Texas Judiciary Online - HTML Opinion

Affirmed and Memorandum Opinion filed February = 22,=20 2007.

In The

Fourteenth Court=20 of Appeals

____________

NO. 14-05-00825-CV

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ANN KELLY=20 AND JAMES E. KELLY, = Appellants

TRAVELERS=20 LLOYDS OF TEXAS INSURANCE COMPANY, = Appellee

On Appeal from the = 190th District Court

Harris County, = Texas

Trial Court Cause = No. 03-61055

M E M O R=20 A N D U M O P I N I O N

This is an=20 appeal from a no-evidence summary judgment in favor of an insurer = on the=20 insureds=3D = claim for=20 mold damage under their homeowners=3D = policy. We must decide if the evidence raises a fact issue = as to=20 whether the alleged personal-property loss was caused by a covered = peril. Concluding that it does not and that the trial court = did not=20 err in granting the insurer=3Ds motion=20 for summary judgment, we affirm.

I. =20 Factual and Procedural=20 Background

Appellants/plaintiffs=20 Ann Kelly and James E. Kelly owned a home in Houston that had been = under=20 about six feet of water from a 1994 flood. In May 2000, the = Kellys=20 purchased a homeowners=3D = insurance=20 policy from appellant/defendant Travelers Lloyds of Texas = Insurance=20 Company covering this residence.

In=20 November 2001, the Kellys called Travelers to report what they = believed to=20 be a covered claim based on water damage and mold in their = home. =20 After failing to receive a response, the Kellys placed another = call to=20 Travelers the following month, to ascertain the status of the = claim and to=20 request an investigator to inspect the damage. During this = phone=20 call, the Kellys informed Travelers that they had agreed to sell = their=20 home to the Federal Emergency Management Administration (FEMA), = and the=20 house would be demolished. The Kellys explained that, in the = meantime,=20 they had rented three storage units and, in November 2001, had = moved their=20 personal belongings into these units. They also stored some = of their=20 possessions in their son=3Ds=20 garage. Travelers advised the Kellys to have a private mold=20 inspector, Nova, come to their home and test for mold. =

The Kellys=20 arranged for the inspection and on December 20, 2001, Patrick=20 O=3DBrien with=20 Nova tested the Kellys home for mold and water damage. By = the time=20 he arrived, the Kellys=3D = house had=20 been completely gutted. In anticipation of = the FEMA=20 demolition, the Kellys had removed baseboards, molding, = appliances, and=20 fixtures, and had knocked several large holes in the walls. =20 In=20 O=3DBrien=3Ds opinion,=20 the house was completely unlivable. O=3DBrien=20 tested several areas of the gutted house, but he did not visit the = storage=20 facilities or inspect the Kellys=3D = personal=20 property. Relying on O=3DBrien=3Ds testing=20 results, Dr. Paul Pearce of Nova wrote a report indicating = elevated mold=20 levels in some parts of the Kellys=3D = residence. The following day, on December 21, 2001, the = Kellys=20 closed on the sale of their home to FEMA.

Travelers=20 initially denied the Kellys=3D = claim=20 under the mistaken belief that the Kellys had cancelled their=20 homeowners=3D = insurance=20 policy. However, Travelers realized its error and notified = the=20 Kellys on January 5, 2002, that Travelers had received their claim = for=20 mold and water damage and had corrected the confusion regarding = the=20 policy. Travelers assured the Kellys that it intended to = investigate=20 their claim. Shortly thereafter, on January 15, 2002, a = Travelers=20 adjuster, Tom Underwood, inspected the home, as well as the=20 Kellys=3D = personal=20 property which was then located in the four separate=20 non-climate-controlled storage facilities.^[1] = The=20 following week Travelers sent a letter to the Kellys officially = denying=20 the claim on the basis that there was Ano=20 indication of direct physical damage caused by a covered=20 peril.@ =20

The Kellys=20 filed suit against Travelers, alleging Travelers had breached the=20 insurance contract by failing to pay their claim. Travelers = filed a=20 no-evidence motion for summary judgment contending there was no = evidence=20 that the alleged damage to their personal property was caused by a = covered=20 peril under the Kellys=3D = homeowners=3D = policy. After a hearing, the trial court granted=20 Travelers=3Ds motion=20 for summary judgment. A week after granting summary = judgment, the=20 trial court signed another order excluding from the = summaryBjudgment=20 evidence the affidavit of the Kellys=3D = designated expert, Dr. Paul Pearce.

The Kellys=20 now challenge the trial court=3Ds rulings=20 and present the following issues for our review:

(1) =20 The trial court erred in granting Travelers=3Ds objections to the = Kellys=3D controverting=20 summary-judgment evidence, specifically the Pearce affidavit.^[2]

(2) =20 The Kellys presented sufficient causation evidence to allow the = trier of=20 fact to segregate covered losses from non-covered losses and = determine=20 that a covered loss caused damage to their personal = property.

(3) =20 The Kellys presented sufficient summary-judgment evidence to = create a=20 genuine issue of material fact, that their mold claim presented a = covered=20 loss under their insurance policy.^[3]

(4) =20 The Kellys presented sufficient summary-judgment evidence creating = a=20 genuine issue of material fact that the Kellys=3D = personal=20 property is not subject to the automatic removal provision under = the=20 insurance policy.

= ; = &= nbsp; &n= bsp; =20 II. Analysis=20

In=20 reviewing a no‑evidence summary judgment, we ascertain = whether the=20 nonmovant pointed out summary‑judgment evidence of probative = force to=20 raise a genuine issue of fact as to the essential elements = attacked in the=20 no‑evidence motion. Johnson v. Brewer & = Pritchard, P.C.,=20 73 S.W.3d 193, 206B08 (Tex.=20 2002). We take as true all evidence favorable to the = nonmovant, and=20 we make all reasonable inferences therefrom in the = nonmovant=3Ds=20 favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 = (Tex.=20 App.CHouston=20 [14th Dist.] 2000, pet. denied). A no‑evidence motion = for summary=20 judgment must be granted if the party opposing the motion does not = respond=20 with competent summary‑judgment evidence that raises a = genuine issue of=20 material fact. Id. at 917. When, as in this case, the = order=20 granting summary judgment does not specify the grounds upon which = the=20 trial court relied, we must affirm summary judgment if any of the=20 independent summary-judgment grounds is meritorious. FM=20 Props. Operating Co. v. City of Austin, 22 S.W.3d 868, = 872=20 (Tex. 2000).

In its=20 no-evidence motion for summary judgment, Travelers stated no = evidence=20 showed that (1) a covered loss caused the alleged damage to the=20 Kellys=3D = personal=20 property or (2) the Kellys=3D = personal=20 property was damaged by a covered peril before they moved it to = the=20 non-climate-controlled storage facilities.^[4] In = their=20 second and third issues, the Kellys argue they provided sufficient = causation evidence to allow the trier of fact to segregate covered = losses=20 from non-covered losses, as well as to create a genuine issue of = material=20 fact on the issue of whether a covered loss caused damage to the = their=20 personal property.

Under=20 their homeowners=3D = policy,=20 the Kellys=3D = claim for=20 personal property damage under Coverage B required proof of = Aphysical=20 loss@ = to their=20 personal property caused by a named peril.^[5] = The only=20 possible coverage for the Kellys=3D = personal=20 property claim was under the heading ASection=20 I‑Perils Insured Against,@ = and=20 subheading ACoverage B=20 (Personal Property).@ =20 That subsection states the following in pertinent part:

We insure against = physical=20 loss to the property described in Section I Property Coverage B = (Personal=20 Property) caused by a peril listed below, unless the loss is = specifically=20 excluded . . .

9. Accidental = Discharge, Leakage or Overflow of Water or Steam from within a = plumbing,=20 heating or air conditioning system or household = appliance.

To defeat=20 a no-evidence motion for summary judgment, the Kellys had to prove = that a=20 named peril, i.e., a plumbing, heating, air-conditioning, or = appliance=20 leak caused mold, the mold then became airborne, and thereafter=20 contaminated their personal property. See De Laurentis v. = United=20 Services Auto Ass=3Dn, = 162=20 S.W.3d 714, 722B24 (Tex.=20 App.CHouston=20 [14th Dist.] 2005, pet. denied) (defining loss and concluding that = the=20 plain meaning of the policy language, covers tangible damage to = the=20 policyholder=3Ds personal=20 property caused by a plumbing leak)^[6]; = Travelers=20 Indem. Co. v. Jarrett, 369 S.W.2d 653 (Tex. App.CWaco 1963,=20 no writ) (concluding that a provision insuring against = Aloss or=20 damage caused by lightning@ = renders=20 the insurer liable for all known effects of lightning, = Aand=20 includes all loss or damage which results as a direct and natural=20 consequence of the lightning, notwithstanding other incidental = agencies=20 may be incidental in adding to the loss or damage.@)

An insured=20 is not entitled to recover under an insurance policy unless she = proves her=20 damages are covered by the policy. Employers Cas. Co. v. = Block, 744=20 S.W.2d 940, 944 (Tex. 1988), overruled in part on other grounds = by=20 State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696 (Tex. = 1996);=20 Wallis v. United Servs. Auto. Ass'n, 2 S.W.3d 300, 303 = (Tex.=20 App.CSan=20 Antonio 1999, pet. denied). Under the doctrine of concurrent = causes,=20 when covered and non‑covered perils combine to create a = loss, the insured=20 is entitled to recover that portion of the damage caused solely by = the=20 covered peril. Allison v. Fire Ins. Exchange, 98 = S.W.3d 227,=20 258 (Tex. App.CAustin=20 2002, pet. granted, judgm=3Dt vacated=20 w.r.m.); State Farm Fire & Cas. Co. v. Rodriguez, 88 = S.W.3d=20 313, 320B21 (Tex.=20 App.CSan=20 Antonio 2002, pet. denied).

The=20 doctrine of concurrent causation is not an affirmative defense or = an=20 avoidance issue; instead, it is a rule embodying the basic = principle that=20 insureds are not entitled to recover under their insurance = policies unless=20 they prove the damage is covered by the policy. Allison, = 98=20 S.W.3d at 258. The insured must present some evidence upon = which the=20 jury can allocate the damages attributable to the covered peril.=20 Id. at 258‑59. Because the insured = can recover=20 only for covered events, the burden of segregating the damage = attributable=20 solely to the covered event is a coverage issue for which the = insured=20 carries the burden of proof. Rodriguez, 88 S.W.3d at=20 321. Failure to segregate covered and noncovered perils is = fatal to=20 recovery. Allison, 98 S.W.3d at 259. = A[A]lthough=20 a plaintiff is not required to establish the amount of his damages = with=20 mathematical precision, there must be some reasonable basis upon = which the=20 jury=3Ds finding=20 rests.@ = Rodriguez, 88 S.W.3d at 320.

Travelers=20 contends the mold on the Kellys=3D = personal=20 property resulted from a combination of factors. According = to=20 Travelers, the Kellys failed to meet their burden under the = doctrine of=20 concurrent causes. To establish causation, the Kellys were = required=20 to prove (1) a named peril, for example, a plumbing leak, caused = mold in=20 their home, (2) that mold became airborne before the house was = gutted and=20 their personal property moved to storage, and (3) this same mold = from the=20 covered peril contaminated the personal property before it was = moved to=20 storage. In their response to Travelers=3Ds=20 no-evidence motion for summary judgment, the Kellys proffered the=20 following evidence:

(1) = The=20 affidavit, report, and deposition testimony of Dr. Paul = PearceCtheir designated = causation=20 expert.

(2) =20 The deposition testimony of Patrick O=3DBrienCthe technician for = Dr.=20 Pearce=3Ds mold testing = company,=20 Nova.

(3) =20 Portions of Travelers=3Ds adjuster Tom=20 Underwood=3Ds report and = deposition=20 testimony.

(4) =20 Portions of Travelers=3Ds designated expert = John=20 Solook=3Ds report and = deposition=20 testimony.

We=20 address, in turn, each piece of evidence the Kellys produced to = defeat=20 Travelers=3Ds=20 no-evidence motion for summary judgment.

1. =20 Dr. Pearce=3Ds=20 Testimony and Affidavit =

The Kellys=20 rely heavily on their causation expert, Dr. Pearce. They = allege that=20 through his affidavit testimony Dr. Pearce produced the following=20 causation evidence, which they claim satisfies the doctrine of = concurrent=20 causes: (1) plumbing leaks existed in the Kellys=3D = home, (2)=20 these plumbing leaks caused mold, (3) Dr. Pearce can differentiate = between=20 mold from covered and non-covered claims, and (4) most, if not all = of the=20 mold found in the Kellys=3D = home was=20 due to plumbing leaks.

Even if we=20 could properly consider Dr. Pearce=3Ds=20 affidavit, it would not raise a genuine issue of material of fact = on the=20 issue of causation. Dr. Pearce never inspected the personal = property=20 that was in storage at the time the inspector (Patrick = O=3DBrien) did=20 the testing at the Kellys=3D = home. After reviewing only photographs of the personal = property and=20 O=3DBrien=3Ds report,=20 Dr. Pearce concluded (as stated in his affidavit) that the visible = water=20 damage found in the Kellys=3D = home is=20 consistent with water leaks from the roof, water leaks from the = windows,=20 and/or plumbing leaks. He confirmed this finding in his = deposition,=20 testifying that much of the mold resulted from a roof, window, or = plumbing=20 leak.

Dr.=20 Pearce=3Ds report=20 indicated elevated mold levels in some parts of the = Kellys=3D = residence. However, Dr. Pearce did not elaborate on how this = mold=20 might have caused the damage to personal property that had been = stored in=20 non-climate-controlled space for six months before any mold = testing. =20 Dr. Pearce admitted that Nova=3Ds testing=20 did not reflect what the conditions would have been in the=20 Kellys=3D = home=20 before they completely gutted it. When the home was=20 testedCprior to=20 the FEMA closingCthe Kellys=20 had moved all of their personal property to three = non-climate-controlled=20 storage facilities, and to their son=3Ds=20 garage. Immediately thereafter, the Kellys knocked holes in = the=20 walls, and completely stripped the house of any useful = materials. =20 Dr. Pearce could not affirmatively state whether excess air-borne = mold=20 grew in the Kellys=3D = residence=20 before the Kellys removed the baseboards, wall boards, and other = parts of=20 the house.

Dr. Pearce=20 thought it a reasonable probability that the mold contaminating = the=20 Kellys=3D = personal=20 property resulted from Aspecific=20 plumbing and/or roof leaks prior to its removal from the home and=20 subsequent storage.@ =20 Roof leaks and window leaks are not covered under the = Kellys=3D = policy. But, Dr. Pearce did not allocate the = Kellys=3D = loss, if=20 any, between any alleged plumbing leaks (covered peril), and the = roof and=20 window leaks (non-covered perils). He only concluded that = one might=20 be able to distinguish between mold caused by the 1994 flood = waters or=20 another type of water intrusion. This conclusion still left = three=20 possible sources of moldCplumbing=20 leaks, roof leaks, and window leaks.

Dr. Pearce=20 has not identified any plumbing leak in the house and thus no = specific=20 plumbing leak in the master bedroom or master bathroom that caused = contamination of the stored personal property. Dr. Pearce = also=20 admitted in his deposition that, because the Kellys=3D = personal=20 property had been placed in non-climate-controlled storage, it = could have=20 developed mold in as quickly as a week after being placed = there. =20

When an=20 expert does not rule out causes of loss other than the one he = assigns,=20 that Arenders=20 his opinion a little more than speculation and therefore,=20 unreliable.@ =20 Emmett Prop., Inc. v. Halliburton Energy Serv., Inc., = 167=20 S.W.3d 365, 373 (Tex. App.CHouston=20 [14th Dist.] 2005, no pet.). Because the Kellys=3D = expert=20 failed to indicate the extent to which the covered peril damaged = their=20 home, we cannot conclude that a certain percentage of the damage = was=20 caused by the plumbing leaksCthe=20 covered perils. Allison, 98 S.W.3d at 304. This = failure=20 to allocate and identify the portion covered is Afatal to=20 their claim.@ =20 Id. We conclude that Dr. Pearce=3Ds=20 affidavit and deposition testimony does not raise a genuine issue = of=20 material fact on the issue of causation.

2. =20 Patrick O=3DBrien=3Ds=20 Testimony

When=20 Patrick O=3DBrien=20 tested the Kellys=3D = home for=20 mold and water damage, the house had been totally gutted, and, in = his=20 opinion, was completely unlivable. O=3DBrien did=20 not visit any of the storage facilities or inspect any of the = personal=20 property. O=3DBrien,=20 who, unlike Dr. Pearce, actually inspected the Kellys=3D = residence, could not determine whether the mold damage had = developed=20 within the weeks prior to his visit (in mid-December 2001) = or some=20 earlier time. He could not tell whether the water intrusion = in the=20 master bathroom resulted from a plumbing leak or was caused by a = previous=20 flood. Nor could he tell whether the water damage was caused = by a=20 leak in the windows or a leak in the roof above the window. = We=20 conclude O=3DBrien=3Ds=20 testimony does not raise a material issue of fact on causation.=20

3. =20 Tom Underwood=3Ds=20 Testimony

On January=20 15, 2002, Tom Underwood of Travelers, inspected the = Kellys=3D = residence=20 as well as their stored personal property. Of those who = offered=20 testimony or opinions on causation, he is the only individual who = actually=20 inspected the personal property while it was in storage. In = his=20 report of the residence, Underwood noted that the upstairs bath = and master=20 bath had some visible mold growth due to plumbing leaks. He = produced=20 a field inspection report and thirty-two photographs of the = residence and=20 personal property. We conclude that, although he noted = visible mold=20 growth in the home due to plumbing leaks, Underwood did not link = the mold=20 growth on the personal property to the mold in the home. = Indeed,=20 when he inspected the personal property in January of 2002, = Underwood=20 stated that he found no visible mold growth on the property. = His=20 detection of mold in the house does not necessarily mean that the=20 Kellys=3D = personal=20 property was contaminated by mold from plumbing leaks before being = put in=20 non-climate-controlled storage for nearly six months. = Therefore,=20 Underwood=3Ds=20 testimony also is no evidence of causation.

4. =20 John Solook=3Ds=20 Testimony

John=20 Solook, the Certified Industrial Hygienist (CIH) hired by = Travelers=20 testified that he understood the thirty-two photographs depicted = the house=20 as it looked when Tom Underwood inspected it on January 15, = 2002. At=20 first, Solook assumed, as Underwood had stated, that there was a = plumbing=20 leak in the upstairs bathroom and master bathroom. However, = during=20 his deposition, after he had viewed color photographs of the = bathrooms, he=20 recanted his initial position and testified the water damage along = the=20 sides of the master bathroom tub was not due to a leak, but to a = failure=20 of grout or caulking, or even of the plate that goes behind the = faucet in=20 a sink or shower to prevent water from migrating down behind the=20 wall. He also testified that the photographs indicated = long-term=20 overflow or dripping of water from the sink, as opposed to a = plumbing=20 leak. A lack of caulking along the door to the master = bathroom=20 shower also would explain some of the water damage. Dr. = Pearce=20 agreed that the lack of caulking alongside the shower doors could = have led=20 to water damage to the baseboards and did not necessarily indicate = a=20 plumbing leak.

Noting=20 that it is difficult to tell whether the personal property was=20 contaminated prior to being placed in storage, Solook raised the = following=20 points in his report:

! =20 AThe majority of = cabinetry,=20 appliances, bathroom, fixtures, A/C registers, HVAC unit, = insulation,=20 furniture and other items were removed and placed in what appeared = [to be]=20 non-climate controlled (environment) storage with probable = inadequate=20 ventilation.@

! =20 AA non-climate = controlled=20 storage facility will have an environment favorable for supporting = microbial growth and amplification.@

! =20 AThe method of = removal is not=20 known but if standard industry practices, such as wiping down, = HEPA=20 vacuuming were not used especially those items from the bathrooms = and=20 upstairs room, there is potential to contaminate the storage = locations=20 with mold spores.@

! =20 AIn addition, if the = carpeting/padding from areas other than the master = bedroom/bath/upstairs=20 bath and adjacent areas were not adequately cleaned using standard = industry practices this would also be a source of mold spores = while in=20 storage . . .@

! =20 ARemoval of known = contaminated=20 items without control methods, such as air filtration units = (negative air=20 movers) and isolation would disturb the mold contamination and = would be=20 distributed throughout the immediate area and potentially to other = areas=20 within the residence.@

! =20 AStorage of cleaned = and/or=20 non-contaminated contents in non-climate controlled locations will = allow=20 conditions to develop within a short period of time, possibl[y] 30 = days or=20 less, favorable for mold growth especially in this geographical=20 area.@

(emphasis=20 added). Even if we considered only Solook=3Ds recanted=20 position, Solook=3Ds=20 testimony still fails to establish any causal link between the = property in=20 storage and any leak in the master bathroom and upstairs = bathroom. =20 Solook=3Ds=20 testimony is no evidence of causation.=20 =

III. =20 Conclusion

The Kellys=20 produced no evidence of causation to link any alleged mold caused = by=20 plumbing leaks to the mold on their personal property held in=20 storage. Even if mold was caused by a plumbing leak, the = Kellys had=20 to show that the damage to the unexamined, stored personal = property was=20 caused by the mold that resulted from a plumbing leak. The = Kellys=20 have not identified any specific plumbing leak that existed before = the=20 house was completely gutted and the plumbing fixtures = removed. =20 Moreover, the Kellys have not identified any mold caused by a = specific=20 plumbing leak existing in their home before this key event. =

The Kellys=20 admitted they suffered water damage in their home from roof leaks = and=20 window leaks, which events they also claim resulted in mold. = The=20 Kellys, however, did not offer the requisite proof to establish = that the=20 contamination of their personal property (if caused by any water = damage in=20 the home) was not related to the mold caused by these non-covered = water=20 events. The Kellys did not offer any evidence from their = expert=20 showing that their personal property was tested to determine if = any mold=20 contamination had occurred or the type or source of mold, if = any. =20 The storage units were not tested to see what types of mold, if = any, were=20 present in the units before the Kellys placed their belongings in=20 storage. Mr. Kelly testified that when they went to remove = the=20 contents from the storage facilities (after six to seven months in = a=20 non-climate-controlled environment), it was Aeaten up=20 with mold.@ =20 However, there is no evidence that mold due to a plumbing leak = caused=20 contamination to the personal property. The items placed in = storage=20 were apparently fine when initially stored and showed signs of = mold only=20 after being in non-climate-controlled units for several = months. =20 Because the Kellys had burned or otherwise disposed of the = contents of the=20 storage facilities, it was no longer possible to test these=20 items.

Although=20 the summary judgment evidence showed the Kellys=3D = home may=20 have had mold contamination, it did not show that their personal = property=20 was contaminated by mold due to a covered peril, i.e., a plumbing=20 leak. Because an insured can recover only for covered = events, the=20 burden of segregating the damage attributable solely to the = covered event=20 is a coverage issue the insured must prove. Telepak v. = United=20 Services Auto. Assoc., 887 S.W.2d 506, 507B08 (Tex.=20 App.CSan=20 Antonio 1994, writ denied) (determining that insured carries = burden to=20 establish exception to exclusion because exception to exclusion = creates=20 coverage). Moreover, it follows that an insured=3Ds failure=20 to carry the burden on segregation is material and fatal. = Wallis,=20 2 S.W.3d at 302.

The=20 Kellys=3D = failure=20 to segregate mold damage resulting from covered and noncovered = perils is=20 fatal to their recovery. See Allison, 98 S.W.3d at = 259;=20 see also Texarkana Memorial Hosp. v. Murdock, 946 S.W.2d = 836, 840=20 (Tex. 1997) (relying upon principle of concurrent causation = doctrine in=20 determining that plaintiff's award for medical expenses could not = stand in=20 light of failure to properly segregate expenses); Wallis, 2 = S.W.3d=20 at 302‑03 (affirming judgment notwithstanding the verdict on = the basis=20 that the insured had no evidence that established the amount of = damage=20 from the plumbing leak). Accordingly, we overrule the=20 Kellys=3D = second=20 and third issues.

We affirm=20 the trial court=3Ds summary=20 judgment in favor of Travelers.^[7]

= ; = &= nbsp; &n= bsp; &nb= sp; =20

/s/ =20 Kem Thompson Frost

Justice

Judgment=20 rendered and Memorandum Opinion filed February 22, = 2007.

Panel=20 consists of Justices Fowler, Edelman, and Frost.

^[1] Tom Underwood was the only = inspector=20 to actually inspect the personal property the Kellys had moved and = placed=20 in the storage facilities.

^[2] In our analysis, we fully = consider the=20 Pearce affidavit. Therefore, we need not address the first = issue as=20 to whether the trial court erred in granting Travelers=3Ds objection to the Pearce=20 affidavit.

^[3] Because of their similarity, = issues two and=20 three are addressed together in this opinion.

^[4] In their post-submission letter = brief of=20 September 7, 2006, Travelers relies on the recent Texas Supreme = Court case=20 of Fiess v. State Farm Lloyds, 202 S.W.3d 744, = 747B50 (Tex. 2006), and asserts that this = case negates=20 mold coverage and, therefore, summary-judgment on the = Kellys=3D mold claim was proper. Although = we=20 acknowledge this opinion, the facts in this case do not require us = to=20 determine whether the Fiess opinion bars the = Kellys=3D mold claim. Fiess = notwithstanding,=20 the Kellys failed to produce sufficient causation evidence to = defeat a=20 no-evidence motion for summary judgment.

^[5] The Kellys distinguish between = Aphysical loss@ as opposed to a Adirect physical loss,@ contending that Adirect physical loss@ is the standard Travelers used when it = initially=20 denied the Kellys=3D claim. The Kellys state that this = standard=20 is the incorrect standard. Regardless of the standard used = when=20 Travelers denied the Kellys=3D claim, the Kellys=3D claim requires proof of Aphysical loss@ to their personal property by a covered = peril. In this opinion, we do not address whether Travelers = denied=20 the claim under the incorrect legal standard, but discuss only = whether the=20 Kellys produced sufficient causation evidence to create a genuine = issue of=20 material fact on whether a covered loss caused damage to their = personal=20 property.

^[6] In De Laurentis, the = insured brought=20 an action against the homeowner=3Ds insurer, alleging breach of a = renter=3Ds insurance policy and various = extra-contractual=20 claims including bad faith handling of claim for mold damage to = personal=20 property allegedly caused by a leaking air conditioner. 162 S.W.3d = at=20 722. The homeowner=3Ds insurer moved for and obtained summary = judgment=20 on the ground that mold was not a named peril. Id. = Unlike=20 this case, the homeowner=3Ds insurer did not attack the = plaintiff=3Ds claim on a causation basis. Id. = at 723,=20 n.7. This court stated that mold can constitute property = damage and,=20 therefore, remanded the case to the trial court because there was = an issue=20 as to whether a named peril had caused mold, which, in turn, = caused damage=20 to the plaintiff=3Ds personal property. Id. at = 724B25.

^[7] Because we affirm = the summary=20 judgment based on the causation ground, we need not address issue = four=20 regarding Travelers=3Ds argument that the = Kellys=3D claim lapsed = thirty days=20 from the date they began removing their personal property = from the=20 house under the Aautomatic = removal@ provision in the = policy.=20