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Latest news on coronavirus-induced business closure as an insured event

If, in a business closure insurance policy that has been taken out, the insurer undertakes to provide coverage only for the diseases and pathogens “listed below (cf. Sections 6 and 7 of the Infectious Diseases Protection Act [Infektionsschutzgesetzes, IfSG])“ then there would be no insurance cover in the event of a coronavirus-induced business closure. This was the decision of Hamm’s Higher Regional Court [Oberlandesgericht, OLG] in its ruling from 15.7.2020, case reference: 20 W 21/20, which differed from a previous ruling by a Regional Court [Landesgericht, LG].

Exhaustive terms and conditions of insurance

In the case in question, the parties had concluded the current insurance contract prior to the amendment of 23.5.2020 to the Infectious Diseases Protection Act (IfSG) and the Regulation on the Extension of the Notification Obligation of 30.01.2020. Hamm’s OLG confirmed the negative decision previously issued by Essen’s LG with respect to payment arising from a business closure insurance policy. The wording of the terms and conditions of insurance is exhaustive and including the addition in brackets “(cf. Sections 6 and 7 IfSG)“ means that there would be no insurance cover for subsequent extensions to the legislation.

Deviation from ruling by Mannheim’s LG

The decision of Hamm’s OLG thus deviated from the ruling by Mannheim’s LG from 29.4.2020, which was discussed in the PKF Newsletter 8/20. Hamm’s OLG rejected an interpretation towards a “dynamic“ reference (also) for subsequent amendments to the Infectious Diseases Protection Act.

Please note: For an evaluation of the obligation of insurers to provide insurance coverage for coronavirus-induced business closures an overview of the agreed provisions and any lists of diseases/pathogens would be of relevance. An addition in brackets “(cf. Sections 6 and 7 IfSG)“ would need to be assessed in the overall context.

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