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Question:

The insured operates a communications business which includes the setting up and supply of radio networks. They have over 20 transmitting sites throughout NZ, many of these are in high altitude remote areas.

Due to a long-lasting storm event, the solar power to one of the sites was not sufficient to keep the battery charged so the insured arranged for a mobile generator to be delivered to the site. This is quite common following adverse weather. The generator is then used to charge the battery for a period of 24 hrs. at which point the solar panel then takes over again.

The generator was situated on a very remote site. When the insured returned to check the site the generator (weighing approximately 20kgs) and the solar panel had both been stolen.

The generator had been unplugged and stolen and the solar panel which was bolted down had been torn from its mounting.

The insurer considers that the theft of the solar panel is "burglary' whereas the theft of the generator is 'theft'. The insurer believes the solar panel forms part of the 'structure' of the building, whereas the generator does not.

Under the policy a burglary excess is $1,000 and theft is $2,500. Both items were assumed to have been stolen at the same time (one event) and both items fall under the material damage policy of the insured. The insured wants to apply the higher of the two excesses to the claim. 

However, there is noting in the policy wording that stipulates what excess should apply. The only reference to excesses is where there is a claim under 2 or more policies for the same event, in which case the insurer states that it will apply the highest excess applicable to any policy. However, in this claim, the items are being claimed for under the one policy and the policy is silent on the issue of excess.

We argue that the insurer should accept the claim on the lower burglary excess of $1,000 whereas they only wish to settle the claim on a $2,500 excess. 

Thoughts?

Crossley Gates replies:

Assuming the policy does not specially define the words 'theft' and 'burglary', the dictionary meanings will apply.

Theft involves stealing someone else's property. Burglary involves breaking and entering a building to commit a crime such as stealing someone else's property. The threshold for breaking and entering is low - opening a closed window is sufficient.

Therefore, where items are stolen, the key issue in determining whether there was a burglary or a theft is whether the item was stolen from inside a building that required some element of force to enter (to be compared with walking through an already open door).

I am unsure about applying this to your scenario as I don't know if either the generator or the solar panel were in a building (presumably the latter was not). If they were both out in the open, there was no burglary, only the theft of both items.

 



March 2022

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