CACI No. 2304. Exception to Insurance Policy Exclusion - Burden of Proof

Judicial Council of California Civil Jury Instructions (2023 edition)

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2304.Exception to Insurance Policy Exclusion - Burden of Proof
[Name of plaintiff] claims that [his/her/nonbinary pronoun/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/nonbinary pronoun/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
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
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, Ch. 15-I, Trial
¶¶ 15:913-15:915.5 (The Rutter Group)
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)

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