PJC Business

PJC 101.57

C ONTRACTS

Transport, Inc. v. Oden , 678 S.W.2d 172, 176 (Tex. App.—Tyler 1984, no writ); Copenhaver v. Berryman , 602 S.W.2d 540, 544 (Tex. App.—Corpus Christi–Edinburg 1980, writ ref’d n.r.e.). Cf. Lyons v. Millers Casualty Insurance Co. of Texas , 866 S.W.2d 597, 601 (Tex. 1993) (involving a case arising prior to the adoption of Tex. Ins. Code § 554.002 and holding that “[w]hen covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reason able basis on which to allocate the damage”). PJC 101.58 allocates damages by asking the amount of damage caused by the covered peril and instructing the jury not to con sider damage caused by an excluded peril. If there is no question of covered versus excluded causes, it is unnecessary to include the words “partly” or “solely.” In other cases, policy language may provide that a loss is covered only if it is caused solely by a covered risk, exclusive of all other causes. See, e.g., Meyer , 502 S.W.2d at 677–79 (coverage for death resulting from bodily injury independent of all other causes); JAW The Pointe, L.L.C. , 460 S.W.3d at 608 (anti-concurrent-causation clause bars recovery where loss is concurrently caused by both covered and uncovered per ils). In such a case the word “solely” should be included in the question and “partly” should not. In other cases, even an excluded loss may be covered to the extent that an exception to the exclusion reflected in the policy applies and reinstates coverage to the extent of that exception. In such a case, the insured bears the burden to prove the exis tence and extent of application of the exception to the exclusion. Telepak , 887 S.W.2d at 507–08. Burden of proof—separate question for exclusions and other defenses. PJC 101.57 puts the burden of proof on the insured. A separate question could ask whether the loss resulted from an excluded cause or fit within some other limitation, avoidance, or defense. See PJC 101.59. Separate questions may be required, because the insured has the initial burden to show that a loss is covered, and then the insurer has the burden to establish any exclusions. JAW The Pointe, L.L.C. , 460 S.W.3d at 603; Tex. R. Civ. P. 94; Tex. Ins. Code § 554.002. The above question, placing the burden on the insured, would also be proper to submit any exception to an exclusion that would bring the loss back within coverage. Telepak , 887 S.W.2d at 507–08.

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