PJC Business

C ONTRACTS

PJC 101.58

Many property policies impose a duty on the insured after a loss to protect the prop erty from further damage and make reasonable and necessary repairs to protect the property. See Carrizales v. State Farm Lloyds , 518 F.3d 343, 349–50 (5th Cir. 2008) (construing Texas law). Mitigation costs, therefore, are a recoverable element of dam ages, as in other contract cases. PJC 115.4 provides an instruction for recovering miti gation expenses. For a discussion about the propriety of, and issues concerning, asking the jury to find unpaid benefits due under the policy as an element of damages, and the need to avoid “the risk of conflicting [jury] answers,” as discussed in USAA Texas Lloyds Co. v. Menchaca , 545 S.W.3d 479, 489 (Tex. 2018), in cases such as these, see the com ment “Policy benefits” in PJC 115.14. Burden of proof—separate question for exclusions and other defenses. PJC 101.58 puts the burden of proof on the insured. A separate question could ask whether the loss resulted from an excluded cause or fit within some other limitation, avoidance, or defense. See PJC 101.59. Separate questions may be required, because the insured has the initial burden to show that a loss is covered, and then the insurer has the burden to establish any exclusions. JAW The Pointe, L.L.C. , 460 S.W.3d at 603; Tex. R. Civ. P. 94; Tex. Ins. Code § 554.002. The above question, placing the burden on the insured, would also be proper to submit any exception to an exclusion that would bring the loss back within coverage. Telepak , 887 S.W.2d at 507–08 .

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