Burden of proof on CGL Exclusions
Submitted by Jessica Gregory on 01 Aug, 2022
An insurer has the burden of proof in demonstrating that a policy exclusion applies to bar coverage. See Deshazior v. Safepoint Ins. Co., 305 So. 3d 752, 755 (Fla. 3rd DCA 2020) (If an insurer is relying on an exclusion to deny coverage/ a duty to defend, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion.)
However, once the insurer meets this burden, the burden shifts to the insured in regards to proving that an exception to an exclusion applies. See Empire Pro Restoration, Inc. v. Citizens Prop. Ins. Corp., 322 So. 3d 96, 98 (Fla. 4th DCA 2021. It is the insured who has the burden to prove an exception to an exclusion. Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346, 1355 (11th Cir. 2022).
When litigating coverage, it is important to keep in mind who will bear the ultimate burden on an issue at trial.