Karlsruhe As a rule, restaurateurs are not entitled to any compensation from the business closure insurance as a result of the officially ordered closure of restaurants and hotels in the corona pandemic. The Federal Court of Justice (BGH) decided on Wednesday (Az. IV ZR 144/21).
Presiding Judge Barbara Mayen said at the hearing that most insurance terms contain extensive lists of diseases and pathogens covered by the policy. The corona virus is not mentioned there.
In the proceedings, a restaurateur from Travemünde wanted to clarify whether he was entitled to claims from a business closure policy from the insurer Axa due to an officially ordered closure of his restaurant in the first Corona lockdown. During this time he could only offer a delivery service and had significantly less income.
In the course of the measures to contain the corona virus, there had always been disputes between restaurateurs and insurers. For the first time, one of these cases has reached the Federal Court of Justice. Therefore, both sides are hoping for clues for other similar cases. Around 160 proceedings are now pending in Karlsruhe – but some of these involve other clauses.
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Insurance conditions were often not formulated clearly
Basically, the business closure insurance is intended to pay compensation if a business has to close because, for example, salmonella in the ice cream parlor, noroviruses in hotel employees or coli bacteria in the butcher’s shop occur.
In the corona pandemic, however, numerous other questions arose, to which the sometimes very differently worded insurance conditions did not provide a clear answer.
While the cases mentioned above refer to specific dangers in the respective company, it was disputed whether a closure by general decree in a pandemic could also be covered by insurance cover. Some lawyers believed that such preventive measures could definitely trigger an insured event.
Insurers who refused payments, however, partly cited the fact that their insurance conditions listed specific diseases, but not Covid-19. Others referred to the Infection Protection Act, which did not include the coronavirus when the pandemic broke out. Some also questioned whether it was a business closure at all if out-of-home service was still possible.
Courts had often ruled in favor of the insurers
In the hearing before the Federal Court of Justice, the parties involved primarily referred to the diseases mentioned in the insurance conditions. The plaintiff’s lawyer emphasized that the insurance conditions had already been formulated in 2008. Since then, a number of other diseases have been included in the Infection Protection Act in addition to Covid-19, so policyholders have had to assume that a list of diseases contained in the insurance conditions will continue to develop dynamically.
The lawyer for the insurance company replied that lists were basically final. The annual insurance premiums alone in the low three-digit to low four-digit range show that the insurance cover only relates to the diseases mentioned and does not protect against pandemics.
So far, the courts have often sided with the insurers. The General Association of the German Insurance Industry (GDV) knows of 470 first-instance lawsuits, of which almost 90 percent were decided in favor of the insurer. Around 95 percent of 133 appeal procedures ended for each insurer.
The Lübeck Regional Court also dismissed the complaint brought by the restaurateur from Schleswig-Holstein, and the Schleswig-Holstein Higher Regional Court rejected the appeal.
Some insurers, meanwhile, have reached an agreement with their customers without a court dispute over the past two years – either voluntarily or to avoid a potentially unfavorable judgment.
New model conditions are intended to prevent disputes in the future
For the industry, business closure insurance is actually a niche product: According to the GDV, only a small proportion, around 73,000, of the 3.5 million companies in Germany had taken out such a policy at the beginning of the corona pandemic. The contribution volume is around 26 million euros per year.
According to a GDV spokesman, it can be estimated from figures on general association statistics that around one billion euros have been paid for insured damage from company closure policies in the last two years. The services flowed accordingly not only in gastronomy and hotels, but also to the food industry and homes.
In order to prevent disputes in the future, the GDV published non-binding model conditions for business closure insurance in December 2020. It is now clearly formulated there that there is no insurance if companies are closed across the board by general decree.
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