Partial success for hoteliers against Ergo
Mhe does with a clear signal Federal Court of Justice (BGH) hope for shopkeepers, hoteliers and restaurateurs who are arguing with their insurer in court about the damage caused by a corona-related closure of operations in 2020. If the policy does not refer to a final catalog of insured (infectious) diseases, but instead refers to a list in the Infection Protection Act (IfSG), the fourth civil senate in Karlsruhe considers the interests of customers to be particularly worthy of protection.
Covid-19 was included in the law as an infectious disease on May 23, 2020. From this point onwards, the insurer must take responsibility for the damage, stressed the highest German civil judges in their decision on Wednesday afternoon. According to the General Association of the German Insurance Industry (GDV), the insurance conditions were rarely used (Az. IV ZR 465/21).
In the initial case, a hotelier from the district of Hamelin had the insurer Ergo sued. The policyholder demanded more than 8,300 euros for the spring lockdown. However, he does not receive any money for this period because Covid-19 is not listed as a notifiable disease in the IfSG; in this respect, the civil senate stuck to its earlier case law. For the subsequent official closure order from November 2020, however, there is a claim against Ergo: If the insurance conditions are not clearly formulated, the variant that is more favorable for the insured person applies in case of doubt, the federal judges explained – whereby they refer to the time of the damage occurrence and not the conclusion of the contract. The judges of the lower court have to clarify how much money Ergo has to pay the Lower Saxony hotelier.
Ergo wants to accept judgement
“We are pleased that we were able to assert the interests of the insured through all instances in one go. Corona-related closures can – contrary to what many insurers claim – be covered by the business closure insurance,” explained Mark Wilhelm, the hotelier’s lawyer, after the verdict. This could help at least some of the insured restaurateurs and hoteliers in Germany, according to the Düsseldorf law firm Wilhelm Rechtsanwälte. The partially defeated Ergo wants to accept the judge’s verdict.
Some property insurers had paid up to 15 percent of the required compensation to their customers as a gesture of goodwill. There were also numerous out-of-court settlements. According to earlier information from the central association GDV, the costs for the insurers are in the range of 1 billion euros. However, this does not include the ongoing legal disputes.
Few cases pending
When asked by the dpa news agency, a court spokesman in Karlsruhe stated that almost all of the original 160 procedures for business closure insurance had now been completed. Only ten to 15 cases, some of which are very special, are still open. According to him, the lawsuit against Ergo could have been the last major decision.
In a fundamental decision in January 2022, the BGH had agreed with the insurers. At that time, an innkeeper from Schleswig-Holstein was defeated by the Cologne-based Axa Group because the insurer was only responsible for pathogens that were listed in the contract clauses (Az. IV ZR 144/21).
In March 2022, the BGH also decided that the state cannot be held liable for the loss of sales during the corona lockdowns. Because of financial compensation for the spring lockdown, a catering and event company from Brandenburg went to the last instance without success.