California Civil Jury Instructions (CACI)

2303. Affirmative Defense—Insurance Policy Exclusion

[Name of defendant] claims that [name of plaintiff]’s [liability/loss] is not covered because it is specifically excluded under the policy. To succeed, [name of defendant] must prove that [name of plaintiff]’s [liability/loss] [arises out of/is based on/occurred because of] [state exclusion under the policy].

New September 2003; Revised October 2008

Directions for Use

The instructions in this series assume the plaintiff is the insured and the defendant is the insurer. The party designations may be changed if appropriate to the facts of the case.

This instruction can be used in cases involving either a third party liability or a first party loss policy.

Sources and Authority

  • “The burden of bringing itself within any exculpatory clause contained in the policy is on the insurer.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 880 [151 Cal.Rptr. 285, 587 P.2d 1098].)
  • “The burden is on an insured to establish that the occurrence forming the basis of its claim is within the basic scope of insurance coverage. And, once an insured has made this showing, the burden is on the insurer to prove the claim is specifically excluded.” (Aydin Corp. v. First State Insurance Co. (1998) 18 Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213].)
  • Once the insurer proves that the specific exclusion applies, the insured “should bear the burden of establishing the exception because ‘its effect is to reinstate coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp., supra, 18 Cal.4th at p. 1188.)

Secondary Sources

Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group) ¶¶ 15:911—15:912

1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63

26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502 (Matthew Bender)