Legal Memorandum: Establishing Lack of Insurance Coverage

Issue: Under New York law, in order to establish a lack of coverage, what is an insurer’s burden?

In order to prove that an insured’s loss is excluded from coverage under the policy, an insurer must show that its construction of the exclusionary clauses is the only reasonable one, that the exclusions are stated in clear and unmistakable language, and that the clauses apply in this case.  Sincoff v. Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386, 390-91, 183 N.E.2d 899, 230 N.Y.S.2d 13, 15-16 (1962); Breed v. Insurance Co. of N. America, 46 N.Y.2d 351, 353-54, 385 N.E.2d 1280, 413 N.Y.S.2d. 352, 354-55 (1978).        

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