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by Austin Taylor

Recently, the United States Court of Appeals for the Fifth Circuit confirmed that an insured cannot establish coverage by simply presenting evidence that her property was damaged at some point while an insurer was underwriting a risk. Rather, the policyholder must demonstrate that damage occurred on a date of loss within the applicable policy period to meet the burden of establishing coverage under Texas law. Thompson v. State Farm Lloyds, No. 24-20519, 2026 WL 1419376 (5th Cir. May 20, 2026).

Factual Background

Dora Thompson owned a home in Cypress, Texas, insured by State Farm. State Farm insured the property since April 2007. In February 2022, after experiencing roof leaks, Thompson hired a contractor to inspect her roof. The contractor concluded that the home needed a full roof replacement from damage allegedly sustained during a hailstorm on September 28, 2021. Thompson’s contractor estimated the cost for roof replacement at $44,419.05. Based on this assessment, Thompson filed a claim with State Farm.

State Farm's third-party inspector found minor hail damage to a window screen and gutter but no hail damage to the roof itself, estimating covered damage at only $541.92 — well below Thompson's $14,186 deductible. Thompson then invoked appraisal, and the appraisal panel ultimately set the replacement cost value of the damage at $57,983.61.

State Farm declined to pay the appraisal award, maintaining its position that there was no covered damage to the roof and that any covered losses encompassed by the award did not exceed the policy’s deductible. Thompson then filed suit against State Farm in Texas state court. The case was removed to the U.S. District Court for the Southern District of Texas, where the district court granted summary judgment in State Farm’s favor on the basis the loss did not occur within the policy period.

The Court's Analysis

On appeal, Thompson contended that the district court erred in granting summary judgment, arguing that the evidence was sufficient to establish a prima facie case of coverage. Specifically, Thompson argued that she had met this burden by establishing that State Farm had continuously insured her home under a single policy number from the time that it was built. In essence, “[t]he policy was . . . in effect whenever the damage to the roof occurred.”

The Fifth Circuit squarely rejected this argument, focusing on the threshold requirement under Texas law that an insured bears the burden of making a prima facie case of coverage—including presenting evidence that “a covered injury or loss was incurred at a time covered by the policy and incurred by a person whose injuries are covered by the policy.” Id. at *2 (quoting Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 400 (Tex. 2016)). The court noted that “[i]t is a time-honored principle that the insurer's obligation to pay is contingent on a covered loss occurring during the policy period.” Id.

The Fifth Circuit also applied the longstanding Texas rule that a renewal of a policy constitutes a “separate and distinct contract” for the period of the renewal, unless the parties clearly express an intent to continue the original contract. Id. at *3 (citing Great Am. Indem. Co. v. State, 229 S.W.2d 850, 853 (Tex. App.—Austin 1950, writ ref'd)). The court observed that the policy's effective dates of coverage were April 12, 2021, to April 12, 2022, and there was no evidence the parties intended otherwise.

The court then examined whether the record contained any evidence tying the damage to a specific policy period. The court summarized the opinions of Thompson's expert, Micah Harrison, as follows: 

Harrison concluded after a January 2024 inspection that hail damage to Thompson's roof “appear[ed] to be only a few years old but could be as recent as a few months old” based on his observation that “the impacted areas d[id] not yet show exposed fiberglass.” According to Harrison, the hail impact areas were “not uniform in size” and it was “possible that the impacts originate[d] from a single storm that had a variation of sizes or could be the result of more than one event.” At his deposition, Harrison added that the damage could have occurred “slightly before, maybe slightly after” the September 28, 2021, storm and agreed that none of the damage appeared to be recent storm damage.

Id. at *3. The Fifth Circuit concluded that this amounted to mere “supposition as to the time of Thompson's loss” and was insufficient to create a genuine dispute of material fact. Id. at *3–4.

Conclusion

This decision underscores that to establish coverage, an insured must present competent evidence that the loss occurred during the relevant policy period. Vague or speculative expert opinions — such as testimony that damage happened “possibly” from one storm or from several across a multi-year span — are not sufficient to meet this burden. Moreover, an insured cannot meet this burden by simply establishing that an insurer had continuously insured the property and a policy was in effect when the alleged damage occurred. 

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The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.