The plaintiff company was insured with the defendant company by virtue of a Fire and Special Perils Property Damage Insurance Policy. The plaintiff company was robbed by unknown individuals between 29 March 2002 and 4 April 2002. Stock and various other items were stolen from a garage where the plaintiff company stored its goods, which were all allegedly covered by the above-mentioned insurance policy.

The plaintiff claimed that:

• the defendant insurance company ignored its claims;

• this court had the jurisdiction and competence to consider this case since the defendant company had shed any responsibility regarding this theft by virtue of a letter dated 28 November 2002. Therefore, this satisfied the policy’s Maltese Jurisdiction Clause and Arbitration and General Conditions Clause which did not permit for the Courts to have jurisdiction in the event that the insurance company did indeed accept responsibility yet disagreed on the quantum.

The plaintiff company therefore requested the court to declare and hold that the theft fell within the terms of the disputed insurance policy, and further, to liquidate the amount due to the plaintiff company on the basis of the claim made and to order payment by the insurance company of the same in their favour.

The defendant company held that the plaintiff company’s claim was unfounded both in fact and in law particularly since the theft in question did not fall within the terms of the policy which contemplated theft however qualified in that it had to result from “violent and forcible entry”.

The court considered that this was an action based on a contract of insurance between the parties. It also considered that the Court of Magistrates had held that this theft was aggravated by means (breaking in) and value (value of stolen goods exceeded Lm100). The court also considered that the defendant company should not have been sued since it was merely an agent of the foreign company.

The plaintiff company based its claim on the following clause found in the policy:

“In consideration of the payment of the premium for this extension to the policy, the Company will, by payment or as option by reinstatement or repair, indemnify the insured against damage if:

a. Any of the property insured described in the part of the Schedule relating to Theft extension;

i. while within the premises shall be lost by damages by theft involving entry into the premises by forcible and violent means ...

b. there shall occur any damage to the premises failing to be borne by the insured consequent upon such theft or any attempt thereat.”

The issue was therefore based on whether the theft had involved entry by forcible and violent means. The defendant company held that there was not enough evidence to show that entry was by virtue of such forcible and violent means. The court heard a series of witnesses including employees of the plaintiff company and the person appointed technical expert by the Court of Magistrates.

The technical expert in fact held that the padlocks securing the garage door where not found on the scene and the thieves must have used pneumatic tools to break such padlocks which tools were capable of not leaving any traces behind. The evidence to show there was indeed a forced break in could have, in his opinion, been lost due to the strong winds at the time of the theft.

The defendant company also presented an affidavit of it’s surveyor who had stated that there was no evidence at the crime scene to determine how the padlocks were removed and how the lock of the garage was opened, which factors, in her opinion, were relevant in the light of the qualification in the policy of entry as being “forcible and violent entry”.

A police inspector involved in the inquiry of the theft held that to his knowledge, the lock was not damaged and was still functional after the theft, hence implying that it could not have been a forced entry. The court stated that to decide whether there was indeed forced and violent entry, it was essential to see the manner in which the door was indeed opened. As seen from the above testimonies, this was no easy task, not even for technical persons. The court highlighted the fact that since this was a civil law issue, it had to be decided on the basis of the evidence available.

The court held that it agreed with the decision of the Court of Magistrates and stated that just because there were no traces left as evidence of a forced entry did not mean that there was indeed no such forced entry. If this were so, then the person insured would not be paid by the insurer simply on the basis of the fact that the thieves were neat and professional. The Court continued that it was unnecessary that the door of the property be broken into savagely to constitute a forced entry. Reference was in fact made to Article 264 of the Criminal Code which defines theft aggravated by means as inter alia, “when it is committed with internal or external breaking, with false keys, or by scaling.” It further defines breaking as “the throwing down, breaking, demolishing, burning, wrenching, twisting, or forcing of any wall, not being a rubble wall enclosing a field, roof, bolt, padlock, door, or other similar contrivances intended to prevent entrance into any dwelling-house or other place or enclosure, or to lock up or secure wares or other articles in boxes, trunks, cupboards, or other receptacles, and the breaking of any box, trunk, or other receptacle even though such breaking may not have taken place on the spot where the theft is committed.”

The court held that the aim of such a qualification in the insurance policy was to exclude any claims arising from negligence of the insured person such as in the event that a theft occurs due to someone forgetting to lock the doors.

The court therefore upheld the plaintiff’s claims and ordered the payment of the alleged loss of e70,232.84 (Lm30,150.96c).