PJC Business

C ONTRACTS

PJC 101.59

so forth. See PJC 101.7, 101.18–101.31. The question could be modified to ask about any defense that would excuse the insurer from payment, other than a policy exclusion (see the question above) or the failure of the insured to perform a condition or cove nant (see PJC 101.60): QUESTION ______ Was Insurer, Inc. ’s failure to comply excused? [ For its failure to comply to be excused, Insurer, Inc. must show (insert exception, limitation, avoidance, or other affirmative defense) .] Answer “Yes” or “No.” Answer: _______________ Instruction on exclusion or limitation. When the evidence raises an exclusion or limitation on liability, the court should give a proper instruction. Hibernia Insur ance Co. v. Starr , 13 S.W. 1017, 1017 (Tex. 1890). When submitting specific questions based on policy exclusions, it may be necessary to instruct the jury on judicial interpretation of specific policy language. For example, in Aetna Life Insurance Co. v. McLaughlin , 380 S.W.2d 101, 102 (Tex. 1964), the supreme court decided which rule to follow in determining whether suicide by the insured barred recovery under an accidental death policy. After adopting the majority rule, the court held that the trial court’s instruction following the minority rule was erroneous. McLaughlin , 380 S.W.2d at 105. See also Republic National Life Insurance Co. v. Heyward , 536 S.W.2d 549, 556–57 (Tex. 1976) (eliminating the distinction between “accidental death” and “death by accidental means”). “Partly” or “solely”—concurrent causation, separate and independent causation, and allocation. Depending on the policy language, a loss may be cov ered if it is partially caused by a covered risk, even if damage was also caused by an excluded risk, to the extent the damage can be allocated between the causes. See Utica National Insurance Co. of Texas v. American Indemnity Co. , 141 S.W.3d 198, 204 (Tex. 2004); Dillon Gage Inc. of Dallas v. Certain Underwriters at Lloyds , 636 S.W.3d 640, 644 (Tex. 2021) (discussing “but for” causation). In cases involving separate and independent causation, the covered event and the excluded event each independently cause the plaintiff’s injury, and the insurer must provide coverage despite the exclusion. Utica National Insurance Co. of Texas , 141 S.W.3d at 204. Under the concurrent causation doctrine, the excluded and covered events combine to cause the plaintiff’s injuries. Utica National Insurance Co. of Texas , 141 S.W.3d at 204. Initially, the insured has the burden of pleading and proving facts that establish coverage under the terms of the policy. Seger v. Yorkshire Insurance Co. , 503 S.W.3d 388, 400 (Tex. 2016); JAW The Pointe, L.L.C. v. Lexington Insurance Co. ,

131