Gastronomy: Does the insurance company have to pay for closure due to Covid-19?

Vertragsrecht

We run a catering business that had to be closed repeatedly due to Covid-19 measures. Part of the business insurance we have taken out is the hygiene insurance. However, our insurance company now refuses to pay any insurance benefits for the forced closure of the business. How can/should we proceed as a simple restaurant business in order to claim insurance benefits?

As a result of officially ordered closures, restaurants as well as recreational, sports and cultural facilities were already closed in spring 2020 and again from December 22, 2020 until April 19, 2021 (outdoor area) and until May 31, 2021 (indoor area). In addition to hardship payments from the federal government, claims from private insurance relationships must also be clarified.

 

Procedure

In advance, each catering business should conduct a thorough review of its insurance company's General Insurance Provisions (GIP). It is advisable to notify the insurance company immediately of the loss of business during the officially ordered closure phases. In short, the loss includes all reduced income and additional expenses related to the business interruption.

Hygiene insurance generally protects against loss of income and production due to communicable diseases. This applies in particular if the business can only be continued to a limited extent due to official orders, or has to be shut down completely for a certain period of time.

One or the other insurance company may be willing to at least check the insurance coverage internally. Rejection is unfortunately the rule with some companies. In the case of rejection, even settlement talks or professionally supervised mediation are often of no avail.

 

Limitation period

In such a case, it is essential to initiate debt collection or arbitration proceedings in accordance with the Swiss Code of Civil Procedure (ZPO) before the expiry of the two-year limitation period. With regard to claims arising from the 1st shutdown ("lockdown") in spring 2020, this would be on March 15, 2022. Irrespective of this, it is advisable to obtain a waiver of the statute of limitations at any time.

The foundation of a claim is always the detailed insurance terms and conditions. They usually contain a list of diseases and pathogens covered by the insurance. Since the coronavirus is hardly ever explicitly mentioned therein, it must be checked in each individual case whether and at what point Covid-19 can be subsumed under these diseases and pathogens.

 

Partial lawsuit first

In the event of a lawsuit, it is not only the loss of earnings resulting from the lockdown that must be claimed, but also the additional costs incurred as a result of the lockdown. If you are only able to quantify part of the damage incurred, we recommend filing a so-called partial action with the competent district or commercial court.

Further claims from additional (complete or partial) closures can then be asserted later. Thus, with the certificate obligation in indoor areas, a new category of officially ordered restrictions for the catering industry was created only recently, the insurance law consequences of which are still unclear and will therefore probably have to be interpreted in court.