Tag Archives: policy exclusion

KNOW YOUR BURDEN OF PROOF IN AN INSURANCE COVERAGE DISPUTE DEALING WITH AN ALL RISK POLICY

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Understanding your burden of proof is vital. The burden of proof goes to what a party NEEDS to prove to satisfy or prove the claims or defenses asserted. It’s need-to-know when litigating and trying a case (whether in court or arbitration).

The insurance coverage dispute of Valer v. Citizens Property Insurance Corp., 50 Fla.L.Weekly D126a (Fla. 3d DCA 2025), discusses an insured and insurer’s burden of proof in an insurance coverage dispute with an all risk property insurance policy, which is a property insurance policy that covers all losses except those losses that are excluded in the policy.

The insured’s initial burden of proof is to prove that the property suffered a loss while the property insurance policy was in effect. See Valer, supra. Once the insured satisfies this burden, the burden of proof then shifts to the insurer to prove that the claimed loss falls under a policy exclusion in the property insurance policy. Id.

In Valer, the trial court applied the wrong burden of proof incorrectly believing the insured needed to disprove an exclusion. The trial court was wrong. An insured does not have an initial burden of proof to disprove an exclusion. That burden falls on the insurer.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

ENDORSEMENT TO INSURANCE POLICY CONTROLS

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I’ve said this before, and I’ll say it again: an insurance policy is a complicated reading and this reading gets compounded with endorsements that modify aspects of the policy.

What you think may be covered may in fact not be covered by virtue of an endorsement to the insurance policy.  This is why when you request an insurance policy you want to see the policy PLUS all endorsements to the policy.  And when you analyze a policy, you need to do so with a full reading of the endorsements.

An endorsement to an insurance policy will control over conflicting language in the policy.  Geovera Speciality Ins. Co. v. Glasser, 47 Fla.L.Weekly D436a (Fla. 4th DCA 2022) (citation omitted).

The homeowner’s insurance coverage dispute in Glasser illustrates this point.  Here, the policy had a water loss exclusion.  There was an exception to the exclusion for an accidental discharge or overflow of water from a plumbing system on the premises.   But there was an endorsement.  The endorsement modified the water loss exclusion to clarify that the policy excluded water damage “in any form, including but not limited to….”  Examples were then given which did not include the accidental discharge or overflow of water from a plumbing system.

The homeowner filed an insurance coverage dispute against the property insurance carrier for a water damage claim. Specifically, a pipe in a bathroom burst causing water damage.  The insured claimed this was covered because of the accidental discharge or overflow of water from a plumbing system exception.   The trial court agreed.  The appellate court did not.  Why?

The answer is simple. The endorsement.  “The insurer’s endorsement language…expressly excludes damages caused by water in any form, including plumbing system accidents. Although the policy’s ‘Exception [t]o c.(6)’ expressly covers accidental discharges of water from a plumbing system, it is superseded by the endorsement which excludes water loss in any form.”  Glasser, supra.

The insured argued, as it should, that the endorsement did not explicitly identify that water damage included accidental discharges of water from a plumbing system indicating that such was covered under the policy.  While true, the appellate court disagreed with this sentiment.  “‘[T]he mere fact that a provision in an insurance policy could be more clearly drafted does not necessarily mean that the provision is otherwise inconsistent, uncertain or ambiguous.’  While this policy may require the reading of multiple policy provisions, it is unambiguous and simply does not cover the water loss suffered by the insured.”  Glasser, supra (internal citation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.