03.02.2022 | KPMG Law Insights

Generally, no duty to indemnify a business closure insurance policy in the COVID 19 pandemic.

In our client information from January 2022, we already pointed out that the Federal Court of Justice (BGH) ruled in its decision of January 12, 2022 (XII ZR 8/21) regarding the claim for rent adjustment in the event of an official closure order in connection with the COVID 19 pandemic that it must also be taken into account whether the tenant has received benefits from a business insurance policy with an obligation to pay. Now, on January 26, 2022 (IV ZR 144/21), the Federal Court of Justice (BGH) ruled that a business closure insurance policy taken out by the tenant is regularly not liable for damages in the event of an official closure of a restaurant.

Like the previous instances, the BGH denied that the tenant could assert claims against the business closure insurance on the basis of the agreed insurance conditions, since the insurance conditions contained an exhaustive catalog of diseases or pathogens that did not include the disease COVID-19 or the pathogen SARS-CoV-2. Tenants should therefore review their business closure insurance policies and the terms and conditions that go with them to see if they also contain a conclusive disease and pathogen catalog.

The plaintiff holds a so-called business closure insurance policy with the defendant insurer. He seeks a declaratory judgment that the insurer is obligated to pay him compensation under this insurance policy due to the closure of his restaurant. The insurance contract is based on the “Supplementary Conditions for the Insurance of Establishments against Losses due to Official Orders under the Infection Protection Act (Closure of Establishments) – 2008 (ZBSV 08)”. According to § 3 No. 1 letter a ZBSV 08, the insurer shall compensate the policyholder for the loss of earnings up to a liability period of 30 days in the event of a conditional closure of the business.

Section 2(2)(a) and (b) of ZBSV 08 do not list coronavirus disease-2019 (COVID-19) or coronavirus (SARS-CoV and SARS-CoV-2). The Schleswig-Holstein state government ordered the 18 March 2020 on measures to combat the spread of the novel coronavirus SARS-CoV-2 in Schleswig-Holstein (SARS-CoV-2 Control Ordinance) of 17 March 2020, the state regulation on measures to combat the spread of the novel coronavirus SARS-CoV-2 in Schleswig-Holstein (SARS-CoV-2 Control Ordinance) of 17 March 2020 ordered, among other things, the closure of all catering establishments, although services in the context of an off-premises sale were permitted under certain conditions. The plaintiff then closed his restaurant and offered a delivery service.

Decision-making principles
Despite its rejection of the claim, the BGH clarified in favor of policyholders that the occurrence of an insured event does not require the realization of an intrinsic risk of infection arising from the business itself. However, in the opinion of the court, the list of diseases and pathogens covered by insurance in § 2 No. 2 ZBSV 08 is exhaustive and does not include the disease COVID-19 or the pathogen SARS-CoV-2.

The Federal Court of Justice based the enumeration’s exhaustive character on the relevant understanding of an average policyholder of the clause in question. The heading “2. Notifiable diseases or pathogens” and the subsequent wording “Notifiable diseases and pathogens within the meaning of these supplementary terms and conditions are …” already allow such a policyholder to recognize that an independent definition is provided in the terms and conditions in this respect. The subsequent extensive list of diseases and pathogens would be considered exhaustive by an average policyholder. In contrast, the average policyholder would understand the supplementary reference to the diseases and pathogens “mentioned by name in §§ 6 and 7 of the Infection Protection Act” merely as a clarification that the insurer was guided by §§ 6 and 7 of the Infection Protection Act when drawing up the catalog covered by the insurance. In the opinion of the BGH, the discernible sense and purpose of the clause also speaks in favor of a closed nature of the relevant catalog of insurance conditions. Despite the policyholder’s interest in comprehensive insurance coverage, he would probably not be able to assume that the insurer intended to provide coverage for diseases and pathogens not named in the catalog, which may not occur until years after the contract was concluded. For these, the insurer could not make an appropriate premium calculation because of the indeterminate liability risk.

A violation of the clause in § 2 No. 2 ZBSV 08 against the transparency requirement of § 307 Para. 1 sentence 2 BGB, as well as an unreasonable disadvantage to the policyholder pursuant to Section 307 (2) BGB. 1 sentence 1, para. 2 BGB from.

The court’s reasoning is understandable and, as a result, probably also in line with the interests at stake. It is true that a policyholder who expressly takes out a business closure insurance policy may assume that it will also pay out if his business is now closed. However, insurance contracts are known to contain “fine print”, so it is always necessary to look very carefully at which risks are to be covered by the insurance and which are not. Based on the decision, tenants should review their insurance terms. Provided that these, which is to be assumed predominantly, also have a closed character with regard to the listed relevant diseases and pathogens, a dialogue with the insurance company must nevertheless not be hopeless. If necessary, payments will be made on a goodwill basis if there is interest in maintaining the insurance relationship in the future or in extending the insurance coverage. In any case, in the event that the insurance policies taken out do not take effect, tenants should take this aspect into account in their rent adjustment negotiations pursuant to Section 313 para. 1 BGB with the landlords to the validity. We will gladly support you in this

Explore #more

13.06.2024 | Press releases

Handelsblatt and Best Lawyers honor KPMG Law Experts

Best Lawyers has once again identified the best commercial lawyers in Germany for 2024 exclusively for Handelsblatt. A total of 28 lawyers were honored by…

27.05.2024 | KPMG Law Insights

Agreement on ecodesign regulation: products to become more sustainable

After lengthy negotiations, the Council and Parliament of the European Union reached a provisional agreement on the Ecodesign Regulation on the night of December 5,…

22.05.2024 | KPMG Law Insights

The AI Act is coming: EU wants to get a grip on AI risks

For many people, artificial intelligence (AI) is the great hope for business, healthcare and science. But there are also plenty of critics who fear the…

17.05.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: When the family business is to be sold

Around 38,000 family businesses are currently handed over each year. In most cases, the change of ownership takes place within the family. But more and…

03.05.2024 | KPMG Law Insights

Doubts about inability to work? What employers can do

The certificate of incapacity for work (AU certificate) serves as proof of incapacity for work due to illness. However, only if the certificate meets certain…

27.03.2024 | KPMG Law Insights

EU Buildings Directive: life cycle greenhouse potential becomes relevant

On March 12, 2024, the EU Parliament approved the amendment to the EU Buildings Directive. The directive obliges member states and, indirectly, building owners and…

19.03.2024 | Business Performance & Resilience, KPMG Law Insights

CSDDD: Provisional agreement on the EU Supply Chain Directive

The EU member states agreed on the CSDDD, the EU Supply Chain Directive, on March 15, 2024. Germany abstained from the vote. Negotiators from the…

21.02.2024 | KPMG Law Insights, KPMG Law Insights

The Digital Services Act – what does it mean for companies?

The Digital Services Act (DSA) is a key component of the EU’s digital strategy and came into force on November 16, 2022. As a regulation,…

15.02.2024 | KPMG Law Insights

Data compliance management: How to implement it in practice

Part 3 of the article series “Professional tips for data compliance management”   The third part of this series of articles deals with data compliance

14.02.2024 | Business Performance & Resilience, PR Publications

Guest article in ZURe: Monitoring the implementation of the LkSG

The current issue of ZURe (p. 20 ff.) contains a guest article by KPMG Law Partner Thomas Uhlig (Head of General Business and Commercial Law),…


Dr. Rainer Algermissen

Head of Construction and Real Estate Law

Fuhlentwiete 5
20355 Hamburg

tel: +49 40 3609945331

Petra Swai

Senior Manager

Fuhlentwiete 5
20355 Hamburg

tel: +49 40 3609945523

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.