Who has the burden of proof in a typical all-risk insurance policy which is now often referred to as an “open perils” policy? What does a policyholder typically have to prove to make a claim for property damage? These are fairly basic questions with answers that can become confusing when the burdens switch.
Continue Reading Who Has the Burden to Prove the Cause of Property Damage? Those Burdens of Proof Can Switch!

The Certified Question: On July 2, 2020, a Ninth Circuit court of Appeals panel certified the following three-part question to the Nevada Supreme Court:

  1. Whether, under Nevada law, the burden of proving the applicability of an exception to an exclusion of coverage in an insurance policy falls on the insurer or the insured?
  2. Whichever party bears such a burden, may it rely on evidence extrinsic to the complaint to carry its burden, and if so, [3] is it limited to extrinsic evidence available at the time the insured tendered the defense of the lawsuit to the insurer?

The case out of which this certified question arises is Zurich American Insurance Co. v. Ironshore Specialty Insurance Company.1
Continue Reading Who Has the Burden to Prove an Exception to an Exclusion of Coverage in an Insurance Policy?

In December of 2016, I wrote about Sebo v. American Home Assurance Company,1 where the Florida Supreme Court reversed the appellate court’s adoption of the “Proximate Efficient Cause” doctrine and found that instead, the lower court should have applied the “Concurrent Causation Doctrine,” as laid out in Wallach v. Rosenberg,2 in a situation where both the excluded cause of faulty construction, combined with the covered causes of rain and wind resulted in a total loss to Sebo’s property.
Continue Reading Court Rejects Jury Instruction Inconsistent with Concurrent Causation Doctrine; Remands for New Trial

Florida’s Second District Court of Appeal recently reversed final judgment against a homeowner and remanded for a retrial after a jury was instructed that the insured had to prove the damages to his home were caused by a sinkhole. The case, Mejia v. Citizens Property Insurance Corporation,1 stemmed from an insurance claim brought by a homeowner under an all-risks policy issued by Citizens for a sinkhole loss. The homeowner filed suit for breach of contract after Citizens concluded the damages to the insured’s property was not caused by sinkhole activity and denied coverage.


Continue Reading Court Finds Burden of Proof For Sinkhole Loss Was Improperly Placed On Homeowner

We have often discussed the importance of the type of insurance policy involved and the difference it makes from a coverage perspective. For example, the burden of proof is different between a named-peril policy and an all-risk policy. Knowing the difference is important, and knowing what your rights are under the policy you have purchased from your insurance carrier is imperative. So, if you have an all-risk policy, and you have an accidental loss that occurs during the policy period, do you have the burden as the policyholder to prove the exact cause of the loss?

Continue Reading With an All-Risk Policy, Does the Policyholder Have to Specify What the Covered Peril Is?

I was recently contacted regarding an insurance carrier that was requiring an insured property owner to disprove a policy exclusion before providing coverage. Litigation concerning policy exclusions is not uncommon. Courts in New Jersey have routinely held the burden of establishing a cause of action is on the plaintiff. The same is true in first party insurance litigation. In such instances, the plaintiff policyholder must establish they have suffered a loss that fits within the basic policy terms. The questions remains, however, who bears the burden with regards to any exclusions in the policy.


Continue Reading Who Bears The Burden Of Proof On Policy Exclusions In New Jersey

In litigation, parties’ burdens of proof are extremely important. Litigators must understand the burdens of proof applicable to the case they are involved in. Think of the difference between having to prove that a loss is covered pursuant to specific policy terms and having to prove only that a loss that was fortuitous and it affected the insured property. The first situation may be appropriate under a named-peril policy. The second is a policyholder’s burden of proof under an all-risk policy. A recent New York case involved the second situation and an all-risk policy.1


Continue Reading Policyholders’ Burden Of Proof Under All-Risk Policies Is Characterized As “Relatively Light”