CACI 2303 Affirmative Defense—Insurance Policy Exclusion

California Civil Jury Instructions CACI

2303 Affirmative Defense—Insurance Policy Exclusion

[Name of defendant] claims that [name of plaintiff]’s [liability/loss] is not covered because it is specifically excluded under the policy. To succeed, [name of defendant] must prove that [name of plaintiff]’s [liability/loss] [arises out of/is based on/occurred because of] [state exclusion under the policy]. This exclusion applies if [set forth disputed factual issues that jury must determine].

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.

Give this instruction if the court has determined that an exclusionary clause in an insurance policy might apply to foreclose coverage, but the applicability turns on a question of fact. Identify with specificity the disputed factual issues the jury must resolve to determine whether the exclusion applies.

This instruction can be used in cases involving either a third party liability or a first party loss policy. Use CACI No. 2306, Covered and Excluded Risks—Predominant Cause of Loss, rather than this instruction, if a first party loss policy is involved and there is evidence that a loss was caused by both covered and excluded perils.

Sources and Authority

“The burden of bringing itself within any exculpatory clause contained in the policy is on the insurer.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 880 [151 Cal.Rptr. 285, 587 P.2d 1098].)

“The 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.” (Aydin Corp. v. First State Insurance Co. (1998) 18 Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213].)

Once the insurer proves that the specific exclusion applies, the insured “should bear the burden of establishing the exception because ‘its effect is to reinstate coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp.supra, 18 Cal.4th at p. 1188.)

“The interpretation of an exclusionary clause is an issue of law subject to this court’s independent determination.” (Marquez Knolls Property Owners Assn., Inc. v. Executive Risk Indemnity, Inc. (2007) 153 Cal.App.4th 228, 233 [62 Cal.Rptr.3d 510].)

“[T]he question of what caused the loss is generally a question of fact, and the loss is not covered if the covered risk was only a remote cause of the loss, or the excluded risk was the efficient proximate, or predominate cause.” (State Farm Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2 Cal.Rptr.2d 183, 820 P.2d 285].)

Secondary Sources

2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 85, 88
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial, ¶¶ 15:911–15:912 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
4 California Insurance Law and Practice, Ch. 41, Liability Insurance in General, § 41.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502 (Matthew Bender)