Lightning does strike twice

The unfortunate Mr. Cerullo had his home managed three times by storms. The resulting coverage litigation led to a dispute about allocation among insurers, as to which the Fifth Court  held:

But because the Insurers wrongfully refused to defend Vines-Herrin [the builder] or participate in the arbitration, they lost their opportunities to require that Cerullo and Vines-Herrin allocate an exact amount of damages to the relevant policy period or to request that the arbitrator do so. At the arbitration, Cerullo’s burden was to prove and obtain damages for all of the problems at his home, regardless of the date of occurrence, and Vines-Herrin’s burden was to prove that its negligence was not the cause of any of the problems in question. Neither was required to meet the extra burden of proving exactly how much of the damage occurred on any particular day. Neither was required to establish any sort of allocation among the absent insurers, and the arbitrator was not asked to make one. Consequently, this case presents a problem similar to that of the time on the risk cases, that is, how to apportion an established total amount of damages among the insurers whose policies were in effect during the time a portion of the loss was suffered by the insured.

Great American Lloyds Ins. Co. v. Vines-Herrin Custom Homes, LLC, No. 05-18-00337-CV (Jan. 8, 2019) (emphasis added).