862 So.2d 1278, 1281 (La .App. 3rd

Cir. 2003) and Doerr v. Mobil Oil Corp., 774 So.2d 119, 124 (La.2000) (“When determining

whether or not a policy affords coverage for an incident, it is the burden of the insured to prove

the incident falls within the policy's terms. On the other hand, the insurer bears the burden

of proving the applicability of an exclusionary clause within a policy.” (citations omitted)),

modified on other grounds, 782 So.2d 573 (La.2001).

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district court did not err in concluding that the Bayles are not entitled to any

payments for structural damage in excess of the ACV of their house.

2. The Sufficiency of the ACV Reimbursement

The parties also disagree about the correct ACV of the house and about

whether the payments that the Bayles have already received have fully

indemnified them for damage caused by wind. As noted, the Bayles did not offer

their own calculation of ACV; rather, through their expert report, they offered

only the total RCV of the house. Allstate, for its part, proffered evidence of two

ACV sums: (1) In an early report submitted to the NFIP, a copy of which was

included in Allstate’s summary judgment evidence, the ACV of the home was

listed as $74,284.80; (2) in its summary judgment briefs, Allstate advanced

another ACV sum, which was calculated by its expert, O’Keeda, to be $108,220.

The mere existence of these two competing figures, argue the Bayles, signals

that there exists a genuine issue of material fact which precludes summary

judgment. Allstate counters that, when the Bayles’ recoveries for both flood and

wind are combined with their recovery from the sale of their property to Murphy

Oil, the Bayles recovered $132,628.87 in structural damages to their property,

which exceeds both figures that Allstate produced in connection with its motion

for summary judgment.

Without ruling on the import, if any, of Allstate’s dueling figures, or on its

claim that the Bayles’ ACV should take into account all or some portion of its

recovery from Murphy Oil, we hold that this issue is immaterial in the light of

40

Louisiana has made it clear that the insureds may “recover under all available

40

coverages provided that there is no double recovery.” The payment obtained from Murphy Oil,

however, was not an indemnification pursuant to an insurance contract. Cole v. Celotex, 599

So.2d 1058, 1080 (La.1992) (quoting 15A Couch on Insurance § 56:34 (2d ed.1983)). This

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our overarching determination regarding the shifting evidentiary burdens of the

parties. As we explained earlier, Allstate put forward sufficient evidence in

support of its motion for summary judgment to establish that all wind-caused

structural damage to the Bayles’ house was fully compensated. Not only did the

Bayles fail to counter with any rebuttal evidence to establish the existence of asyet uncompensated damage caused by wind, the Bayles also failed to proffer any

evidence that the quantum of damages they had already received from Allstate

for wind-caused damage was insufficient. The Bayles have cited no authority,

and we have found none, to support the proposition that the shifting evidentiary

burden of production in these insurance suits somehow absolves the insureds

from the traditional rule “[u]nder Louisiana law, [that] the plaintiff must prove

damages with reasonable certainty . . . .” Accordingly, the district court,

41

correctly ruled that the Bayles were not entitled to additional payments for wind

damage under their homeowners policy.

D. Statutory Penalties under La. R.S. §§ 22:1220 and 22:658

double recovery prohibition only extends to “all available coverages—an insurer may not

benefit from offsets for payments received by the insured from the United States Small

Business Association (SBA) or Road Home Program.” Bradley, 606 F.3d at 229, n. 10.

Although the record does not reflect the details of the Bayles’ sale to Murphy Oil, it

presumably resulted from an attemptto settle any potential tort claims that residents affected

by the oil that leaked from the ruptured storage tanker might bring. We do not read Louisiana

law to instruct that any such third-party “windfall” (if environmental contamination may be

so characterized) should redound to Allstate’s benefit as opposed to the benefit of the insured. 

 

Mobil Exploration & Producing U.S., Inc., v. Cajun Constr. Servs., 45 F.3d 96, 101 41

(5th Cir. 1995); COUCH ON INSURANCE § 175:9 (3rd ed. 2006) (“It is an insured's burden to

produce evidence that would afford a reasonable basis for estimating the amount of damage

or the proportionate part of damage caused by the covered peril and that by the excluded

peril.").

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Breach of contract is a condition precedent to recovery for the breach of

the duty of good faith, and we agree with the district court that Allstate did not

42

breach its insurance contract with the Bayles. Therefore, the district court

properly denied the Bayles’ claim for statutory penalties.

III. CONCLUSION

As the movant for summary judgment, Allstate had the burden of proving

the applicability of any exclusion from coverage. Allstate properly supported its

motion for summary judgment with specific evidence (its adjusters’ and expert’s

reports, and the Bayles’ deposition testimony) that addressed the various items

of damage incurred by the Bayles’ property and the cause of each item’s

damage, as well as the particular amounts it paid to the Bayles for wind-damage

to those items. At that juncture, the burden of production shifted to the Bayles

to put forward evidence of specific facts sufficient to demonstrate the existence

of uncompensated items of damage that were caused by wind, or of any

deficiency in its quantum of the damages paid by Allstate to indemnify the

Bayles for wind-caused damage. They failed to do so. As all other issues on

appeal are subsidiary to these determinations, the district court’s grant of

Allstate’s motion for summary judgment must be, and hereby is,

AFFIRMED.

Clausen v. Fidelity and Deposit Co. of Maryland, 660 So.2d 83, 85-86 (La. App. 1st 42

Cir. 1995).

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