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. However, the average policyholder will consider the lists to be exhaustive.
In the specific 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 hoped for clues for other similar cases. The judgment now brings legal certainty for contracts with identical clauses, said Jörg Asmussen, general manager of the insurance association GDV. 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 different 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.
Unlike the court of appeal, the BGH emphasized that the pathogen for the occurrence of the insured event did not necessarily have to occur in the company. Mark Wilhelm, specialist lawyer for insurance law, therefore still sees opportunities for some policyholders: “For those who had dynamic clauses in the contracts, it is now clear that a claim to the insurance benefit can exist.”
However, as in the current case, some insurers who refused payments referred to 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 BGH, the parties involved discussed above all the list of illnesses that was contained in the insurance conditions of the restaurateur from Travemünde. The plaintiff’s lawyer emphasized that the 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 the list of insured diseases 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. An Axa spokesman also welcomed the decision of the Federal Court of Justice that “the corona virus was not insured in this specific case and thus also in cases with the same conditions”.
So far, the courts have often sided with the insurers. The 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
Business closure insurance is a niche product for the industry: According to the GDV, only a small proportion of the 3.5 million companies in Germany, around 73,000, 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 GDV estimates, around one billion euros have been paid for insured damage from business closure policies in the last two years. The benefits flowed to gastronomy, hotels, the food industry and homes.
In order to prevent disputes in the future, the GDV published non-binding model conditions for business closure policies 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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