The District Court of Munich I ruled on October 22nd, 2020 for file number 12 O 5868/20 that the operator of an inn can demand compensation from her insurance company in the amount of 427,169.86 euros due to the corona-related business closure.
From the press release of the LG Munich I No. 21/2020 of October 22nd, 2020 results:
The Bavarian State Ministry for Health and Care had closed the plaintiff’s inn in Munich from March 21, 2020 due to the corona virus.
The LG Munich I largely upheld the claim.
According to the regional court, the insurance company is obliged to provide benefits.
The legal form and the legality of the arrangement for the insurance company’s obligation to pay do not matter. The fact that the coronavirus did not occur in the plaintiff’s company also does not conflict with the claim, because according to the General Insurance Conditions (AVB) the only decisive factor is that the company was closed due to the Infection Protection Act (IfSG). The plaintiff’s business was also completely closed, and a – legally permissible – out-of-home sale was unreasonable for the plaintiff. An out-of-home sale, if it is only a completely subordinate take-away business for the restaurant business, does not represent an entrepreneurial alternative to which the policyholder has to be referred.
Contrary to the opinion of the defendant insurance company, the scope of insurance was not effectively restricted, because the clause used by the defendant in § 1 number 2 AVB was not transparent and therefore ineffective. If the insurance protection is restricted by an AVB clause, the policyholder must be clearly shown the extent to which insurance protection exists despite the clause. Section 1 (2) AVB does not meet these requirements. Because the policyholder assumes on the basis of the wording of the AVB that the insurance cover is basically comprehensive and coincides with the IfSG and that § 1 number 2 AVB merely reproduces the legally recorded diseases and pathogens. The fact that the list of diseases and pathogens in § 1 number 2 AVB is incomplete compared to the IfSG is not obvious to the policyholder, because a clear and distinct formulation such as “only the following”, “exclusively the following” or ” this list is exhaustive “does not contain the clause. In order to determine the true content of the insurance cover, the policyholder would ultimately have to compare the list in § 1 number 2 AVB word for word with the current version of the IfSG. A clause, the scope of which can only be identified by a comparison with a statutory provision that the average policyholder of this insurance is not familiar with, is, however, opaque.
With regard to the amount of the compensation to be paid, neither short-time work benefits nor state corona liquidity aid should be taken into account to reduce the claim, since this is not a matter of compensation payments for the company closings.
The judgment is not final.
The applicable General Insurance Conditions (AVB) are as follows:
“§ 1 Subject of the insurance, insured risks
1. Scope of insurance
The insurer pays compensation if the competent authority on the basis of the law for the prevention and control of infectious diseases in humans (Infection Protection Act – IfSG) occurs when diseases or pathogens that are subject to notification (see No. 2)
a) the insured company […] closes; […].
2. Notifiable diseases and pathogens
Notifiable diseases and pathogens within the meaning of these conditions are the following diseases and pathogens named in the Infection Act in Sections 6 and 7:
§ 3 Exclusions
4. Diseases and pathogens
The insurer is not liable for prion diseases or suspicion of them. […].“
Note from the press office: In the meantime, 88 complaints have been received in the process complex of business closure insurance at the LG Munich I.
This press release was published on the press distribution list openPR.
Dipl.-Jur. Jens Usebach Lawyer specializing in protection against dismissal and labor law
Specialized law firm JURA.CC
Dipl.-Jur. Jens Usebach LL.M. Lawyer for dismissal protection & labor law from the specialty law firm JURA.CC works on dismissal protection law in labor law and represents clients out of court in termination agreements / settlement agreements in the event of termination of the employment contract by the employer and in court in dismissal protection suits before the labor court, the regional labor court and the federal labor court with the aim to achieve an appropriate and as high as possible compensation for the employee for the loss of the job, a very good reference for future applications or the withdrawal of the notice and continued employment.
Lawyer Dipl.-Jur. Jens Usebach LL.M. publishes interesting legal questions, judgments, resolutions and legislative proposals on various legal topics on the Internet.
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