It's a jury question in this case.
In Vardanyan v. Amco Ins. Co., 243 Cal. App. 4th 779, 796, 197 Cal. Rptr. 3d 195, 208-09 (Cal. 5th DCA 2015), review denied (unreported), (Cal. March 9, 2016), the policy involved was issued to the owner of a rental house. It was an all risks policy and the insured under an all risks policy "does not have to prove that the peril proximately causing his loss was covered by the policy. This is because the policy covers all risks save for those risks specifically excluded by the policy." [Emphasis by the Court.]
The all risks carrier in that case convinced the trial judge that its proposed jury instruction correctly stated what the law ought to be, shifting the burden of proof to the insured to prove that the proximate peril was not excluded. The carrier's argument embodied in that requested instruction was so convincing that the defendant moved for a directed verdict on that ground. The lower court granted the carrier's motion for directed verdict and accordingly entered judgment in the carrier's favor, both on the insured's claim for breach of contract and on the insured's claim for breach of the implied covenant of good faith and fair dealing.
On appeal, a California intermediate appellate court ruled that the trial court had improperly shifted the burden of proof. The appellate court reversed the entire judgment previously entered in favor of the all risks carrier in that case, including on the insured's bad faith claim, and remanded for retrial.
The time to express disagreement with the burdens of proof under an all risks policy is before it is issued, such as by expressly changing the pertinent provisions in the policy or perhaps by not issuing an all risks policy at all. On the other hand, once premiums are collected, the time has already passed for philosophical or any other form of disagreement with how the policy ought to afford coverage.
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