Federal Court of Justice: Did insurers have to pay during confinement?

Status: 01/26/2022 05:37 am

Does business closure insurance apply in case of closure during a pandemic? The Federal Court of Justice must decide that. As Corona was missing from the clauses, the insurers refused to pay.

By Bernd Wolf, ARD Legal Department

Marco Ceccaroli runs the Bellavista Travemünde restaurant directly on the Baltic Sea coast. During the first coronavirus-related shutdown in the spring of 2020, his restaurant had to close. For a long time.

bern wolf

“It was bad. A sense of panic arose,” says Ceccaroli. There was no protection and it was not clear how to proceed. “There was still no part-time work subsidy, no grants, no bridging assistance. So you didn’t know how to keep paying the costs. That was a threat to your existence in this situation.”

Axa refused the insurance payment

But luckily, Ceccaroli thought, he had business closure insurance. He had always obediently paid for it. And now he wanted lost sales replaced for at least 30 days, that’s what his contract says. But the insurance company, Grupo Axa, refused to pay.

The problem is the formulation of individual insurance, says Ceccaroli. In his case, Corona is of course not explicitly included in the pathogen insurance policy, “because there was no Corona back then. And that was exactly the problem the insurance was referring to.”

Pandemic uninsured according to many insurers

Many insurers refused to pay. Reason: Business closure insurance refers to specific events in the business, for example if the health department closes the restaurant due to salmonella or if the staff of a large kitchen falls ill with norovirus. A national pandemic like Corona, for which the authorities ordered a national lockdown, is neither foreseen nor assured.

The lower courts in Schleswig-Holstein saw it the same way, as did most of the higher regional courts in Germany. Axa has not had to pay so far. The innkeeper even understands this, despite his own disappointment, from the insurance company’s point of view, because “the flood of payments” is, of course, “an extreme rat’s tail.”

very different clauses

It is unclear whether the BGH will make a landmark decision. Because the insurance companies entered into very different contracts. And the terms of the contracts were not always clear. Some of them contain the 1:1 Infection Protection Act notifiable diseases, for which payment would be made. Others made a general reference to the law. But: Sars-Cov-2, ie the Covid 19 virus, was only added by the legislator after the Corona outbreak.

In any case, the General Association of the German Insurance Industry now recommends its members to expressly exclude pandemics in new contracts. The Axa has already done it. However, Ceccaroli stayed with the international insurance group. “They’re all the same there. It doesn’t matter which one you go to,” he says. “I signed that too. I need insurance coverage for my store.”

The verdict of the Federal Court of Justice, the highest German civil court, may fall already in the afternoon.

BGH Hearing: Obligation to pay corona-related business closure insurance

Bernd Wolf, SWR, 25.1.2022 16:35

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