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Once the Insurer Shows an Exclusion to Coverage Applies, the Burden is on the Insured to Demonstrate an Exception to the Exclusion Applies

In finding the insurer was properly awarded summary judgment, the Second Department explained the burdens of proof re: exclusions from coverage (burden on insurer) and exceptions to exclusions from coverage (burden on insured):

“In determining a dispute over insurance coverage, we first look to the language of the policy” … . Although the insurer has the burden of proving the applicability of an exclusion …, it is the insured’s burden to establish the existence of coverage … . Thus, “[where] the existence of coverage depends entirely on the applicability of [an] exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied” … .

The defendant [insurer] established its prima facie entitlement to judgment as a matter of law by demonstrating the applicability of an exclusion in the plaintiff’s policy … . … [T]he plaintiff failed to raise a triable issue of fact regarding the applicability of an exception to the exclusion … . Copacabana Realty, LLC v Fireman’s Fund Ins. Co., 2015 NY Slip Op 06106, 2nd Dept 7-15-15

 

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