California Civil Jury Instructions (CACI)
2305. Lost or Destroyed Insurance Policy
[Name of plaintiff] claims that [he/she/it] was covered under an insurance policy that was lost or destroyed. To establish coverage under a lost policy, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was insured under the lost policy during the period in question; and
2. That the terms of the policy included the following:
a. [describe each policy provision essential to the claimed coverage].
[Name of plaintiff] is not required to prove the exact words of the lost policy, but only the substance of the policy’s terms essential to [his/her/its] claim for insurance benefits.
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.
Read this instruction in conjunction with CACI No. 2300, Breach of Contractual Duty to Pay a Covered Claim—Essential Factual Elements. Whether the terms of a lost policy must be established by a heightened degree of proof appears to be an open issue. The Supreme Court in Dart Industries, Inc. v. Commercial Union Insurance Co. (2002) 28 Cal.4th 1059 [124 Cal.Rptr.2d 142, 52 P.3d 79], expressly declined to address the issue of the necessary degree of proof. (Id at p. 1072, fn. 4.)
This instruction is intended for use in cases where the plaintiff insured claims coverage for a loss under an insurance policy that was lost or destroyed without fraudulent intent on the part of the insured. The admission of oral testimony of the contents of a lost document requires the court to determine certain preliminary facts: (1) the proponent does not have possession or control of a copy of the policy; and (2) the policy was lost or destroyed without fraudulent intent on the part of the proponent. (Evid. Code, §§ 402(b), 1521, 1523(b).)
Sources and Authority
- Evidence Code section 402(b) provides, in pertinent part: “The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury.”
- Evidence Code section 1521(a) provides:
The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following:
(1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.
(2) Admission of the secondary evidence would be unfair.
- Evidence Code section 1523(b) provides, in pertinent part: “Oral testimony of the content of a writing is not . . . inadmissible . . . if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.”
- “In an action on an insurance policy that has not been lost or destroyed, it is well settled that ‘[t]he 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.’ . . . [¶] We see no reason not to apply this rule to a policy that has been lost or destroyed without fraudulent intent on the part of the insured. Thus, the claimant has the burden of proving (1) the fact that he or she was insured under the lost policy during the period in issue, and (2) the substance of each policy provision essential to the claim for relief, i.e., essential to the particular coverage that the insured claims. Which provisions those are will vary from case to case; the decisions often refer to them simply as the material terms of the lost policy. In turn, the insurer has the burden of proving the substance of any policy provision ‘essential to the . . . defense,’ i.e., any provision that functions to defeat the insured’s claim. Those provisions, too, will be case specific.” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1068, internal citations and footnotes omitted.)
- “A corollary of the rule that the contents of lost documents may be proved by secondary evidence is that the law does not require the contents of such documents be proved verbatim.” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1069.)
- “The rule . . . for the admission of secondary evidence of a lost paper, requires ‘that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found;’ and further, ‘the party is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.’ ” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1068, internal citation omitted.)
- “No fixed rule as to the necessary proof to establish loss [of a written instrument], or what constitutes reasonable search, can be formulated. . . . The sole object of such proof is to raise a reasonable presumption merely that the instrument is lost, and this is a preliminary inquiry addressed to the discretion of the judge.” (Kenniff v. Caulfield (1903) 140 Cal. 34, 41 [73 P. 803].)
- “Preliminary proof of the loss or destruction is required and it is committed to the trial court’s discretion to determine whether the evidence so offered is or is not sufficient.” (Guardianship of Levy (1955) 137 Cal.App.2d 237, 249 [290 P.2d 320].)
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 48—50, 59—60, 63, 65
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial, ¶¶ 15:978—15:994 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Identifying Sources of Coverage, § 8.8
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.42 (Matthew Bender)