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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.

Facts
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.

Conclusion
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

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Partner
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