19th Apr 2016

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Insured’s burden of proof

1.    The insured has the burden of proving both the existence of the policy and its material terms.  [Searle v. Allstate Life (1995) 38 Cal. 3d 425, 438]  See § I47 INSURANCE POLICY; PROOF OF TERMS.

2.    If the contract claim is based on an alleged breach of the duty to defend, proof of actual coverage is not required.  [McMillin v. American Safety Indem. (2015) 233 Cal. App. 4th 518, fn. 23]

3.    The burden of the insured is to present only a prima facie case of entitlement to a defense by showing that the claims in the litigation potentially fall within the insuring provisions of the policy.  [McMillin v. American Safety Indem. (2015) 233 Cal. App. 4th 518, fn. 23]  See § P67 POTENTIAL LIABILITY UNDER POLICY [§ P67:2.6].

Insurer’s burden

1.    The burden then shifts to the insurer to show conclusively that the claims alleged in the litigation are not covered under the policy.  [McMillin v. American Safety Indem. (2015) 233 Cal. App. 4th 518, fn. 23]

Insured’s burden; exception to an exclusion

1.    If the insurer carries its burden by the application of an exclusion in the policy, then the insured has the burden of establishing an exception to the exclusion.  [McMillin v. American Safety Indem. (2015) 233 Cal. App. 4th 518, fn. 23]  See § E45 EXCEPTION TO AN EXCLUSION [§ E45:1 In general]; § D85 DUTY TO DEFEND [§ D85:16].

References in bold are to Mr. Cornblum’s legal text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE (2015, 2016), published by ThomsonReuters (1-800-344-5008 to order 2015 3-Volume text – 2016 Edition available June 2016).

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