Back in November 2013, I had the great honor to represent Larry and Sue Banks in their case against Cincinnati Insurance Company.  My partner, Clint Scott, and I presented the case to a federal jury and after deliberations, the jury returned a verdict for more than $2.2 million.  The insurance company accused the Banks of burning their house, but the Banks ultimately prevailed.   That is a story for another day, but one of the big legal issues in the case was who had the burden of proving the cause of the fire, the Banks or the insurance company.

In Cincinnati Insurance Co. v. Banks, 610 Fed. Appx. 453 (6th Cir. 2015), the Sixth Circuit answered that question by confirming that the insurance company bears the burden of proving arson.  In the Banks case, the insurance policy insured against “accidental” direct physical loss.  Because the general rule is that the insured bears the burden of proving that he or she comes within the terms of the policy’s coverage, the insurer argued that the Banks had to prove that the fire was accidental.  The problem was that such would require the court to ignore the longstanding principle that an insurer bears the burden of proving arson.  So the Sixth Circuit was faced with the unusual circumstance where two general rules of insurance policy interpretation conflicted.  In deciding the issue, the Sixth Circuit noted that there is a presumption in Tennessee that “the burning of a property is the result of an accidental cause,” and then held (without much discussion at all),  that the trial court properly held that the insurance company had the burden of proving arson and that the Banks did not bear the burden of proving the fire was accidental.  This opinion upholds the longstanding rule of law that the insurance company bears the burden of proving arson, even when the insurance policy seemingly shifts the burden to the insured by limiting its coverage to accidental losses.

A copy of the opinion can be downloaded here.