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Queen City Farms Inc. v. Aetna Casualty & Surety Co.9/9/1994
that the injury or damage was expected or intended. The Court of Appeals upheld the trial court's determination that the insured, QCF, had the burden of proving that damage was neither expected nor intended. QCF argues the insurer bears the burden of proof.
The Court of Appeals' holding is supported by E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wash. 2d 901, 726 P.2d 439 (1986). There, an insurance policy provided that there was coverage for an occurrence which resulted in "'bodily injury or property damage neither expected nor intended from the standpoint of the Insured'". E-Z Loader, at 904 (quoting policy). The court said that a claim would be covered only if the insured proved the existence of three elements, including that the occurrence resulted in bodily injury neither expected nor intended by the insured. E-Z Loader, at 906. The court relied upon the principle that the burden is on the plaintiff to show that a loss falls within the terms of the policy. Waite v. Aetna Cas. & Sur. Co., 77 Wash. 2d 850, 853, 467 P.2d 847 (1970), cited in E-Z Loader, at 906; McDonald v. State Farm Fire & Cas. Co., 119 Wash. 2d 724, 731, 837 P.2d 1000 (1992).
To satisfy the "occurrence" definition, and to come within the coverage provision, it must be established that the harm was unexpected or unintended. There is never coverage where the harm is expected or intended.
QCF argues, though, that the insurer should bear the burden of proof under the principle that the insurer bears the burden of proving applicability of exclusions from coverage. See Aetna Ins. Co. of Hartford v. Kent, 12 Wash. App. 442, 447, 530 P.2d 672, reversed on other grounds, 85 Wash. 2d 942, 540 P.2d 1383 (1975). QCF points out that while the language "unexpectedly and unintentionally" appears in the "occurrence" definitions of these policies, this court in Grange Ins. Co. v. Brosseau, 113 Wash. 2d 91, 93, 97, 776 P.2d 123 (1989) considered two policies, one where such language was in the "occurrence" definition and the other where the language was in an exclusion, and termed both "exclusionary."
However, the argument that the "unexpected or unintended" language is exclusionary is not a particularly strong argument when deciding who has the burden of proof on this issue, because "virtually all the language in the Insuring Agreement of CGL policies after the insurer's promise to 'pay all sums the insured shall become legally obligated to pay . . .' qualifies or limits the scope of this promise in one way or another." K. Abraham, Environmental Liability Insurance Law 140-41 (1991).
Thorsrud, Love & Gottlieb, Insurance Coverage for Pollution Liability in Washington. What Constitutes an "Occurrence?" The Insurer's Perspective, 28 Gonzaga L. Rev. 579, 604 n.168 (1992-93).
Moreover, although there is some tension between E-Z Loader and Brosseau, the court in Brosseau did not address the burden of proof issue, but instead the case involved construction of the policy.
Professor Abraham suggests other considerations, including the notion that the burden of proof should be on the insured because the insured is "likely to be in possession of or have greater access to whatever information exists about its expectations or intentions . . . ." K. Abraham, at 140. This reasoning is compelling in the case where a subjective standard is applied.
In light of the conclusion in
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