The Burden of Proof To Void Coverage – 2
The burden of establishing if the act is intentional is different in different jurisdictions. According to New York, New Jersey, and Colorado law, the insurer bears the burden of proving that the insured expected or intended the property damage in environmental contamination cases. The rationale for these holdings is that the expected and intended language from the policies resembles the exclusionary language found elsewhere in CGL policies, such as pollution exclusions. Because the insurer bears the burden of proving that an exclusion in the policy precludes coverage, the burden is on the insurer to prove the insured intended or expected the harm caused.
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