It is often forgotten that while an insurer bears the burden of proof in establishing the applicability of an exclusion, the insured first bears the burden of proving an occurrence.
The continued viability of this rule was recently reaffirmed by New York’s Appellate Division, Second Department.
In State Farm v. Raabe, State Farm’s insured Joseph Alessi was allegedly involved in a fight with Sean Raabe and Anthony Bisignano, Jr. in a church parking lot. State Farm brought an action seeking a declaration that it had no duty to defend Alessi for his actions. However, before commencing its declaratory action, State Farm did not issue a timely disclaimer; Raabe and Bisignano moved for summary judgment on that basis and argued that State Farm had waived the right to contest coverage. In opposing their motion, State Farm did not dispute that its disclaimer was untimely. Instead, it argued that a disclaimer was completely unnecessary because the claim did not fall within the coverage terms of its insurance policy.
The court agreed with State Farm. It held that there was a question of fact as to whether the fight was an “accident” and thus an “occurrence.” State Farm lives to fight another day.
Thanks to Michael Nunley for his contribution to this post.