In Jurisprudence, there is a heated debate regarding the proof of theft of the insured item, or rather, the demonstration of the so-called “constituent fact” of the right to insurance indemnity, which underpins the claim for indemnity.
Judgments are often recorded in which the insured party, in order to satisfy the evidentiary burden upon themselves pursuant to Article 2697 of the Italian Civil Code, merely produces their own police report of theft. However, on this topic, our Supreme Court of Cassation [1] has long held a firm position that “...the report (editor's note: in this case it was of robbery) is an ex parte document, and the facts indicated therein cannot be considered certain facts unless filtered by the judge during the investigation; therefore, those facts are, and must be, subject to verification themselves, which cannot be said to have been achieved simply because of a criminal report... (omitted) the general assertion of the criminal investigation judgment that fruitless investigations were carried out by the judicial police into the reported facts is not sufficient to attribute a presumption of truthfulness to facts never ascertained”.
The mere filing of a theft report does not therefore exempt the insured from proving rigorously, firstly, the pre-existence of the insured item in the condition and at the location indicated by the insured, and, secondly, that the theft event occurred. The lower courts express themselves in this regard, stating that “In order to obtain payment of compensation for the theft of a motor vehicle, the insured must prove that the motor vehicle actually existed, was fit for its proper purpose as a means of locomotion and transport, and had appreciable economic value at the time of the alleged theft. In other words, the so-called “pre-existence” of the motor vehicle as a functioning vehicle with appreciable economic value must be proven, in the absence of which proof, the theft is not credible, the mere report filed with the police authority, which consists of a statement from the party interested in receiving compensation, being insufficient to prove the alleged theft” [2].
Similarly, “The fact that the insurance policy, in the case of loss due to theft or robbery of the means of transport on which the goods are loaded, requires the submission of a report, does not exempt the insured from the burden of proving the cause of the loss” [3].
In the absence of proof of the event of “theft”, the monolithic case law of the Court of Cassation on maritime insurance will prevail, according to which: “In the matter of ship insurance, the burden of proof is governed by Article 2697 of the Civil Code, i.e. by the principle that whoever wishes to assert a right in court must prove the facts that constitute its basis (while whoever claims its ineffectiveness must prove the particulars of their exception), with the consequence that the insured who wishes to assert their right to compensation must prove that the risk covered by the guarantee has occurred and that it has caused the damage for which they seek compensation.” [4]
This principle, widely shared in legal doctrine [5], is valid in every branch of insurance. If a specific risk is insured, the “constituent fact”, which consists of proof of the event as defined in the contract, must be proven by the insured [6]. Conversely, if the risk is identified negatively through exceptions, it means that the circumstances preventing the claim for indemnity must be proven by the party liable, i.e. the insurer [7].
On the fundamental theme of defining insured risk, it is worth remembering that the identification of risk can be made with positive indications or with negative indications and sometimes with positive and negative indications [8] as usually in policies both the circumstances in which the event must occur (so-called assumed risks) and those whose occurrence excludes coverage (so-called excluded risks) are simultaneously indicated [9].
[1] See judgment no. 10262 of 7 September 1992 (published in Dir. Mar. 1993, 698).
[2] Milan Court of Appeal, 5 November 2004, the summary of which is published in Giustizia a Milano 2004, 75.
[3] Court of Milan, 9 January 1996. Guardamiglio Carni v. Insurance Co. North America, published in Dir. maritt. 1998, 1128.
Cassation on 10 May 1995, no. 5123 in Assicurazioni 1997, II, 2 Giust. civ. Mass. 1995, 980; in Giust. civ. 1995, I, 2033.
[5] A. DONATI, Trattato del diritto delle assicurazioni private, II, Milan, 1954, 431; cfr., substantially in the same sense, also G. FANELLI, Le assicurazioni, in Tratt. dir. civ. e comm., directed by A. CICU and F. MESSINEO, Milan, 1980, 134: the insured must absolutely prove “that the event (the damage to the financial interest) qualified by the cause indicated in the contract (fire, hail, theft, etc.) has occurred”; G. VOLPE PUTZOLU, Le assicurazioni. Produzione e distribuzione, Bologna, 1992, 120; but v., in a partially different sense, G. SCALFI, I contratti di assicurazione. L’assicurazione danni, Turin, 1991, 228-229: the insured must prove the claim, i.e., that the event occurred and that it caused damage, in accordance with the principle of art. 2697, paragraph 1, of the Italian Civil Code; On the division of the burden of proof between the insured and the insurer regarding damage insurance, v., in general, also G. CASTELLANO S. SCARLATELLA, Le assicurazioni private, in Giur. sist. civ. comm., founded by W. BIGIAVI, 2nd ed., Turin, 1981, 359 ff.
[6] R. CALVO, The burden of proof, in Contr. impr., 1996, 1022.
[7] E. FOGLIANI, Burden of proof and ship's seaworthiness in hull insurance, in Nuova giur. civ. comm., 1996, I, 432.
[8] A. DONATI, Trattato, cit., II, 144 ff., particularly 147-147.
[9] G. FANELLI, Le assicurazioni (Insurance), op. cit., pp. 104 et seq., 111 et seq.; A. DE GREGORIO – G. FANELLI, Diritto delle assicurazioni (Insurance Law), Vol. II, Il contratto di assicurazione (The Insurance Contract), Milan, 1987, pp. 82 et seq.; G. SCALFI, I contratti di assicurazione (Insurance Contracts), op. cit., pp. 70 et seq.; N. GASPERONI, Le assicurazioni (Insurance), in Tratt. dir. civ. (Treatise on Civil Law), edited by G. GROSSO AND F. SANTORO-PASSARELLI, Milan, 1966, pp. 63-64.
