FIRST PARTY PROPERTY BURDEN OF PROOF

SUMMARY: The insured has the initial burden to show there was damage to the property during the policy period. After the insured meets this initial burden, the burden shifts to the insurer to show an exclusion applies under the policy. If the insurer can show an exclusion applies under the policy the burden will shift back to the insured to show there is an exception to the exclusion.

Jones v. Federated National Insurance Company
235 So.3d 936 (Fla. 4th DCA 2018)

The proper allocation of the shifting burden of proof in a case involving an all-risk insurance contract where more than one potential cause of damage was raised by the parties, is as follows:

1. The insured has the initial burden of proof to establish that the damage at issue occurred during a period in which the damaged property had insurance coverage. If the insured fails to meet this burden, judgment shall be entered in favor of the insurer.


2. If the insured's initial burden is met, the burden of proof shifts to the insurer to establish that (a) there was a sole cause of the loss, or (b) in cases where there was more than one cause, there was an “efficient proximate cause” of the loss.


3. If the insurer meets the burden of proof under either 2.(a) or 2.(b), it must then establish that this sole or efficient proximate cause was excluded from coverage by the terms of the insurance policy. If the insurer does so, then judgment shall be entered in its favor. If the insurer establishes that there was a sole or efficient proximate cause, but fails to prove that this cause was excluded by the all-risk insurance policy, then judgment shall be entered in favor of the insured.


4. If the insurer fails to establish either a sole or efficient proximate cause, and there are no applicable anti-concurrent cause provisions, then the concurrent cause doctrine must be utilized. Applying the concurrent cause doctrine, the insurer has the initial burden of production to present evidence that an excluded risk was a contributing cause of the damage.1 If it fails to satisfy this burden of production, judgment shall be entered in favor of the insured.


5. If the insurer does produce evidence that an excluded risk was a concurrent cause of the loss, then the burden of production shifts to the insured to present evidence that an allegedly covered risk was a concurrent cause of the loss at issue. If the insured fails to satisfy this burden of production, judgment shall be entered in favor of the insurer.


6. If the insured produces evidence of a covered concurrent cause, the insurer bears the burden of proof to establish that the insured's purported concurrent cause was either (a) not a concurrent cause (i.e., it had no (or a de minimis ) causal role in the loss), or (b) excluded from coverage by the insurance policy. If the insurer fails to satisfy this burden of proof, judgment shall be entered in favor of the insured.

EFH v. Lexington Ins. Co., 913 So. 2d 673 (Fla. 3rd DCA 2005) states: If there is an exception to the exclusion, the burden once again is placed on the insured to demonstrate the exception to the exclusion.