In recent years, there has been a sharp increase in the number of disputes regarding the losses caused by loss or damage of goods in circulation claimed by customers, which, as a rule, were pledged to the bank.
Description: Recently, a case interesting from the point of view of judicial practice was considered on a claim against Soglasie insurance company, whose interests were represented by lawyers of Pervaya Yuridicheskaya Set, CJSC. The essence of the dispute was reduced to an attempt of the insurer’s client to recover the insurance indemnity in the amount of more than 380 million rubles due to the loss of the insured property pledged as a commodity stock in the warehouse as a result of fire. In this case, the parties did not contest the fact of fire and damage to goods.
The arbitration court of the first instance rejected the claim. Appeals and cassational instances agreed with some reservations, findings of the court and legality of the decision.
At the same time, important findings were made in judicial decisions on this case, which are important in considering other similar disputes. The first one concerns the proof of occurrence of an insured event. As noted above, in this case the fire did take place and a criminal case was opened on the fact of fire. However, under the insurance contract, fire shall be considered an insured event only for some reasons. Several comprehensive examinations conducted both within the framework of the investigation of the criminal case and in the arbitration process did not lead to a single conclusion as to the cause of fire. More precisely, the experts divided into two groups, and their conclusions were mutually exclusive. Considering this fact and proceeding from the assumption that the burden of proving the occurrence of the insured event is on the plaintiff, the court came to conclusion that the reason of fire was not established, and therefore the fact of the insured event cannot be established.
The second important conclusion concerns the proof of the amount of loss from the insured event. In the result of presented irrelevant evidence (basically, this refers to the consignment notes specifying other addresses than the burned warehouse) and the failure to provide the warehouse accounting documents, the plaintiff created a situation where became impossible to objectively establish the quantity of goods in the warehouse at the time of fire and its cost. Courts of all instances considered this circumstance sufficient to reject the claim.
Apart from the above, the arbitration courts concluded that assignment of claim, made by the policyholder after application for the insurance indemnity payment, was unlawful. In accordance with Article 956 of the Civil Code of the Russian Federation, the policyholder shall have the right to replace the beneficiary, named in the insurance contract by another person, having notified the insurer in writing. Having replaced the beneficiary and having presented to the insurer a claim for insurance indemnity payment, the plaintiff excluded the possibility of replacing the person entitled to claim the insurance indemnity payment under the insurance contract. The provisions of Article 382 of the Civil Code of the Russian Federation establishing the possibility of assignment of creditor’s on the basis of an obligation to another person under transaction, can only be applied in this case in conjunction with the provisions of Articles 388 and 956 of the Code. This claim follows from the insurance contract, and the law contains restrictions on the assignment of right in insurance contracts in the form of prohibition of transfer of beneficiary’s rights after a claim for insurance indemnity payment. Thus, the assignment agreement does not meet the requirements of Articles 388 and 956 of the Civil Code of the Russian Federation.
Moreover, taking into account the circumstances of the case, the court of cassation considered the actions of the plaintiff as the abuse of right in violation of Article 10 of the Code.
For more details on the judicial acts on the specified case, see: http://kad.arbitr.ru/Card/59811db8-3188-45fa-b4a1-d6cd80055d2823 May 2013