Why thieves can't get insurance

In my last post I discussed Genzyme Corp. v. Fed. Ins. Co., 2009 WL 3101025 (D. Mass.).

In that decision Judge Gertner included an interesting discussion of a fundamental tenet of insurance law: a "loss" does not include restoration of an ill-gotten gain.

A thief should not be able to claim the return of stolen property as an insurable loss. Similarly, an individual who breaches her contract and then is forced to pay damages should not be able to seek indemnification under an insurance policy. [This is an overstatement; there are circumstances when insurance covers damages flowing from a breach of contract.] If I pay only $100 for an item for which I promised to pay $200, and I am later ordered by a court to pay the additional $100, I should not be able to claim the additional $100 as an insurable loss. Had I paid the full $200 due up front, then clearly no part of the $200 would constitute loss covered by insurance. The dilatory nature of my obligatory payment should not transform it into an insurable event.