PJC Business

PJC 101.58

C ONTRACTS

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. Instructions based on policy language. The comments accompanying PJC 101.57 regarding the description of covered loss, instructions based on policy lan guage, and instruction based on judicial construction or definition also apply to PJC 101.58. “Do not include” instruction on excluded or paid damages. When an exclu sion is at issue, the jury should be instructed not to include damages, if any, from the excluded cause. Any instruction should follow the policy language on which the insurer relied, subject to the other rules set out above. When no exclusion is at issue, or when the dispute is over whether an exception to the exclusion applies, the “do not include” instruction should be omitted. When the jury hears evidence that the insurer has partially paid the loss, the jury should be instructed not to include in its answer any sums that have already been paid, to avoid confusion about whether the insurer is entitled to or will receive a credit. Alternatively, the jury could simply be asked to determine the amount of unpaid dam ages. Instructing jury on measure of damages. It may be appropriate to instruct the jury on the measure of damages under the applicable policy provision. See U.S. Fire Insurance Co. v. Stricklin , 556 S.W.2d 575, 582 (Tex. App.—Dallas 1977), writ ref’d n.r.e. 565 S.W.2d 43 (Tex. 1978) (where market value is proper measure of damages, trial court should instruct jury on difference in value as measure of damages); Coff man , 540 S.W.2d at 453 (“daily loss of rental income” defined); Colvert , 425 S.W.2d at 38 (“reasonable cash market value”). When a damage limitation in the policy is raised by the evidence, it is error not to instruct the jury. Hibernia Insurance Co. v. Starr , 13 S.W. 1017, 1017 (Tex. 1890). It is also error not to instruct the jury on failure to mitigate when raised by the evidence. Eagle Star & British Dominions Insurance Co. of London v. Head , 47 S.W.2d 625, 630 (Tex. App.—Amarillo 1932, writ dism’d w.o.j.). A defensive mitigation instruction is found at PJC 115.8.

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