“All risk” hull insurance policy : a recent Italian judgement on the crucial issue of the burden of proof
The Tribunal of Bologna recently ruled on a dispute between the insured party (the owner of a trimaran) and the Insurance Company for the total loss of the yacht due to the hull breaking during navigation, in the context of a sailing competition.
According to the insured party’s argument, the accident was caused by the trimaran’s collision with a semi-submerged object (covered in the policy as an ‘accident of navigation’). The insurer’s position, represented by our Firm, was that the loss was instead caused by the structural failure of the hull (expressly indicated in the policy as a cause of exclusion of coverage) and that, in any event, for the all-risks insurance policy to be operative, it is not sufficient for the insured party to simply prove the total loss, but rather to identify and, above all, demonstrate the specific event that caused it.
The Tribunal accepted the Insurer’s defence and rejected the insured party’s claim, finding – on one hand – that the claimant had not discharged its burden of proof and, on the other hand, that the documentation on file, proved that the total loss was caused by the structural failure of the yacht.
With specific reference to the burden of proof regime, the Judge clarified that the exception of inoperability of the insurance policy re-expand the burden of proof on the insured party and that the latter, in order to prove the constitutive fact, cannot limit to proving only the total loss, but must also give evidence of the specific event (covered in the policy) from which the same arose.
Pietro Mordiglia
pietro.mordiglia@mordiglia.it