§ 39.3 Burden of Proof

• Library: Insurance Law in Oregon (OSBar) (2020 Ed.)

§ 39.3 BURDEN OF PROOF

§ 39.3-1 Burden of Proving Coverage

The initial burden of proving coverage is on the insured. Lewis v. Aetna Ins. Co., 264 Or 314, 316, 505 P2d 914 (1973). For example, the beneficiary of a life insurance policy has the burden of establishing that the death resulted from an accident within the meaning of the policy. In Stuart v. Occidental Life Ins. Co., 156 Or 522, 527-28, 68 P2d 1037 (1937), for example, the beneficiary had the burden to establish that her husband's death resulted from "an accidental injury of the kind covered by the contract." See also Coburn v. Utah Home Fire Ins. Co., 233 Or 20, 22, 375 P2d 1022 (1962) (the insured was required to prove that the boat's sinking while moored was caused by a "peril of the sea"); La Barge v. United Ins. Co., 209 Or 282, 300, 306 P2d 380 (1957), overruled on other grounds as stated in Perry v. Hartford Acc. & Indem. Co., 256 Or 73, 82, 471 P2d 785 (1970) (the insured proved that arthritis was not the cause of his accident). Cf. Prudential Prop. & Cas. Ins. Co. v. Lillard-Roberts, No CV-01-1362-ST, 2002 WL 31495830 at *7-8, 2002 US Dist LEXIS 20387 at *21-22 (D Or June 18, 2002), motion to vacate den, 2002 WL 31974401 (D Or Nov 4, 2002) (when the insured's property was insured by an "all risks" policy that covered physical losses from perils that were not excluded from the policy, the insured had only a limited burden to show that a physical loss occurred to covered property; the issue was whether the insured "has a claim for loss due to physical damage to her dwelling and other structures caused by the presence of mold").

The insured's duty of proving that the cause of the loss was a peril insured against also extends to proving that the policy was in effect when the loss occurred. Am. Fed. Sav. & Loan Ass'n v. Rice, 76 Or App 635, 639-40, 711 P2d 150 (1985); see also Kalgin Packing Co. v. Fire Ass'n of Philadelphia, 67 F2d 569 (9th Cir 1933) (the issue on appeal was "whether there was any substantial evidence that the fire occurred before noon on November 15, 1931, when the policy expired"); Heipershausen Bros. v. Cont'l Ins. Co. of City of New York, 25 F Supp 1010 (SDNY 1938).

When the insured brings a claim against agents of an insurer, the insured has the burden to show that the agents were authorized to act as such. Williams v. Int'l Harvester Co., 172 Or 270, 141 P2d 837 (1943), overruled on other grounds by Rogue Valley Mem'l Hosp. v. Salem Ins. Agency, Inc., 265 Or 603, 510 P2d 845 (1973).

§ 39.3-2 Proving Applicable Exclusions

Once the insured proves the existence and material terms of the policy (see § 39.3-1), the burden then shifts to the insurer to prove that the policy excludes coverage. See State Farm Fire & Cas. Co. v. Reuter, 299 Or 155, 159 n 3, 700 P2d 236 (1985); Stanford v. Am. Guar. Life Ins. Co., 280 Or 525, 527, 571 P2d 909 (1977), appeal after remand, 281 Or 325, 574 P2d 646 (1978); Paxton-Mitchell Co. v. Royal Indem. Co., 279 Or 607, 614, 569 P2d 581 (1977); see also Royal Indem. Co. v. John F. Cawrse Lumber Co., 245 F Supp 707, 709-10 (D Or 1965) (applying Oregon law, the court stated that an exclusion "must be strictly construed against the insurance company").

For example, after the insured presents prima facie evidence of ownership of an automobile for purposes of auto insurance, that evidence may be rebutted with the insurer's evidence of another person's control over the vehicle. Barber v. George, 144 Or App 370, 372-73, 927 P2d 140 (1996), rev den, 324 Or 560...