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A Taking Is Not Always a Theft

By September 29, 2015October 25th, 2018Insurance Blog, Melody Mosley

Under the “claim of right” theory, there is no theft when personal property is taken by someone who has a good faith belief that they are entitled to take the property. This rule applies even when the person taking the item is mistaken. The reasoning behind the rule is clear: a good faith belief by someone that they own or have a right to an item negates the felonious intent  necessary for the conviction of theft or robbery.

Under the right set of facts, the claim of right theory is applicable to named peril insurance policies as well as criminal matters. In Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536, the police taking of marijuana plants was not a theft because there was no showing of criminal intent.  There are some restrictions on the claim of right defense. For example, the claim of right defense is not permitted when the claimed right to the property is rooted in a ‘notoriously illegal’ transaction. Further, the claim of right theory does not apply to robberies perpetrated to satisfy a debt as opposed to forcible takings intended to recover specific personal property in which the person has a bona fide claim of ownership or title. Additionally, the rule is limited to the person taking his or her property rather than someone acting on their behalf. Something to think about in insurance claims when the person taking the property has a good faith ownership belief.