Zurich American Insurance Company v. Ironshore Specialty Insurance Company

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The Ninth Circuit has certified the question to the Nevada Supreme Court of who has the burden to prove an exception to an exclusion, and whether a party may rely on extrinsic evidence to prove the exception to an exclusion.

October 5, 2020
Michael Velladao - Lewis Brisbois

In Zurich American Ins. Co. v. Ironshore Specialty Ins. Co., __F.3d__(July 2, 2020), the United States Ninth Circuit Court of Appeals certified the following questions to the Nevada Supreme Court in connection with a contribution action for defense costs filed by Zurich American Insurance Company and American Guarantee & Liability Insurance Company (“Zurich”) against Ironshore Specialty Insurance Company (“Ironshore”) with respect to the defense and settlement of 14 construction defect lawsuits on behalf of eight subcontractors (“lawsuits”) insured by both companies:

Whether, under Nevada law, the burden of proving the applicability of an exception to an exclusion of coverage in an insurance policy falls on the insurer or the insured? Whichever party bears such a burden, may it rely on evidence extrinsic to the complaint to carry its burden, and if so, is it limited to extrinsic evidence available at the time the insured tendered the defense of the lawsuit to the insurer?

Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com


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