We all have heard Churchill’s commencement speech in 1941 where he included those famous words “never give in, never give in, never, never, never…” Brandon put an entry on the blog below about the burden of proof in an arson case, relying upon a case in which he was involved styled Cincinnati v. Banks.  I was in that case also, and his description of what the court ruled is accurate.  But, having now given full disclosure, I continue to maintain that it is incorrect.

Here’s the basic issue. A property policy requires that any loss be “accidental.” If that requirement exists in the insuring agreement, who should have the burden of proving that the loss is covered?  I contend it should be the insured.

The briefing in the Banks case is public record.  One of the cases we included in our briefing was a unreported Tennessee Court of Appeals case styled William G. Hall v. Allstate Insurance Company, 01-A-01-9607-CV-00305, (Tenn. Ct. App., 1996). In Hall, the insured sued Allstate for damage to his truck caused by fire – a fire Allstate believed was the result of arson by the insured.  The trial court found Hall failed to carry his initial burden of proof and awarded judgment in favor of Allstate. Id. at 3.  Hall appealed, and one of the issues on appeal was whether the “trial court erred as a matter of law, in holding that the [insured] had the burden of proof as to the nonexistence of an exception or defense to the insurance policy.” Id.

As referenced by the Tennessee Court of Appeals in its decision in Hall, the Allstate policy covered “‘loss’ mean[ing] direct and accidental loss of or damage to” the automobile, requiring both a direct and accidental loss. Id. at 4.  The Court of Appeals expressly found “Hall had the burden of proving these details of his claim.” Id.  In its decision, the Tennessee Court of Appeals held under Tennessee law it was first the insured’s:

burden at trial to show that the loss fell within the terms of the policy.   We are of the opinion that the trial court’s finding that the [insured] failed to prove the accidental nature of the fire and the entry of judgment in favor of Allstate was proper.  There is ample evidence from which the trial court found that the loss to the pickup truck was not accidental and that [the insured] failed to meet his burden of showing that a covered loss occurred.

Hall. at *5-6 (emphasis added).

A federal court decision is not binding on a state court. Obviously, under our rules, neither is an unpublished state decision.  But I submit to you that the issue is not as “black and white” as my learned co-author has put it.  This issue still needs to be addressed by the Tennessee Court of Appeals of the Tennessee Supreme Court in a reported opinion to resolve the question of how Tennessee will address this issue once and for all.   Eliminating the requirement that the insured establish an “accidental” loss seems to be rewriting the policy, which should not occur. I just wanted to put this case out there for everyone’s consideration.

The opinion was not available on West initially, but we advised West of the omission and it is now included at 1996 WL 34905699. Here is a link to the unreported case of Hall v Allstate Opinion Burden.