The Fifth Circuit today stuck with decisions against homeowner insurance coverage for storm surge damage from Hurricane Katrina.  That left issues regarding the burden of proof on "open peril" and "named peril" coverage issues.  But the parties entered into a "High-Low Agreement" during the appeal, guaranteeing the plaintiffs a minimum payment if they lost and a bigger one if they won.  The court deemed the burden-assignment questions "not relevant to the case and controversy at issue in this court" and therefore declined to reach them.  Tuepker v. State Farm Fire & Cas. Co., No. 06-61075 (5th Cir. Nov. 6, 2007) (applying Mississippi law).

Barry Barnett

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