PJC Business

PJC 101.59

C ONTRACTS

PJC 101.59 Insurance Contracts—Exclusions, Limitations,

Avoidance, and Other Affirmative Defenses—Specific Policy Language

QUESTION ______ [ Were Paul Payne’s damages ] [ Was the (loss) (event) (other description) ] [ , if any, ] caused [ partly or solely ] by [ description of excluded cause ] ? [Insert instructions and definitions, if appropriate.] Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. An insurer has the burden to plead and prove any exclusion, limita tion, avoidance, or other affirmative defense. Tex. R. Civ. P. 94; Tex. Ins. Code §554.002. The submission of a policy exclusion may require a separate question. Union Mutual Life Insurance Co. v. Meyer , 502 S.W.2d 676, 679 (Tex. 1973). When the insurer’s exclusion, limitation, or other defense to coverage would be a complete bar to recovery, this question would be proper to submit the defense. When the defense merely limits recovery, PJC 101.58 should be used to allocate damages between cov ered and excluded causes. The proper sequence of these questions may depend on the facts of the particular case. When it is stipulated or undisputed that the insurer is liable for a certain amount of damages under the agreement unless the jury finds an exclusion or other defense, this question is sufficient to determine liability and damages. When liability or damages are otherwise disputed, the insured should also submit and obtain findings on affirma tive issues as in PJC 101.57 and 101.58. If damages are not disputed, the words if any should be omitted. Broad-form submission. PJC 101.59 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). Defenses. The general PJC contract questions submit defenses by asking whether the failure to comply was “excused” and then instructing on excuses, such as the plain tiff’s material breach, anticipatory repudiation, waiver, estoppel, duress, mistake, and

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