Providing evidence in the event of burglary: According to the simplified rules of evidence developed by case law, it is sufficient to provide evidence of an external picture, i.e. a minimum of facts that indicate an insured event with sufficient certainty.
The plaintiff is claiming payment from the defendant under a household contents insurance policy due to an alleged burglary.
On December 1, 2004, the plaintiff took out a combined household contents insurance policy with the defendant under contract no. 90.663.763.4 for the contents of the second-floor apartment T-Weg in J, subject to the VHB 2005. The contract was brokered by the insurance agency P R in O-X.
On 16.09.2008, the plaintiff’s father-in-law, Mr. L, noticed that all the cupboards in the living room of the aforementioned apartment were open and the contents of the cupboards were partially scattered on the floor.
The plaintiff and her husband had already been on a four-week vacation in Egypt since 11.09.2008. They had instructed Mr. L to “look after things” in the apartment during this time.
Mr. L immediately informed the police, who were unable to find any signs of forced entry on the door lock. On September 22, 2008, the police contacted the plaintiff’s husband by telephone. He said that there were a total of five keys for the living area. Three of them were hanging on the key board, the fourth was in his father’s possession and he had the fifth with him. However, the police discovered that there were only two keys on the key board in the apartment, not three. In her notice of claim dated October 20, 2008, the plaintiff stated that the third key had been with the estate agent H O in N at the time of the incident in question. In a conversation with the defendant’s adjuster U, the plaintiff’s husband again stated that none of the keys were missing at the time of the incident.
On October 20, 2008, the plaintiff filed a burglary/robbery damage report together with a list of stolen items, which included a computer monitor purchased on October 23, 2001 for € 3,297.00 and a folding knife with a hunting motif. In his court hearing on January 19, 2009, the plaintiff’s husband stated that the computer monitor had not been stolen after all, as the plaintiff had already given it to her daughter before September 16, 2008. He could also not rule out the possibility that he had already given the plaintiff’s daughter the folding knife with a hunting motif before this date. These circumstances were not communicated to the defendant.
The defendant had the apartment inspected by the insurance experts U & Partner, who prepared an inspection report on December 18, 2008. In this report, the new value damage was estimated at € 18,000.00, which the defendant informed the plaintiff of in a letter dated December 19, 2008. In the same letter – as well as in a letter dated August 7, 2009 – the defendant refused to settle the claim.
In addition, the defendant had the cylinder lock and the five original keys examined by the publicly appointed and sworn expert for mechanical security devices and forensic evidence, O H. He found no traces of foreign tools on the cylinder lock. In his expert opinion dated December 2, 2008, he found no traces of foreign tools on the lock cylinder. According to his findings, no copies of the original keys had been made. According to information from the key manufacturer L, no repeat orders had been placed, so that the expert assumed that the locking cylinder had been operated with matching keys.
A preliminary investigation against the plaintiff’s daughter, N L, by the public prosecutor’s office N2, case no.: 83 Js #####/####, was discontinued due to a lack of suspicion. The plaintiff’s daughter originally had a key to the apartment, which she had to return when she moved out of the apartment. During a search of her apartment, which she shared with two other roommates, the folding knife with a hunting motif originally reported stolen by the plaintiff and a computer and monitor were found according to the search report of the police B of October 15, 2008. The plaintiff herself does not rule out the possibility that her daughter made a duplicate key without authorization in order to gain access to her apartment. In addition, the plaintiff’s daughter had visited her grandfather in the period between September 11, 2008 and September 16, 2008 and had also visited the plaintiff’s apartment with him to look for something in the basement. The plaintiff’s daughter had already broken into the plaintiff’s apartment once before and had stolen € 100.00 in cash.
Following a tip-off from the plaintiff, the police discovered on February 13, 2009 that the peephole on the front door could easily be dismantled to create a circular opening through which a wire could be used to reach the key board hanging opposite the door. The plaintiff’s neighbor, Mr. G, noticed the same “damage” to his peephole in September 2008.
The plaintiff claims that the fifth key was with the estate agent H R at the time the theft was discovered. Her daughter had in fact not had a key to the apartment since around May 2008. The computer found at her daughter’s home was a birthday present from 2007. The total value of the stolen items amounted to €18,000.00.
The plaintiff requests that the defendant be ordered to pay her € 18,000.00 plus 5% interest above the prime rate since the pendency of the action.
The defendant requests that the action be dismissed.
He claims that the perpetrator gained access to the
apartment with a suitable key, whereby the plaintiff’s daughter is probably the perpetrator.
The computer found in the plaintiff’s daughter’s apartment is the computer reported stolen by the plaintiff. The plaintiff’s daughter had admitted that she had entered the apartment during the plaintiff’s vacation and on this occasion had taken the keys to both vehicles of the plaintiff and her husband and had driven the vehicles. In the process, she had received a ticket for parking one of the two vehicles in violation of traffic regulations on September 14, 2008, which she had left inside the vehicle.
With regard to the parties’ further submissions, reference is made to the content of the exchanged written submissions and annexes.
Reasons for the decision
The admissible action is unfounded.
I. The Regional Court I has jurisdiction pursuant to Art. 1 (2) EGVVG in conjunction with. § Section 48 (1) VVG old version. The insurance contract was concluded with the insurance agency P T in O- X on 01.12.2004 – i.e. before 23.11.2007 – and the possible insured event occurred between 13 and 16.9.2008 – i.e. before 31.12.2008.
II. the plaintiff has no claim against the defendant for payment of € 18,000.00 under § 1 VVG in the version applicable until 23.11.2007 in conjunction with §§ 3.5 vhb 2005, which is applicable pursuant to Art. 1 para. 2 EGVVG. §§ 3, 5 VHB 2005.
An insurance relationship has existed between the parties since 01.12.2004.
Gem. § 3 No. 1 lit. b) VHB 2005 covers, among other things, items that are lost as a result of burglary. Gem. § 5 No. 1 lit. a) VHB 2005 burglary is, among other things, theft if someone takes property after breaking into a room of a building, entering it or using false keys. The plaintiff, who has the burden of presentation and proof, has not provided evidence of such a burglary.
According to the simplified rules of evidence developed by case law, it is sufficient to prove an outward appearance, i.e. a minimum of facts that allow the conclusion of an insured event with sufficient certainty, unless the insurer proves facts that make the assumption of a pretense or an uninsured act of commission predominantly probable. The external appearance must make both the theft and the qualified intrusion into the home probable, unless the theft of a duplicate key comes into consideration.
The policyholder must prove these facts in full (see BGH, judgment of 18.10.2006, ref.: IV ZR 130/05, cited in juris para. 14 and 15; T-Holsteinisches OLG, judgment of 04.03.2010, ref.: 16 U 44/ 09, cited in juris para. 21, Prölss/Martin-Knappmann, VVG, § 5 VHB 2000 para. 3). In particular, proof of an insured burglary is not provided if there are no traces on windows and apartment entrance doors that can explain a successful burglary and it cannot be clarified where the original keys were located at the alleged time of the crime (see OLG I2 judgment of 28.04.1999, ref.: 20 U 236/98, cited in juris para. 8).
Accordingly, in the present case a theft can only be affirmed based on the external appearance. According to the photos attached to the forensic report of September 22, 2008, cupboards in the apartment were rummaged through, drawers were opened and objects were scattered on the floor.
However, there is no qualified intrusion into the home based on the external appearance:
There were no signs of burglary and/or forced entry on the front door.
There is also no evidence of an intrusion into the apartment through a window.
According to the expert opinion obtained by the defendant from the expert for mechanical security devices and forensic evidence O H dated December 2, 2008, no traces of foreign tools could be found on the lock cylinder, so that a mechanical impact on the door lock can be ruled out. The plaintiff has not challenged the findings of the defendant’s expert.
The use of a false key can also be ruled out. According to the findings in the expert opinion dated December 2, 2008, no copies of the five original keys were made. According to the key manufacturer L, there were also no repeat orders. This also rules out the plaintiff’s mere assumption that her daughter or persons close to her would have committed the burglary with the help of a duplicate key. The plaintiff has thus not presented and proven any concrete circumstances which, according to life experience, would lead to the conclusion with sufficient probability that a duplicate key was used (cf. in this respect Higher Regional Court of Cologne, decision of March 7, 2005, file no.: 9 U 197/04, cited in juris para. 5).
An intrusion into the apartment by obtaining a key from the key board with the help of a wire through the peephole is also ruled out. It is true that the police established on February 13, 2009, following a corresponding tip from the plaintiff, that such an intrusion is possible. However, the plaintiff did not prove that the perpetrators in the specific case also broke in in this way. The plaintiff’s husband only pointed out this possible method of intrusion approximately five months after the incident. However, the decisive factor is that the aforementioned facilitation of evidence in favor of the plaintiff does not apply, as there are no objective traces that would allow a conclusion to be drawn that such an act was committed. Even if the policyholder is able to prove that it is possible to break in “without a trace”, this does not prove that the perpetrators broke in in the specific case (see OLG Cologne, decision of 07.03.2005, Ref.: 9 U 197/04; quoted according to juris headnote 2.). Neighbor G’s attestation that the same “damage” was found on his peephole therefore does not prove that the plaintiff was broken into in this way.
In contrast, the commission of a theft by means of an original key by the daughter or persons close to her appears to be predominantly probable. This is because the plaintiff’s daughter had already entered the apartment without authorization once before the incident in question and had stolen €100.00. In addition, the plaintiff’s daughter was in the apartment with the plaintiff’s father-in-law between September 11 and 16, 2008 to look for something in the basement of the apartment. During the same period, a vehicle belonging to the plaintiff and her husband was also moved. In this regard, the roommate N N1 stated in his interrogation of 21.10.2008 in the investigation file of the public prosecutor’s office N2, file no.: 83 Js #####/####, which was available for information and evidence purposes and which was the subject of the oral hearing on 29.09.2010, that the plaintiff’s car had been used for a trip to B during her vacation. According to the search report of October 15, 2008, the folding knife with a hunting motif initially reported stolen by the plaintiff was found in the daughter’s apartment, as was a computer. It was only during his hearing before the court on January 19, 2009 that the plaintiff’s husband admitted that he had possibly given the knife to the plaintiff’s daughter as a gift and that it could not be ruled out that the plaintiff had given the computer to her daughter, whereas, according to the note of October 14, 2008, he had still stated to the police that he had never given or left the knife to the plaintiff’s daughter. In addition, according to the file note of August 26, 2009, a gas pistol was also found in the plaintiff’s daughter’s apartment, which is also on the list of stolen items. Finally, the information on the whereabouts of the keys is contradictory and their whereabouts are therefore unclear: On September 22, 2009, the plaintiff’s husband told the police that there were 3 keys on the key board at the time of the incident in question. However, the police found that there were only two keys on the key board. When the lock cylinder was handed over to the defendant for examination by the expert U, all five original keys were back. In the plaintiff’s notice of loss dated October 20, 2008, she stated that there were only two keys in the apartment, as the third was with the estate agent H R.
III. the decision on costs is based on Section 91 ZPO. The decision on provisional enforceability is based on Section 709 ZPO.
(Regional Court Hagen, 29.9.2010, Ref. 2 O 10/10)