Federal Court of Justice: Did insurance companies have to pay during the lockdown?

Does business closure insurance apply in the event of a lockdown during a pandemic? The Federal Court of Justice must decide that. Because Corona was missing in the clauses, the insurers refused to pay.

Marco Ceccaroli runs the Bellavista Travemünde restaurant directly on the Baltic Sea coast. During the first corona-related shutdown in spring 2020, his restaurant had to close. For a long time.

“It was bad. A feeling of panic came up,” says Ceccaroli. There was no protection and it was unclear how to proceed. “There was still no short-time work allowance, there were no grants, no bridging assistance. So you didn’t know how to continue bearing the costs. That was a threat to your existence in this situation.”

Axa refused payment from insurance

But luckily, Ceccaroli thought, he had business closure insurance. He had always dutifully paid into them. And he now wanted to have the loss of sales replaced for at least 30 days – that’s what his contract says. But the insurance company, the Axa Group, refused to pay.

The problem is the formulation of the individual insurance, says Ceccaroli. In his case, Corona is of course not explicitly included in the insurance policy for pathogens, “because there was no Corona back then. And that was exactly the problem the insurance was referring to.”

Pandemic not insured according to many insurers

Many insurers refused to pay. Reason: The insurance against company closures refers to specific incidents in the company, for example if the health department closes the restaurant because of salmonella or if the staff of a canteen kitchen falls ill with the norovirus. A national pandemic like Corona, for which the authorities ordered a nationwide lockdown, is not meant and not insured.

The lower courts in Schleswig-Holstein saw it the same way, as did most of the higher regional courts in Germany. Axa has not had to pay until now. The innkeeper even understands this – despite his own disappointment – from the point of view of the insurance company, because “the flood of payments” is of course “an extreme rat’s tail”.

clauses very different

It is unclear whether the BGH will make a landmark decision. Because the insurance companies concluded very different contracts. And the clauses in the contracts were not always clear. Some of them contain the notifiable diseases from the Infection Protection Act 1:1, for which payment would be made. Others made blanket reference to the law. But: Sars-Cov-2, i.e. the Covid 19 virus, was only added by the legislator after the Corona outbreak.

In any case, the General Association of the German Insurance Industry is now recommending its members to expressly exclude pandemics in new contracts. The Axa has already done that. Nevertheless, Ceccaroli stayed with the international insurance group. “They’re all the same there. It doesn’t matter which one you go to,” he says. “I signed that too. I need insurance coverage for my shop.”

The verdict of the Federal Court of Justice, the highest German civil court, may already fall in the afternoon.