The court also considered it important that the clause was an explicit extension of the cover that was added to the existing policy as the result of a terrorist attack on a mall in the Netherlands which prompted the closure of other malls around the country. The court gave precedence to the literal wording of the clause and argued that the insured was entitled to coverage, since the clause does not indicate that there must be a link between the occurrence of the damage and the location. The court (both in first instance and appeal) sided with the insured. The insurer disputed this by arguing that coverage should only be provided if the disease had occurred at the place of business and that in this case, the closing of the place of business was not a direct consequence of covid, but rather the consequence of governmental measures. The insured claimed that they were entitled to coverage under the Communicable Disease inclusion. The policy includes an additional “BI without material damage” clause, which contains among other things a “Communicable Disease” inclusion, stating that loss of profits arising from compulsory closure of the business location by order of the government would be covered up to an amount of 25.000 EUR. Two relevant judgments have been published: Have any judgments been given that deal with BI claims in relation to the current COVID-19 pandemic or other contagious/infectious diseases? These cases will be discussed briefly in later sections.įurthermore, it is possible that there might be cases currently still pending - the existence of a case is generally not known to the wider public before a judgment is rendered (unless the case is picked up by the media). However, it must be noted that such policies form an exception to the general rule and are therefore not common in the Dutch insurance industry.Īre there any court proceedings currently dealing with the validity of BI claims?Īs of July 2022 we are aware of two cases in which the insured challenged a denial of BI insurance coverage in court. This can be illustrated by the two cases discussed hereafter. It could be possible, however, that insurance policies do cover losses that are not directly related to material damage, if the policy includes an additional “Communicable Disease” clause. In general, damage due to BI as a result of the coronavirus does not qualify as material damage to property, or as a named peril, and is therefore not covered.
In principle, business damage is only covered by BI insurance if there is material damage to insured property (such as real estate or inventory), caused by a risk specified in the policy conditions (“named peril”).
The Dutch Association of Insurers specifically points out that in this case the government is taking measures to help businesses ( ).ĭo insurance policies in your jurisdiction generally restrict BI to losses directly resulting from physical damage? However, the Dutch market seems broadly unanimous: damage due to the coronavirus is in principle not covered by BI insurance. Unsurprisingly, the AFM has not released a statement about contractual uncertainty around the validity of BI claims. The Autoriteit Financiële Markten (AFM) regulates insurers and other financial service providers, but does not interfere with civil law matters pertaining to policy coverage.
Has the official regulator/authority intervened to help resolve contractual uncertainty around the validity of BI claims?
0 kommentar(er)
