This case may be of interest to insurers, because, unfortunately, there was a common situation when, after a fire in a warehouse with insured property, it became obvious to specialists that the goods in the declared amount could not be in the warehouse at the time of the fire.
In recent years, there has been an 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. On May 22, 2015, the Arbitration Court of the Moscow Region examined the case No. A41-45876/2013 on a claim against Rosgosstrakh, LLC, whose interests were represented by lawyers of Pervaya Yuridicheskaya Set, LLC. The essence of the dispute was reduced to the client’s attempt to collect the insurance indemnity amounting to more than 276 million rubles, regarding the alleged loss of the entire scope of the insured inventory as a result of fire in the warehouse. The parties did not contest the fact of fire. Pursuant to the court decision, the claim was rejected.
The dispute arose because specialists, who examined the place of fire, paid attention to the absence of any signs that at the time of fire there were goods in territory of the warehouse, the destruction of which was claimed by the policyholder. The policyholder insisted that these goods were completely destroyed by fire.
Comprehensive judicial fire and technical and trade expertise conducted in the case came to contradictory conclusions. In this regard, the court of the first instance had to give a critical assessment of these findings. At the same time, the court considered that, based on totality of the evidence in the case, including the review to the conclusion of the forensic experts submitted by the defendant, it is possible to recognize certain forensic opinions as untrue, and on the whole to conclude that the plaintiff did not provide evidence of the presence of goods in the warehouse at the time of fire. Due to the lack of evidence of damages from fire, the claim was rejected.
The court of appeal agreed with validity of findings of the court of the first instance and left the decision unchanged. As it happens, the judicial acts did not describe all the arguments of the parties, although they were considered by the courts and, of course, were taken into account when taking a decision. So, the conclusion of a judicial fire and technical expert examination, conducted within the framework of a criminal case initiated on grounds of insurance fraud, was attached to the materials of this case in the court of appeal, at the request of the representatives of Rosgosstrakh, LLC. The conclusion was made by another state forensic expert institution. According to the calculations of experts, in conditions of fire, at least 27 percent of the insured mass of commodities should have been left, which in this case is more than 54 tons. However, the repeated inspections of the fire site made it possible to detect only a few samples of several goods.
Vitaly Ponomarenko, the Director General of Pervaya Yuridicheskaya Set, LLC: “We have always thought that the insurers who reasonably believe that someone acts in bad faith, and even more so fraudulently against them, should not disregard the criminal procedure means of protecting their interests. In this case, objectively, the experts in the criminal case had more opportunities to conduct research, which allowed to make reliable conclusions on the basis of accurate calculations.”
Pursuant to the decision of the Arbitration Court of the Moscow District dated October16, 2015, the judicial acts of the first and appeals instances in the case were left unchanged.25 November 2015