A new round in the fight of Munich restaurateurs for benefits from their business closure insurance – this time: Guido Schweighart, who has been running the “Guido al Duomo” on Frauenplatz, behind the cathedral, since 2002. He wants around 160,000 euros from Allianz because – like all other inns – it had to close from the end of March to May. However, the insurance company refuses to pay. More than 100 such proceedings are pending at the Munich I Regional Court. The first judgments gave the landlords right, but are not yet final.
Schweighart takes a slightly different path than most of his colleagues: He filed the lawsuit not with a civil chamber, but with a chamber of commerce of the court. In addition to a professional judge, this is staffed by two lay judges who are themselves merchants. Schweighart’s lawyer says the reason for this is not the hope that they would be more sympathetic to a colleague, so to speak: “I thought that it might be faster at the Chamber of Commerce.”
But then it took almost two hours – also because Martin Scholz, the presiding judge, took the time to have a detailed discussion with the lawyers. In the event of their refusal to pay, the insurance companies refer to their General Insurance Conditions (AVB) – in which Allianz states that the business closure insurance applies if “the competent authority closes the business due to the Infection Protection Act when reportable diseases occur”; then a previously agreed daily rate will be paid as compensation for a maximum of 30 days per year. But: Further down in the AVB there is a list of diseases and pathogens that are covered by the insurance – but this list is not identical to that contained in the Infection Protection Act.
The civil chambers of the regional court, which have already negotiated similar cases, saw it in such a way that an average policyholder cannot be expected to put the AVB and the legal text next to each other and compare what he is actually insured against. Judge Scholz said, however, that from a businessman – one of whom is Schweighart as an authorized signatory of the GmbH that runs his restaurant – from a businessman “one can expect that he looks into the law”.
But that is not the real problem – the corona virus, which triggered the closure of the catering trade in March, did not even exist when Schweighart took out his insurance. There is a kind of general clause in the Infection Protection Act, however, which deals with notifiable diseases: In addition to those on the list, this also includes those that pose “a serious risk to the general public”. Does that mean that a newly emerging dangerous pathogen is automatically insured, so to speak? Or are only those diseases listed in the AVB valid forever and at all times?
The court will find a reference to this further back in the insurance conditions: There it is expressly stated that prion diseases are not insured. If there is such an exclusion clause and Corona is not mentioned in it – then should that mean that the virus is included? The court came to this – preliminary – opinion after a consultation: “We are seeing an insured event,” says Martin Scholz, a judgment is to be announced at the end of January. The insurance companies have now reacted to the anger with their virus insurance – and canceled all existing policies, including those of Guido Schweighart.
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