Although several facets of the instant claim are in controversy, an essential element of the instant dispute is whether the B&B Plumber, Mr. Pugh, actually operated the backhoe as alleged on the dates in question. The earliest stages of the handling of this claim on the property give the distinct impression that Mr. Pugh did. However, the response of the highest designated officer very clearly countered that impression. According to the response, an examination of records revealed that Mr. Pugh had not performed the disputed backhoe work. Thereafter, neither party provided any actual evidence to resolve the question one way or the other.

This leads to the question of which party had the burden of proof regarding the missing fact. Generally speaking, when the existence or non-existence of an essential fact is in issue, as it is here, the burden of proof must be shouldered by the party asserting the affirmative aspect of the fact (e.g., that Mr. Pugh did perform the work) rather than the party asserting the negative aspect (e.g., that Mr. Pugh did not perform the work). The instant record provides no proper basis for departing from that evidentiary doctrine.

Given the lack of evidence to determine the essential element, we must conclude that the Organization has failed to satisfy its burden of proof.

AWARD