2011 QCCQ 2394, 2011 QCCQ 2394

Abicidan c. Primmum, compagnie d'assurances 2011 QCCQ 2394 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115115-091 DATE: March 15, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ SHAY ABICIDAN [...] Montréal Québec […] Plaintiff v.

PRIMMUM COMPAGNIE D’ASSURANCE 50, Place Crémazie, 12 e étage Montréal Québec H2P 1B6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Shay Abicidan is claiming the sum of $6,055 from Primmum compagnie d'assurance, for failing to compensate him following a theft. Primmum offered a nominal amount, invoking that the evidence presented does not establish the value of the loss. The evidence: [ 2 ] On February 19, 2007, Mr. Abicidan's car was the object of theft and vandalism.

His DVD player was damaged and he alleges that 400 CD's were stolen from his car, which was parked in the common area of his condominium building. The CD's were bought at various times, ranging from 5 to 15 years before the theft. [ 3 ] Mr. Abicidan filed a claim on February 20, 2007.

He is seeking compensation of $5, 625$ for 375 CD's at $15 each, one DVD player evaluated at $200 and $75 for the cases for the CD's, plus court costs. [ 4 ] Since he was unable to provide receipts of his purchases, the boxes in which the CD's were sold or an exact list of the 400 CD's that were taken, Primmum offered him only a nominal amount. [ 5 ] Primmum pointed to the fact that Mr. Abicidan had suffered a loss of CD's the previous year and had made a claim at that time.

In addition, it maintained that many CD's were copies and not the originals. [ 6 ] Primmum was prepared to pay $1 for a copy and $12 for a CD. Mr. Abicidan is covered for replacement value. However, where an item is not replaced, the Primmum pays the depreciated value of the object stolen. Analysis: [ 7 ] An insurance contract is governed by the rules of good faith. The insured must establish his right to the claim he is making.

Specifically, he must prove a valid contract with the insurer, the occurrence of a loss covered by the contract and the extent of damages resulting from the loss [1] : « Le fardeau de preuve de la demanderesse ( art. 2893 C.c.Q. ) se limite à établir trois choses: un contrat valide avec l'assureur, survenance d'un sinistre couvert par ledit contrat et étendue des dommages découlant du sinistre. » [ 8 ] In order to be compensated, the insured must establish his loss. The claim cannot be made with the intent of enriching the

claimant. The purpose of compensation is to repair the prejudice suffered. [ 9 ] The insurer must then prove the facts that justify an exclusion, false declarations of the insured or reticence on his part. [ 10 ] In the present case, Defendant concluded an insurance contract with Mr. Abicidan. In virtue of his contract, he is covered for theft. Compensation consists of the replacement value of the stolen goods, unless the goods are not replaced, in which case, compensation is based on their value, at the time of theft. [ 11 ] Mr.

Abicidan's car was not the only one in the building's parking space that was vandalized and where objects were stolen. The fact that he had suffered a loss of CD's the year before does not mean that the theft is fictitious. [ 12 ] In 2006, the theft of CD's from Mr. Abicidan's car occurred in a parking lot in a shopping centre. Mr. Abicidan became aware of a problem when the alarm of his car went off. The circumstances are completely different in the present instance and the Court has no reason to doubt that the theft took place. [ 13 ] Mr.

Abicidan testified as to his love for music and having previously done some work as a DJ. He has been collecting CD's as well as vinyl records for years and had a considerable collection. He claimed he kept two CD containers in his car, each one holding 200 CD's. [ 14 ] Primmum accepts to pay the depreciated value of the CD's. Since Mr. Abicidan failed to produce receipts, it was prepared to pay $12 per original CD, estimated to number 59 and $1 for the remaining 341 CD's. [ 15 ] Mr. Abicidan has no receipts for new CD's since he did not replace the ones stolen.

As for evidence of the CD's that were stolen, he points to the fact that it is unlikely that anyone would keep receipts for such items as CD's, particularly after 5 years or more. He attempted to produce a list of the items taken, admitting that it was impossible to remember each and every CD he had in his car. In addition, he had a number of doubles in his list. [ 16 ] The Court fails to understand the need for Plaintiff to keep so many CD's in his vehicle, as he alleges he kept, considering what amount of music can be accessed by an ipod.

Moreover, Plaintiff has not provided a valid reason for keeping as many CD's in his car, as he contends. [ 17 ] While the Court is of the view that the CD's were stolen, it is not convinced as to the number of original CD's claimed or the value of each. [ 18 ] The Court must determine the amount of the award, which, in these circumstances, is necessarily a discretionary sum [2] . In the absence of any accurate evaluation presented by Plaintiff, the Court adopts, as the best evidence, Defendant's assessment of the loss. [ 19 ] Defendant had evaluated the loss at $1,049.

Plaintiff's DVD player and cases were also stolen. In consideration of the foregoing and the cost of replacing the estimated number CD's taken and accessories, the Court grants as compensation the sum of $1,324. [19] FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendant, Primmum compagnie d'assurance, to pay Plaintiff, Shay Abicidan, the sum of $1,324, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the institution of the action plus judicial fees of $155. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 24, 2011