How to Prove the Existence of a Lost or Destroyed Policy
Need to Prove the Policy
The first obligation of an insured suing an insurance company is to prove the existence and the terms of the insurance policy on which the claim and suit are based. The party seeking coverage bears the burden of proving the existence of the policy as well as its material terms.
Insurer in action on life policy for disability benefits had burden to plead and prove policy provision which made giving notice and furnishing proof of disability condition precedent to recovery.
Both parties start from the proposition that the insured (Zidell) has the burden to prove coverage while the insurer (London) has the burden to prove an exclusion from coverage.
Lost or Destroyed Policy of Insurance
Insurance claims often arise long after the expiration of a policy that may still be required to provide defense and indemnity to the insured. The proof of such policies has created a new and unique profession called insurance archaeology. If damage first occurred many years after expiration or cancellation of a policy and the policy is lost or destroyed, the insured can still prove its existence and its contents through “an unsigned copy or by oral evidence.”
In Chatham v. Occidental Life Insurance Company of California, 248 Miss. 328, 158 So.2d 735 (1963), the Court quoted with approval the general well established rule that a policy of insurance may be cancelled at any time before loss, by agreement between the parties, and that such cancellation may be by consent of the parties, express or implied from the circumstances independently of the terms of the policy. When the insurance contract was effectively cancelled by agreement of the parties voluntarily and knowingly done when the Lost Policy Cancellation Release was signed and executed. T U.S. Fire Ins. Co. v. Coggins, 195 So.2d 482 (Miss., 1967).
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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