Like all restaurateurs, this Thionvillois learned on Saturday March 14, 2020, through the voice of Prime Minister Édouard Philippe, that due to the Covid epidemic, all places open to the public, restaurants, bars and cinemas included , had to lower the curtain that same evening. Quite a shock. At this date, no one knows yet that it is only at the beginning of June that the restaurants will be authorized to reopen, and under certain conditions. Our restaurant owner from Thionville, faced with a significant drop in turnover, contacted the local Axa agency, with which he took out an insurance contract. This in fact includes an extension of the guarantee for operating losses when the following two conditions are met: “The decision to close was taken by a competent administrative authority outside yourself. The decision to close is the consequence of a contagious disease, murder, suicide, epidemic or poisoning. He therefore appears to be eligible for compensation. “The decision to close comes from the State and the spread of the Covid in the world seems to have all the characteristics of an epidemic”, argues his lawyer, Me Michel Nassoy.
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Court cancels exclusion clause
However, the insurance company will oppose any compensation. Reason given: a clause included in the contract which excludes operating losses “when, on the date of the closure decision, at least one other establishment, whatever its nature and its activity, is the subject, on the same departmental territory than that of the insured establishment, an administrative closure measure, for identical cause ”. “This clause is not clear since on that date, all restaurants in France had to close,” said Michel Nassoy. An opinion shared by the commercial chamber of the court of Thionville which, in its judgment of July 6, considered that “this clause tends to systematically deprive the insured of compensation in the presence of an epidemic. And that in essence, an epidemic concerns a large number of individuals and cannot be confined to a single establishment ”. The court therefore considered that the disputed exclusion was “subject to interpretation” and decided to annul it. The insurance company was ordered to allocate to the restaurateur, as a provision, a sum of 60,000 euros, pending a forensic accountant, appointed by the court, to determine the actual operating loss. The trader had initially calculated his operating loss at € 250,000.
Axa appealed against the judgment.
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