ENNIO LEANZA
The court found this in the judgment published on Tuesday. The key question is likely to be dealt with before the federal court.
The legal dispute is about the extent to which an insurer has to pay for pandemic damage to companies that have taken out epidemic insurance. These were mainly restaurants and companies from the food industry. When the pandemic broke out, the insurance industry was of the opinion that corona damage was generally not covered. Finally, the contracts for pandemics also contained exclusion clauses.
The legal situation was not so clearly regulated in the insurance contracts. In legal opinions, for example, experts argued about this and after the first corona lockdown, the insurers – like Helvetia – made a comparison offer to customers with epidemic insurance that should cover at least part of the damage incurred.
Most of the victims accepted Helvetia’s offer. In Switzerland, over 95 percent of the companies affected had agreed to the settlement, Helvetia Switzerland boss Martin Jara is quoted in a statement published on Tuesday. The sums of money from it were paid out immediately.
However, a few customers rejected the offer and took legal action. This is also the case with the plaintiff at the Aargau Commercial Court, who, like other restaurants, cinemas, bars or shops, had to close by order of the Federal Council from mid-March to 11 May 2020.
On the basis of the insurance contract, she demanded 40,000 francs in court for the loss of income resulting from the lockdown and additional costs incurred as a result of the closure. The court writes that it is only part of the damage that the policyholder sued with a so-called partial action before the commercial court. She can assert further claims later.
According to the ruling, the commercial court found that the pandemic exclusion in insurance contracts “does not apply”. This is based on the WHO’s classification of pandemics into six phases and this classification from 2005 is outdated and no longer relevant. Rather, the pandemic phases should be described dynamically by the WHO.
The judgment of the commercial court is not yet final. It can be appealed to the Federal Supreme Court within thirty days.
Martin Jara believes that the open legal questions about pandemic exclusion in epidemic insurance should ultimately be clarified before the federal court. Because the judgment will probably only be one of several that are expected in the near future and that could be different.
A pandemic is a risk that can only be insured to a limited extent, as it potentially affects all insured parties at the same time, emphasizes Jara. Such an event is excluded in the contract provisions in order to protect the insurance against major risks that threaten the existence of the company.