Burden of Proof

Subscribe to Burden of Proof

Lately, it seems defense counsel is removing nearly every insurance case to federal court. They usually accomplish this by asserting diversity jurisdiction. For those who aren’t familiar, federal diversity jurisdiction refers to a legal principle that allows civil cases involving parties from different states with more than $75,000 at stake to be heard in federal, rather than state, court. The party asserting federal jurisdiction exists bears the burden of proving it.…

Continue Reading The Problem with Post-Removal Jurisdictional Discovery in Federal Court

Exclusion provisions in a policy work to limit the range of coverage by restricting certain events or losses; often serving as a basis to deny a claim. Nevada case law has long held the burden is on the insured to prove a claim falls within the scope of coverage, and the insurer bears the burden to prove the applicability of an exclusion. However, for the first time the Supreme Court for the State of Nevada was faced with the question of who bears the burden to prove an exception to a policy’s exclusion provision, essentially restoring coverage.1…
Continue Reading Nevada Insureds Bear Burden of Proving Exceptions to Exclusion Provisions

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