In the case of officially ordered shutdowns due to corona, business closure insurance may be liable according to a ruling by the BGH on January 18, 2023 (Az.: IV ZR 465/21).
Due to Corona, there were repeated officially ordered shutdowns in the gastronomy and hotel industry. The current BGH ruling shows that business closure insurance is liable under certain conditions, explains the economic law firm MTR Legal Rechtsanwälte, which also advises its clients on legal issues related to Corona.
In the case before the BGH, it was about the lawsuit of a hotelier from Hamelin. Due to an official order, he had to close his hotel for tourists for the first time in March 2020 and again in November 2020 to contain the spread of the coronavirus. The hotelier therefore claimed his business closure insurance, which refused the payment.
According to the insurance terms, the insurer provides compensation if the responsible authority partially or fully closes the insured business due to the Infection Protection Act (IfSG) upon the occurrence of notifiable diseases or pathogens. The notifiable diseases were not listed in the insurance terms but only generally referred to as “the diseases and pathogens listed by name in §§ 6 and 7 of the Infection Protection Act.”
In March 2020, Covid-19 or the coronavirus SARS-CoV-2 had not yet been listed by name in the Infection Protection Act. This only happened on May 23, 2020. Accordingly, the hotelier has no claim against the insurer for the first closure in March 2020. However, the situation is different for the second closure in November 2020, according to the BGH.
For the insurance terms do not clearly state whether the timing of the contract conclusion or the timing of the occurrence of the damage is decisive for the insurance coverage. This ambiguity is at the insurer’s expense. Therefore, the hotelier has a claim for benefits from the business closure insurance for the second closure in November 2020, the BGH decided.
The BGH ruling shows that it depends on the exact wording in the contractual terms for the insurance coverage.
MTR Legal Rechtsanwälte advises on legal issues related to Corona.
