Following a fire, the insurer discovers that the insured was experiencing financial difficulties. No technical cause can be identified and some of the insured’s statements appear to be inconsistent.
Is that sufficient to refuse insurance cover on the ground of intent?
Not necessarily.
An insurer relying on an intentionally caused insured event must prove that intent. It is not sufficient to establish that the insured consciously performed a particular act. The insurer must also prove that the insured voluntarily and consciously intended to cause damage.
A suspicion, a possible motive or a particularly unusual combination of circumstances may contribute to the evidence. None of those elements automatically proves intent.
In brief
- The insurer refusing cover on the ground of intent bears the burden of proof.
- Where doubt remains, the insurer bears the evidential risk.
- The insurer must prove both the insured’s involvement and the intention to cause damage.
- Intent may be proved by all admissible means of evidence.
- A possible motive is an indication, but does not prove that the insured caused the insured event.
- A criminal conviction is not always required, but the civil court must respect the authority of a final criminal judgment.
Who bears the burden of proving intent?
An insurer alleging that it is not required to provide cover because of intent bears, in principle, the burden of proving that allegation.
This follows the general rule of evidence: a party relying on a particular legal consequence must prove the facts or legal acts on which that consequence is based.
The insurer seeks to be released from its obligation to provide cover because the insured allegedly caused the insured event intentionally. The insurer must therefore establish that the conditions of Article 62, first paragraph, of the Belgian Insurance Act are met.
The insurer also bears the evidential risk. Where, after considering all the evidence, the court remains uncertain whether the insured actually intended to cause damage, that uncertainty will in principle operate against the insurer.
For a detailed discussion of the meaning of intent, see our earlier article: When Is an Insured Event Intentionally Caused under Belgian Insurance Law?
What exactly must the insurer prove?
A refusal of cover on the ground of intent requires more than proof of a conscious or dangerous act.
In practice, the insurer must establish at least three elements.
1. The insured performed the act that caused the damage
The insurer must first prove that the insured was personally involved in causing the insured event.
In a case of deliberate arson, for example, it must be shown that the insured started the fire, instructed another person to do so or was otherwise involved as an author, co-author or accomplice.
The fact that the insured could have benefited from the insured event is not sufficient to prove that the insured caused it.
2. The insured intended to cause damage
The insurer must then show that the insured not only acted consciously, but also voluntarily and consciously intended to cause damage through the act or omission.
Proof that the insured knowingly engaged in dangerous conduct is not necessarily sufficient.
A person who knowingly drives through a red light, disregards a safety rule or drives while under the influence may have acted with extreme recklessness. It does not automatically follow that the person also intended to cause an accident or other damage.
The intention to cause damage remains the essential distinction between intent and gross negligence.
3. The intent can be attributed to the insured concerned
Finally, the insurer must establish that the intentional conduct can personally be attributed to the insured against whom cover is refused.
This is particularly important where several persons are insured under the same insurance contract or where a legal entity is held liable for the conduct of a director or employee.
Proof that one insured acted intentionally does not automatically mean that the intent may be raised against every other insured person.
The personal nature of intent will be discussed in a separate article.
What standard of proof applies?
Intent must be proved to a reasonable degree of certainty.
Absolute certainty is not required. Nor must the insurer theoretically exclude every conceivable alternative explanation.
The evidence as a whole must nevertheless allow the court to conclude with sufficient certainty that the insured intentionally caused the insured event.
A mere possibility or probability is not sufficient.
The fact that intent appears to be the most suspicious or obvious explanation does not necessarily mean that the required proof has been provided. If another explanation remains reasonably plausible and is not contradicted by the objective evidence, uncertainty may remain.
Which evidence may be used to prove intent?
Intent is a factual matter and may, in principle, be established by all admissible means of evidence.
The insurer may rely on:
- statements made by the insured;
- witness statements;
- findings made by the police or fire service;
- technical expert evidence;
- CCTV footage;
- telephone or electronic communications;
- emails, text messages or social media messages;
- information contained in criminal proceedings;
- factual presumptions;
- the insured’s conduct before and after the insured event.
The court does not necessarily assess each item in isolation. Several indications that would individually be insufficient may together form convincing evidence.
Conversely, a large number of suspicious circumstances does not automatically amount to conclusive proof. The indications must genuinely relate to the insured’s involvement and intention to cause damage.
Can intent be proved by presumptions?
Yes. Since the insured’s internal intention can rarely be observed directly, proof of intent will often be based partly or entirely on factual presumptions.
The court may infer an intention to cause damage from known and proven facts.
In a fire claim, relevant factors may include:
- the presence of several separate points of origin;
- the use of accelerants;
- the absence of a plausible accidental cause;
- preparatory acts shortly before the fire;
- CCTV footage or location data;
- inconsistent statements made by the insured;
- communications showing an intention to start the fire.
Those elements must carry sufficient weight and be sufficiently consistent to allow the court to establish intent to a reasonable degree of certainty.
A presumption must also be based on concrete and established facts. The insurer cannot build its case on facts that are themselves unproven.
Is a possible motive sufficient?
No.
A motive may explain why someone might have caused the insured event, but it does not prove that the person actually did so.
Possible motives may include:
- financial difficulties;
- a high insured value;
- a conflict with the injured party;
- an imminent eviction or forced sale;
- a wish to dispose of an unprofitable business or damaged asset;
- personal or relationship problems.
Such circumstances may be relevant as part of a broader body of evidence. They do not, by themselves, prove involvement or intent.
A person experiencing financial difficulties has not, for that reason alone, set fire to a home or business. A person involved in a dispute has not, for that reason alone, intentionally caused damage to the other party.
The motive must always be connected to other objective evidence.
What is the significance of inconsistent statements?
Inconsistent or amended statements may undermine the insured’s credibility.
This may be the case where the insured initially denies being present but later admits having been at the location when the insured event occurred. The same applies where the insured’s account is incompatible with the technical findings.
An incorrect, incomplete or amended statement does not, however, automatically prove that the insured intentionally caused the insured event.
The insured may provide an inaccurate statement for other reasons. The insured may be attempting to conceal another error, may fear liability or may have an inaccurate recollection of the events.
The statements must therefore always be considered together with the objective findings.
What role do criminal proceedings play?
A criminal file may contain important evidence, including police reports, interviews, expert reports, CCTV footage and telephone data.
That information may also be used in an insurance dispute, provided that the parties have an opportunity to challenge and discuss the evidence.
A criminal conviction is not always required to establish intent under insurance law. The civil court may examine, on the basis of the evidence submitted to it, whether the conditions of Article 62 of the Belgian Insurance Act are met.
The civil court must, however, respect the authority of a final criminal judgment.
Where a criminal court has necessarily and definitively established a particular fact, the civil court cannot simply reach the opposite conclusion. The precise effect depends on what the criminal court actually and necessarily decided.
What is the effect of a decision not to prosecute?
A decision by the public prosecutor not to prosecute is not a judicial decision.
It does not automatically prevent intent from being established in civil or insurance proceedings.
A criminal file may have been closed because there was insufficient evidence for a prosecution, for reasons of prosecutorial discretion or for another practical reason. The civil court may still assess the available evidence under the applicable civil rules of evidence.
Must the insurer await the outcome of criminal proceedings?
Not necessarily.
The insurer may in principle determine its position on cover on the basis of the information available to it. It must nevertheless act with caution.
Where a criminal investigation is still ongoing and essential facts remain unclear, a final refusal of cover may be premature. The insurer should avoid concluding that intent has been established on the basis of incomplete or one-sided information.
Depending on the circumstances, it may be appropriate to await further information, commission an independent technical investigation or reserve the insurer’s position.
Practical checklist for assessing intent
Before refusing cover on the ground of intent, the insurer should at least examine the following questions:
- Who caused the insured event?
Has the insured been identified as the author, co-author, accomplice or person who instructed another to act? - Which specific act was performed?
Has that act been objectively and sufficiently established? - Did the insured intend to cause damage?
Or has it only been shown that the insured consciously created a danger or risk? - Which damage did the insured intend to cause?
Was that damage connected to the materialisation of an insured risk? - Which objective evidence supports intent?
Are there statements, technical findings, footage, communications or other concrete information? - Are there reasonable alternative explanations?
Are those explanations contradicted by the evidence or do they remain plausible? - Can the intent personally be attributed to the insured concerned?
Or was the intentional act committed by another insured, employee, director or third party?
Conclusion
An insurer refusing cover because an insured event was intentionally caused bears the burden and risk of proof.
The insurer must establish that the insured performed the act causing the damage, voluntarily and consciously intended to cause damage and that the intent can personally be attributed to the insured concerned.
Intent may be proved by all admissible means of evidence. Presumptions, technical findings and information from criminal proceedings may play an important role.
A possible motive, consciously dangerous conduct or an inconsistent statement is not sufficient in itself. The evidence as a whole must allow the court to establish intent to a reasonable degree of certainty.
Where doubt remains as to the intention to cause damage, the insurer bears the evidential risk.
Frequently asked questions
Who must prove that an insured event was intentionally caused?
The insurer relying on intent to refuse cover bears, in principle, the burden and risk of proof.
Can the insurer prove intent by presumptions?
Yes. The presumptions must be based on proven facts and carry sufficient weight and consistency to establish intent to a reasonable degree of certainty.
Are financial difficulties sufficient to prove arson?
No. Financial difficulties may constitute a possible motive, but do not prove that the insured started the fire or intended to cause damage.
Is a criminal conviction required?
No. A civil court may establish intent under insurance law on the basis of other evidence. It must nevertheless respect the authority of a final criminal judgment.
Does a decision not to prosecute prevent intent from being proved?
No. A decision not to prosecute is not a judicial judgment and does not prevent the civil court from independently assessing the available evidence.
