The Reversal of an Arizona Divergence – 2
Allegations of concealment or misrepresentation, like allegations of fraud, may harm an insureds reputation, several countervailing concerns persuaded the court that for insurance contract defenses, the preponderance of the evidence standard properly balances the parties and society’s interests. First is ease of application. Applying an identical preponderance burden of proof for both the insured in establishing coverage and the insurer in establishing a contract defense will reduce juror confusion. This is especially true in a case like this one, in which the insurers defense is simply the flip-side of the plaintiffs claim. A jury will more easily comprehend that the plaintiff-insured must prove theft and the defendant-insurer must prove the misrepresentation by the same standard.
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