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I have referred previously to the difficulties sometimes encountered with insurance companies.

However, an insurer does not always have the advantage.

If an insurer, meeting a claim of wrongful refusal of indemnity (meaning, the insured person sues for breach of contract following the making of a rejected claim), pleads a simple denial, the court will invariably restrain the defendant insurer from making an affirmative case and the insurer will be confined to undermining the plaintiff’s case (if it is possible).

This means that the plaintiff cannot and should not be surprised, in the litigation, by the advancement of some theory explaining the mechanism of loss (justifying the refusal of indemnity cover). In other words, the defendant insurer is obliged to plead its specific case and reason for refusing cover and cannot take the plaintiff by surprise in the running of the case.

Furthermore, if the defendant insurer is claiming that the claim falls into an exception specified in the contract of insurance, it is for the insurer defendant to prove that fact and not for the plaintiff insured to disprove it.