A judgement issued by the Court of Udine on 23 January 2017 rejected a refund request of the indemnity paid to the insured. The request was filed by an insurer against a carrier – represented by Alberto Pasino and Federica Fantuzzi – who claimed to have suffered the theft of goods that were stored at one of its warehouses.
However, the investigation showed that the thieves had broken in through one of the warehouse emergency doors and through the entrance gate, and that the theft had been perpetrated in spite of the adoption of intense security measures by the carrier, consisting in physical and electronic protection (the latter, in particular, consisting in anti-theft devices and video surveillance) and in the use of a private security service.
It also appeared that the warehouse belonged to another trucking company and that only a part of it – the one where the goods which were then stolen were stored – was at the carrier’s disposal, and that the alarm system was normally activated by the owner of the warehouse.
The Court rejected the claim for compensation, granting two pleas filed by the carrier.
The first one consisted in the lack of evidence on the insurer’s side of having fully subrogated to the rights of the person entitled to receive the insurance indemnity. Since it was an insurance on behalf of the interested party taken out by the seller-shipper, the insurance should have indemnified those harmed by the theft, ie the consignees of the goods, who had become owners of the goods upon delivery to the carrier and who had to bear the risk of the loss of the goods, in accordance with art. 1510 paragraph 2 of the Italian civil code. Since instead the insurer had indemnified the insured also for the value of part of the goods destined to other companies (real beneficiaries of the insurance contract), it could not have exercised the action of subrogation with respect to the right to compensation payable to them.
Since the goods were stolen from a warehouse that was adequately guarded and monitored, and its physical protections were breached only through violence, the second plea consisted in the fact that the carrier had to be exonerated from the presumption of liability under art. 1693 of the Italian civil code, because the mentioned event was a consequence of unforeseeable circumstances. The Court indeed acknowledged the fact that the carrier had taken all necessary precautions to avoid the exposure of the transported goods to the risk of being stolen, having the carrier stored the goods in a guarded warehouse, equipped with anti-theft alarms and guarded by private security.
The fact that even after the investigation the doubt remained on whether the alarm system had been enabled during the hours when the theft was being perpetrated, did not lead the judge to reach a different conclusion. According to the Court of Udine, in fact, any possible failure to activate the alarm system by the staff of the owner of the warehouse is outside the sphere of control of the carrier and thus it also constitutes unforeseeable circumstances, breaking the causal link between the conduct of the haulier ‒whose duty of care could not go beyond the verification of the presence of the necessary precautions taken by the owner of the warehouse‒ and the harmful event.
This decision is important for two reasons. The first one is that it bears witness to the frequent distress faced by operators in the insurance market when managing the aspects relating to the entitlement to indemnity in case of insurance taken out on behalf of the interested party. The second one is that in the event of theft of the goods entrusted to them, the carriers who have taken all necessary precautions to avoid exposure of the transported goods can rely not only on the limitation under art. 1696 of the Italian civil code, but also on the exemption from liability for unforeseeable circumstances.
(Trieste Office – Alberto Pasino – 0039 (0)40 7600281)
