The lockdowns caused sales to drop in many industries. Those who had to keep doors and gates closed during the lockdown were hit particularly hard. It was the same with a hotel operator. He had taken out business interruption insurance. However, the insurance company refused to pay. Now the Federal Court of Justice (judgment of January 18, 2023, Az: IV ZR 465/21) had to decide whether an insured event existed.
The essentials in brief:
The business closure insurance must pay compensation for official closure orders if the general terms and conditions only refer to the Infection Protection Act. The deadline for this is May 23, 2020. On this day, Corvid-19 was included in the Infection Protection Act.
Insurance refused because of the terms and conditions
The hotel operator was concerned with the failures during the lockdown from March 18 to May 25, 2020. He demanded compensation for this period from his business interruption insurance. For the second lockdown from November 2, 2020, he asked the court to determine that the insurance company had to pay for the losses. After all, the hotel was allowed to open for business travelers; however, the doors remained closed to tourists.
However, with reference to the general terms and conditions, the insurance company took the view that it was not obliged to pay. The terms and conditions state that the insurance cover takes effect if there are losses due to the diseases named in § 6 and § 7 of the Infection Protection Act. The crux: At the time the contract was signed, Covid-19 was not yet part of the Infection Protection Act. The entry did not take place until May 23, 2020. Accordingly, the judges of the Federal Court of Justice had to deal with the question of whether the extension of the law after the conclusion of the contract also extends the insurance cover, so to speak.
Timing of damage is critical
The judges are certain: With terms and conditions formulated in this way, it does not matter which infectious diseases were included in the Infection Protection Act at the time the contract was concluded. The point in time at which the damage occurred is decisive. Accordingly, insurers must compensate for the damage if the official closure order was issued after May 23, 2020. Accordingly, the business closure insurance does not have to pay any compensation for the first lockdown, since the authority issued the order on March 18th. There is a payment obligation for the second lockdown.
These terms and conditions rather rare
However, not everyone who has taken out such insurance can rejoice. Like the General Association of the German Insurance Industry the LTO reports, clauses that simply refer to the Infection Protection Act are rare. In most cases, the insured infectious diseases are named in the terms and conditions themselves.
