By Franck BEAUDOIN, avocat (attorney-at-law in France), FB Juris
Published on idroit.co on 24 May 2020
In an interim order issued on Friday 22 May 2020, the President of the Paris Commercial Court, ruling in summary proceedings, ordered an insurer (AXA) to compensate the operating loss resulting from the administrative closure of a French restaurant due to the Covid-19 health crisis, pursuant to an insurance policy stipulating this guarantee.
Businesses that have been subject to an administrative closure have an interest in checking all of their insurance policies to determine whether they cover the operating loss resulting from the administrative closure of establishments.
The interim order is provisionally enforceable. AXA has indicated that it will appeal this provisional decision, but in the meantime, it must execute it and immediately pay the insured the amount decided by the judge, as a reserve.
At present, to our knowledge, the decision is not fully published. However, we understand that, in this case, the insurance agreement stipulated compensation for the operating loss resulting from the administrative closure of the establishment.
Not all insurance contracts include such a guarantee. The scope of the clause may vary depending on the different insurance contracts. However, when this cover is provided for in the insurance agreement, if there is no explicit limitation applying to a health crisis, the insured person most likely has the right to be compensated. In particular, an insurance policy is an adherence agreement which must be interpreted in the sense most favorable to the insured, in case of doubt as to the scope of its clauses.
In the present case, the extracts from the order published in the media, as well as the press release published by AXA on 22 May 2020, suggest that the position of the insurer is weak legally, but it is essential to read directly and analyze the interim order, as well as the insurance contract, to really assess the situation.
In any case, in absolute terms, all the companies which have suffered an administrative closure could certainly not attack their insurance company and win legal proceedings, but any insured whose contract provides for compensation for the operating loss resulting from the administrative closure of establishments should be able to be compensated if it has been forced to close, subject to the precise terms of the insurance policy.
The stakes are considerable for insurers and for the insured. Insurers seem to want to convince that few policies cover the risk involved and that even for the policies concerned exclusions should apply due to the particular characteristics of the Covid-19 health crisis. The reasoning developed publicly at this stage does not appear legally convincing, however.
For the insured, it is advisable to check the insurance contracts, by analyzing them directly or by having them analyzed by his lawyer, without being limited to the analysis of the broker or the insurer.
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