United National Insurance v. McConnico , 23 Mass. L. Rptr. 277 ( 2007 )

Fremont-Smith, Thayer, J.

In this case, the plaintiff insurance company and the owner of the motor vehicle (Dollar Rent-A-Car) which was involved in an accident in which defendant Sheila Kohlmeyer was killed, seek a declaratory judgment that the driver of Dollar’s automobile (McConnico) was not an authorized driver, so that there is no insurance coverage. Plaintiffs have moved in limine for an order shifting the burden to the defendants to prove that McConnico was an authorized driver, citing Gordon v. Safety Ins. Co., 417 Mass. 687 (1994) at 689, and Kelleher v. American Mut. Ins. Co., 32 Mass.App.Ct. 501 (1992) at 503-04, for the proposition that those claiming insurance coverage are the ones who have the burden to prove coverage.

But here, unlike the situation in Gordon and Kelleher, supra, the plaintiffs in this case are the ones who are seeking to prove non-coverage on the grounds that McConnico did not have authority to drive the automobile. In these circumstances, the burden of proof, as is generally the case, should be on the plaintiffs to prove the facts which would establish non-coverage.