In the case of government-ordered closures due to coronavirus, business closure insurance may be liable according to a ruling by the BGH on January 18, 2023 (Case No.: IV ZR 465/21).
Due to coronavirus, there were repeated government-ordered closures in the gastronomy and hotel industry. The current BGH ruling shows that business closure insurance is liable under certain conditions, explains MTR Legal Rechtsanwälte, which also advises its clients on legal issues related to coronavirus.
The underlying case before the BGH involved the lawsuit of a hotelier from Hameln. Due to a government order, he had to close his hotel to tourists for the first time in March 2020 and again in November 2020 to contain the spread of the coronavirus. Therefore, the hotelier claimed his business closure insurance, which refused payment.
The insurance terms state that the insurer provides compensation if the competent authority completely or partially closes the insured operation due to the Infection Protection Act (IfSG) upon the occurrence of reportable diseases or pathogens. The reportable diseases were not listed in the insurance terms but were only generally referenced as “the diseases and pathogens specifically named in sections 6 and 7 of the Infection Protection Act.”
In March 2020, Covid-19 or the coronavirus SARS-CoV-2 was not yet specifically listed in the Infection Protection Act. This only occurred on May 23, 2020. Therefore, the hotelier did not have a claim against the insurer for the first closure in March 2020. However, for the second closure in November 2020, the situation is different, according to the BGH.
This is because it is not clear from the insurance terms whether the time of concluding the contract or the time of the damage occurring is decisive for insurance coverage. This ambiguity works against the insurer. Therefore, the hotelier has a claim to benefits from the business closure insurance for the second closure in November 2020, the BGH decided.
The BGH ruling shows that precise wording in the contract terms is crucial for insurance coverage.
MTR Legal Rechtsanwälte advises on legal issues related to coronavirus.
