California Civil Jury Instructions (CACI)

2304. Exception to Insurance Policy Exclusion—Burden of Proof

[Name of plaintiff] claims that [his/her/its] [liability/loss] is covered under an exception to a specific coverage exclusion under the policy. To establish this coverage, [name of plaintiff] must prove that [his/her/its] [liability/loss] [arises out of/is based on/occurred because] [state exception to policy exclusion].

New September 2003

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.

Use this instruction only if the insurer is asserting that the insured’s claim is subject to an exclusion.

Sources and Authority

  • “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], internal citations omitted.)
  • 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) ΒΆΒΆ 15:913—15:915.5

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 (Matthew Bender)

12 California Points and Authorities, Ch. 120, Insurance, §§ 120.40, 120.42 (Matthew Bender)