Hitchens's Razor
This is a simple rule which says “what can be asserted without evidence can also be dismissed without evidence.”
The legal equivalent of Hitchens’s Razor, is the Latin maxim, “Ei incumbit probatio qui dicit, non qui negat” which translates as “proof lies on he who asserts, not on he who denies".
In insurance claims, Hitchens's Razor comes into play quite often. Insureds and insurers often operate at a “feeling level”.? They “feel” something is the case without any evidentiary basis of their assertions. They are driven by their own convictions. Eventually, they lose their argument in the courts.?
For instance, the most important aspect of any insurance claim is causation. How did the loss or damage occur? Why did it occur? What happened? When did it happen? These are the what, where, when, why, who and how questions. They may need critical analysis from various angles to determine if the liability of the insurer exists and if so, the extent thereof.?
First step in causation analysis is the insuring clause of the policy. The insured has the burden of proof to show that the loss or damage or event comes within the scope of the insuring agreement.?
If physical loss or damage is alleged by the insured, then the “physicality” is an aspect that the insured needs to prove. Mere failure to perform by a machine may not constitute physical loss or damage.?
If the coverage bar under the insuring clause is passed, then the issue shifts to single or multiple causation. Are there multiple causes or only one cause that caused the physical? loss or damage? If there are multiple causes, can the impact of each of the causes be segregated from the other??
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Once the causation is established by the insured, the insurer has to determine if any exclusions or limitations of the policy apply to the situation on hand.?
Depending on policy construction, one has to see if there are anti-concurrent causation (ACC) provisions in the policy. Absolute exclusions are ACC’s, which say things that are direct or indirect or connected to each other in any manner are all excluded collectively.?
If there are no applicable absolute exclusions, then proximate cause can be determined and coverage questions decided.?
After this comes aggravation. Are there any intervening causes that caused aggravation? There can be covered aggravations and excluded aggravation of loss or damage.?
Aggravation of damage brought by fire fighting is covered. If material is damaged by fire water, it is covered. However, during fire, stock is brought out and kept in the open without being protected from the elements. After some time, there is rain. Now, the rainwater damage to stock would be excluded aggravation, eventhough the stocks would not have been kept in the open, had it not been for the fire.?
Causation analysis can be complicated, so at every stage Hitchens’s Razor must be applied to throw out assertions that do not have any legal or logical basis. Sometimes you need to look closely with a magnifying glass to avoid missing crucial aspects, yet at other times you need to take a step back and look at the bigger picture. You need to know what to use when.
Executive Director at ICISA - International Credit Insurance & Surety Association
1 年Thank you, Hari. What you write is true without a doubt. The complication starts when terms and conditions, and indeed the nature of the cover, are not described fully and explicitly in the policy wording. Instead, both insurance buyers and underwriters often rely on market practice, tradition and the presumption of common understanding. Especially US courts will rely on what the policy says, not the meaning/assumptions behind it. How to prove that?
I am self employed
1 年@ Abdul Waheed ji No one is innocent these days , one could be at received end or ignorant.
Regional Underwriting Head at The New India Assurance Co. Ltd.
1 年The onus of proof also depends upon the nature of the insurance contract. In a named peril Fire policy the insured has to prove that the loss was caused by an insured peril and the onus is on the insurer to prove that the loss is due to an excluded peril. In an All Risk policy the insured just needs to prove that the loss has taken place. The onus is on the insurer to prove that the loss is due to an excluded peril. In a Marine policy the onus is on the insured to prove that the loss has taken place during the transit or the attachment of the risk.
Chief Financial Officer at The Universal Insurance Company Limited
1 年Yes, the rule is absolutely correct that onus of proof lies on the person who asserts and not on the person who defends. But keep in mind another rule "Audi altrem partem" which means that nobody should be condemned unheard and in this case if the evidence is weak, concocted or doctored then also assertion is liable to be dismissed. In my view exclusion or partial exclusion clauses not explicitly and categorically informed to the insured while making insurance contract then the claim cannot be denied by the insurer to put the innocent policyholder to bear the claim
Senior Corporate Trainer, Independent Director, Rainmaker, International Consultant, Subject Matter Expert, Author
1 年But here's the catch. Most things which are true cannot be proven with evidence. Either there is no evidence, or it is not within your control, or you no longer have access to it.