Repair-Cost Estimates Alone Are Insufficient to Defeat Summary Judgment under Texas’s Concurrent-Causation Doctrine

Introduction

In Mitchell v. Praetorian Insurance, the United States Court of Appeals for the Fifth Circuit affirmed summary judgment for the insurer in a Texas homeowner’s insurance dispute and upheld the denial of a post-judgment motion for reconsideration. The decision centers on the Texas concurrent-causation doctrine and the insured’s evidentiary burden to segregate covered from excluded losses. The court also addressed a procedural wrinkle, electing to review the denial of a Rule 59 motion despite an “imperfect” notice of appeal, where the intent to appeal was fairly inferable and the appellee was not prejudiced.

The case involves plaintiff-appellant Ebony Mitchell, who sought coverage for roof and interior damage she attributed to wind. Defendant-appellee Praetorian Insurance contended that some or all of the damage was caused by excluded perils, including improper roof tarping and bathtub spillover. After initial claim activity and partial payments, the parties’ dispute escalated into litigation. The district court left only a breach of contract claim and a narrow statutory bad faith claim under Texas Insurance Code § 541.060(a)(3); it later granted summary judgment to Praetorian on the remaining claims. Mitchell appealed both the summary judgment and the denial of her Rule 59 motion.

The Fifth Circuit’s unpublished decision reinforces a critical lesson in Texas first-party insurance litigation: a repair-cost estimate—even when authenticated—does not substitute for causation evidence and will not defeat summary judgment under the concurrent-causation doctrine without proof that allows a factfinder to segregate covered and excluded losses.

Summary of the Opinion

The court affirmed summary judgment for Praetorian on Mitchell’s breach of contract claim because she failed to produce causation evidence capable of segregating losses between covered (wind) and excluded (tarping, bathtub spillover) causes, as Texas law requires.
The “Quantum Estimate” offered by Mitchell was deemed insufficient: the district court found it incompetent for lack of author identification and, even if considered, immaterial because it did not address causation or segregation. The Fifth Circuit agreed that even if competent, the estimate could not create a genuine fact dispute on causation.
Mitchell’s statutory bad faith claim under § 541.060(a)(3) was forfeited on appeal because she did not challenge the district court’s ruling that the insurer provided a reasonable explanation for claim decisions.
Despite an imperfect notice of appeal that referenced only the summary judgment order (not the Rule 59 denial), the Fifth Circuit reviewed both orders, relying on precedent allowing review where intent can be inferred and no prejudice is shown.
The court upheld the denial of the Rule 59 motion, concluding that any oversight regarding the Quantum Estimate’s authentication was harmless because the estimate still did not supply causation or segregation evidence.

Analysis

Precedents Cited

The panel’s reasoning rests on established Texas and Fifth Circuit authorities:

Dillon Gage Inc. of Dallas v. Certain Underwriters at Lloyds Subscribing to Policy No. EE1701590, 636 S.W.3d 640 (Tex. 2021): The Supreme Court of Texas explains that when covered and excluded events combine to cause a loss, and the causes are inseparable, the policy’s exclusion applies and the insurer owes no coverage. This is the core of Texas’s concurrent-causation doctrine.
Advanced Indicator & Manufacturing, Inc. v. Acadia Insurance Co., 50 F.4th 469 (5th Cir. 2022) (per curiam): Applying Texas law, the Fifth Circuit elaborated that the insured bears the burden to segregate damages caused solely by covered perils. Failure to segregate covered from non-covered damage “is fatal to recovery.” The insured can carry this burden either by proving the loss came entirely from a covered cause or by producing evidence enabling a jury to reasonably segregate the damage.
Catalyst Strategic Advisors, L.L.C. v. Three Diamond Capital, L.L.C., 93 F.4th 870 (5th Cir. 2024), and Templet v. HydroChem Inc., 367 F.3d 473 (5th Cir. 2004): These cases describe how the standard of review for a Rule 59 motion can shift to de novo if the district court considers new materials submitted with the motion and nonetheless grants summary judgment. The panel acknowledged this framework while affirming the denial of reconsideration.
Friou v. Phillips Petroleum Co., 948 F.2d 972 (5th Cir. 1991): The court relied on Friou to review the denial of the Rule 59 motion despite an “imperfect” notice of appeal. If intent to appeal is fairly inferred and the appellee is not prejudiced, the appeal may proceed.
Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752 (5th Cir. 2011); Fed. R. Civ. P. 56(a): Standard summary-judgment principles: de novo review and assessment of whether there is a genuine dispute of material fact.
Antero Resources Corp. v. C&R Downhole Drilling Inc., 85 F.4th 741 (5th Cir. 2023): Confirms that, in diversity cases, Texas substantive law governs the issues presented.
Rollins v. Home Depot USA, 8 F.4th 393 (5th Cir. 2021): Establishes forfeiture on appeal when an appellant does not challenge a district court ruling (here, the § 541.060(a)(3) bad faith claim).
Fed. R. App. P. 4(a)(4)(B)(ii): Addresses the requirement to file an amended notice of appeal after the disposition of certain post-judgment motions. The court acknowledged noncompliance but proceeded under Friou.

Legal Reasoning

The Fifth Circuit’s analysis proceeds in three steps: jurisdiction, summary judgment, and Rule 59 reconsideration.

First, on appellate jurisdiction, the court noted that Mitchell’s notice of appeal referenced only the summary judgment order and not the denial of her Rule 59 motion, and she did not file an amended notice as required by Federal Rule of Appellate Procedure 4(a)(4)(B)(ii). Nevertheless, relying on Friou, the panel deemed the notice an “imperfect” one that did not bar review because Mitchell’s intent to appeal the Rule 59 denial could be fairly inferred and Praetorian suffered no prejudice. The court therefore exercised jurisdiction under 28 U.S.C. § 1291, with diversity jurisdiction grounded in 28 U.S.C. § 1332(a).

Second, on the merits of summary judgment, the dispositive issue was causation and the insured’s duty to segregate. Texas’s concurrent-causation doctrine applies where covered and excluded perils combine to produce a loss. Under Dillon Gage and Advanced Indicator, an insured must either show that the loss was entirely caused by a covered peril or provide evidence by which a jury could reasonably segregate covered from excluded damage. Mitchell relied heavily on a “Quantum Estimate” to establish her loss. The district court found this estimate not competent (because it lacked identification of its author), and in any event, immaterial because it addressed repair costs but not causation. On appeal, the Fifth Circuit agreed with the latter point: a cost estimate that does not opine on cause or enable segregation does not create a genuine fact dispute under Texas law, especially where the insurer presents evidence that the losses were caused, in part or in full, by excluded perils (here, improper tarping and bathtub spillover). Because Mitchell pointed to no summary-judgment evidence that would allow a factfinder to conclude that wind alone caused the damages, or to segregate covered from excluded causes, summary judgment was properly granted.

Third, on the Rule 59 motion, Mitchell argued post-judgment that she had inadvertently omitted an affidavit authenticating the Quantum Estimate. The panel observed that the affidavit (the “Gadrow Affidavit”) had, in fact, been submitted earlier, though the parties and the district court overlooked it. The court nonetheless affirmed the denial of reconsideration, explaining that the error was harmless because, even if the estimate was considered as competent evidence, it still lacked a causation or segregation opinion and therefore could not alter the summary-judgment outcome. The panel referenced Catalyst and Templet to note that the standard of review can be de novo when newly attached materials are considered, but here, the district court’s “even if considered” rationale made the oversight immaterial; the denial of Rule 59 relief stood.

Finally, the court noted that Mitchell did not challenge the district court’s disposition of her Texas Insurance Code § 541.060(a)(3) claim, forfeiting that issue on appeal under Rollins.

Impact

Although unpublished, this decision offers several practical and doctrinal takeaways for Texas insurance litigation:

Evidence must speak to causation, not just cost. Repair-cost estimates—even if properly authenticated—are not causation evidence. They will not defeat summary judgment under Texas’s concurrent-causation doctrine unless they incorporate or are paired with competent proof identifying cause and enabling segregation of covered and excluded losses.
The insured’s burden to segregate is stringent. The Fifth Circuit underscores that the failure to present evidence allowing a jury to reasonably segregate damages is “fatal to recovery,” echoing Advanced Indicator. Insureds must plan to marshal expert analyses or other admissible evidence directly linking disputed damages to covered perils and parsing out excluded causes.
Concurrent-causation defenses remain potent at summary judgment. Where the insurer produces evidence of excluded causes, the insured must respond with causation-specific, segregable proof. Bare disputes over “scope” or “amount” do not suffice if causation is unresolved or inseparable.
Appraisal and ongoing claim handling do not relieve the segregation burden. Invoking appraisal or continuing claim dialogue will not, by themselves, forestall summary judgment if the insured cannot meet the causation/segregation burden in litigation.
Procedural safety net for “imperfect” notices of appeal is limited. The panel’s reliance on Friou shows some flexibility where intent is clear and there is no prejudice, but practitioners should not depend on this. The safer course is to file an amended notice of appeal when Rule 59 rulings issue, as required by FRAP 4(a)(4)(B)(ii).
Rule 59 reconsideration cannot fix a lack of substantive proof. Even where authentication issues are cured post-judgment, reconsideration will be denied if the additional material fails to create a material fact dispute on causation or segregation.

In the broader landscape, the decision harmonizes with recent Fifth Circuit and Texas Supreme Court authority on concurrent causation, reinforcing a predictable litigation pathway: insurers can prevail at summary judgment absent insureds’ competent segregation evidence, and courts will not send such disputes to the jury on cost estimates alone.

Complex Concepts Simplified

Concurrent-causation doctrine (Texas): When a loss results from both covered and excluded causes, and those causes cannot be separated, coverage is barred. If they can be separated, the insured may recover only for the portion caused solely by the covered peril.
Segregation of damages: The insured must present evidence—often expert testimony—either that a covered peril alone caused the loss or that allows a jury to apportion damages between covered and excluded causes. Without such evidence, recovery fails.
Repair-cost estimates vs. causation evidence: An estimate lists what it would cost to repair; it typically does not identify what caused the damage. Courts require causation evidence (e.g., engineering reports, expert opinions) to connect damage to covered perils and to exclude or apportion out non-covered causes.
Business records affidavit: A mechanism to authenticate a document as a record kept in the ordinary course of business. Authentication addresses admissibility, not substance. An authenticated estimate without causation analysis still fails to show that damage was caused by covered perils.
Summary judgment: Granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. The nonmovant must produce admissible evidence sufficient for a reasonable jury to find in their favor on essential elements—here, causation and segregation.
Rule 59(e) motion to alter or amend judgment: A post-judgment vehicle to correct manifest errors of law or fact or to consider newly discovered evidence. It is not a chance to present evidence that could have been offered earlier. Even newly considered materials must be outcome-determinative to warrant relief.
Harmless error: An error that does not affect the outcome is disregarded on appeal. Here, any oversight in failing to recognize an affidavit was harmless because the proffered material would not change the result.
Imperfect notice of appeal: Appellate courts may reach issues not perfectly identified in the notice when intent is plain and the appellee is not misled or prejudiced. This is discretionary and fact-specific; best practice remains strict compliance with FRAP 4.
Forfeiture on appeal: Issues not briefed are forfeited; appellate courts will not review unchallenged rulings (e.g., the § 541.060(a)(3) claim here).

Conclusion

Mitchell v. Praetorian Insurance underscores a decisive evidentiary principle in Texas insurance cases: cost estimates do not equal causation. To survive summary judgment under the concurrent-causation doctrine, insureds must present competent proof that either a covered peril exclusively caused the loss or evidence enabling a jury to reasonably segregate covered from excluded damage. Authentication of documents is necessary but insufficient; the substance must address causation.

Procedurally, the case also illustrates the Fifth Circuit’s willingness, in limited circumstances, to review a Rule 59 denial despite an imperfect notice of appeal where intent is inferable and the appellee is not prejudiced. Nonetheless, practitioners should comply strictly with appellate rules to avoid jurisdictional pitfalls.

The opinion, though unpublished, coheres with Texas Supreme Court and Fifth Circuit precedent and will likely be cited for the straightforward proposition that, without causation and segregation evidence, insureds cannot reach a jury merely by submitting repair-cost figures. In short: no causation, no coverage—not at summary judgment.