| If an insured sustains a loss and is denied payment by an insurer under an insurance policy, he may bring an action against the insurer to recover his claimed loss. The insured's complaint may state his cause of action generally and in brief and simple language. Some statutes provide optional methods of pleading. Courts may construe the averments of the complaint liberally. Matters not pleaded are generally waived.
What an insured needs to allege
Generally, a complaint should allege:
- the making and delivery of the insurance contract
- coverage under the contract
- the insured's performance of essential conditions
- the insured's loss within the policy terms and coverage period
- nonpayment by the insurer
Depending on the jurisdiction, a complaint may be required to allege:
- the insured's payment of the premiums when due
- the status of the insurer as a suable entity
- the relevant policy provisions; some statutes require that the policy be attached to the complaint
- the insurer's waiver of a particular policy provision
- an estoppel of the insurer to plead a certain defense
- the insured's compliance with conditions of the policy that require the lapse of a certain time period prior to filing suit or the filing of the petition within a certain timeframe
- how the exceptions under which the insurer could be exempt from liability do not apply; some courts require such exemptions to be raised by the insurer
- presentation of proofs of loss and demand for payment; some courts regard such matters as matters of defense to be raised by the insurer
- the amount claimed, including penalties and attorneys' fees
What an insured need not allege
It need not be alleged that the insurer was authorized to enter into the contracts. It is also not necessary to attach the application for insurance to the petition. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |