1.21 Lost or Destroyed Insurance Policies

• Jurisdiction: Arizona

The insured has the burden of establishing both the existence, as well as the material terms, of a lost insurance policy.^[276]

In the case of a lost insurance policy, the insured must prove the material terms of the policy because, absent the actual terms of the policy, it is impossible for a trial court to declare a party's rights and duties under the policy. The proof of the lost policy's terms and conditions must be sufficient to permit the trial court to determine the legal effect of the parties' agreement.^[277]

The insured seeking to introduce the secondary evidence of a lost insurance policy must demonstrate that he did not lose or destroy the document fraudulently or in bad faith.^[278]

The insured must also show his due diligence in attempting to find the lost policy.^[279] Once the insured establishes that the policy existed but it cannot be found despite good faith efforts to locate it, the courts will then generally admit probative evidence to establish the contents of the lost policy.^[280]

In a lawsuit based upon an insurance policy, the insured's complaint must set forth the terms of the policy in general, or the insured should append the policy, or a copy of the policy to the complaint.^[281]

The insured need not allege all of the provisions of the insurance policy. At a minimum, however, the insured must include in the complaint the policy number of the policy, which is alleged to have been issued, and the material terms of the policy.^[282]

The requirement that plaintiff must plead the policy terms, including the policy number, in the complaint is not affected by an allegation that the insurance company may have a copy of the alleged policy.^[283]

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Notes:

[276]Dart Indus., Inc. v. Commercial Union Ins. Co., 77 Cal. App. 4th 916, 923 (2000) ("The burden was on Dart, the insured, to establish the policy existence and its material terms."); Harrow Products, Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1020 (6th Cir. 1995) ("Harrow bears the burden of proving coverage by Liberty Mutual policies, as well as the terms and conditions of that coverage."); Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130 (5th Cir. 1992) ("The insured must prove the terms of the insurance contract between the parties in order to establish coverage under the policy."); Boyce Thompson Inst. v. Ins. Co. of N. Am., 751 F. Supp. 1137, 1140 (S.D.N.Y 1990) ("The insured must make a threshold showing that insurance policies exist that indeed provide such...