Abstract
The closure of commercial establishments decided by Spanish authorities on several occasions between 2020 and 2021 as a measure to prevent the spread of the COVID-19 virus resulted in a flood of claims to insurers for damages resulting from business interruption. In Spain, the insurance covering those losses is a guarantee within a multi-risk insurance that also covers material damage to the premises and the right to compensation for loss of profits only arises if there is prior material damage. As a result, the insurers refused to pay and ended up being sued in court.
This chapter analyses: (i) the Spanish rulings that have been handed down in relation to these claims (a clear change of trend can be observed here); (ii) whether policyholders who have received government aid due to the temporary closure of their businesses should have their insurance compensation reduced (if they are entitled to receive it); (iii) the measures that insurers are introducing in their contracts and wordings to avoid being exposed to paying compensation for business interruptions resulting from pandemics in the future; and (iv) the position of the insurance companies’ association (UNESPA) and the Spanish government in relation to the future coverage of these damages.
Many of the rulings discussed here are not published and have not been easy to obtain. Often, the Courts do not provide them to interested persons (like scholars), even if they are formally requested. To obtain them, I have had the help of two lawyers specialising in insurance law and to whom I am extremely grateful for their kindness: Joaquín Ruiz Echauri and Javier López y García de la Serrana. As for the general terms and conditions of the companies, some of them can be found on the Internet, but many others not. For this reason, I was helped by insurance broker Florentino Bango, who has provided me with several general conditions that are not available to the public, as well as the pandemic coverage exclusion clause that companies are beginning to use, which is similar to those that are widespread in other markets. These words are meant as a small tribute to this broker, a great professional and a very kind person, who has just passed away and with whom I have shared my passion for insurance for decades.
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Notes
- 1.
Judgment No. 59/2021, of 3 February, of the Provincial Court of Girona, 1st Section (ECLI:ES:APGI:2021:13).
- 2.
By Royal Decree 463/2020, of 14 March, declaring a state of alarm for the management of the health crisis situation caused by COVID-19, see https://www.boe.es/buscar/act.php?id=BOE-A-2020-3692.
- 3.
It should be clarified that in Spanish Law the specific stipulations of a policy are called “particular conditions” (“condiciones particulares”), as opposed to the general conditions, which are drawn up for the potential insured in general. To avoid confusion, we have always translated “particular conditions” in this chapter as “specific stipulations”.
- 4.
Law 50/1980, of 8 October 1980, on Insurance Contract, available at https://boe.es/buscar/act.php?id=BOE-A-1980-22501.
- 5.
- 6.
- 7.
The Dear CEO letter of 22 January 2021, published by the FCA, states: “It remains the case that most SME BI policies are focused on property damage and only have basic cover for BI as a consequence of property damage, so are unlikely to pay out in relation to the COVID-19 pandemic and its effects. However, some policies providing cover for BI from other causes, in particular infectious or notifiable diseases and non-damage denial of access and public authority closures or restrictions, do provide cover for these events”, available at https://www.fca.org.uk/publication/correspondence/dear-ceo-letter-business-interruption-insurance-january-2021.pdf.
- 8.
V. https://www.fca.org.uk/firms/business-interruption-insurance/policy-checker (last visit on the 22th of June of 2022).
- 9.
FCA example of a disease clause: “We shall indemnify You in respect of interruption or interference with the Business during the Indemnity Period following any ... occurrence of a Notifiable Disease (defined as illness sustained by any person resulting from any human infectious or human contagious disease an outbreak of which the competent local authority has stipulated shall be notified to them) within a radius of 25 miles of the Premises”.
- 10.
FCA example of an access prohibition clause: “Loss ... resulting from ... Prevention of access to the Premises due to the actions or advice of a government or local authority due to an emergency which is likely to endanger life or property”.
- 11.
FCA example of a hybrid clause: “Loss as a result of closure or restrictions placed on the Premises as a result of a notifiable human disease manifesting itself within a radius of 1 mile of the Premises”.
- 12.
Access prohibition clauses, due to a prohibition by authorities because of an emergency, e.g. an explosion in a nearby building, which makes it advisable to close the area to the transit of persons, are dealt with infra in Sect. 4.
- 13.
- 14.
Segurcaixa-Adeslas, Model S.RE. 442/02, chapter VI, p. 56.
- 15.
“Material damage” means the “destruction, deterioration or disappearance of the insured property” (see, inter alia, Reale and Confianc Group’s general conditions for commercial multi-risk, model 820 V18/06-2012, Art. 1.3, “definitions and concepts”, p. 1).
- 16.
Thus, for example, in the general conditions of Generali “Comercio”, after stating that losses due to interruption derived from the occurrence of material damage in the establishment itself are covered, it is added (page 70): “Also included are losses that due to interruption of the insured activity may occur as a consequence of works or subsidence of land on the public road that totally impede access to the insured business premises”.
- 17.
See, in these terms, the Segurcaixa-Adeslas policy, p. 57.
- 18.
See, for example, the Segurcaixa-Adeslas policy, cit, p. 61. Also, in the general conditions of Zurich “Comercios” (Model 2/3.01.07.04 MAR2020), Art. 4.5.4.3, available at https://www.orangeseguros.es/static/pdf/CondicionesOrangeSeguros.pdf, and “Negocios” (Model 2/3.01.06.70 DEC2013), Art. 3.5.1.3.3, in the following terms: “Loss of profits is not covered: a) Due to provisions, regulations, or fines and penalties resulting from their infringement” (highlighted in the original, in compliance with Art. 3 LCS). But not, on the other hand, in policies of the same branch of other insurance companies, such as Generali, nor in those of Santa Lucia called “Factory” and “Factory Plus”, nor in those of Mapfre, Lagun Aro, or Allianz.
- 19.
The same occurs with the hybrid clauses, although in this case the closure must be due to a contagious disease.
- 20.
See, for example, among others, that of Santa Lucía Factory Plus, p. 37, which states that it excludes “Compensation for damages covered if the insured establishment or industry does not resume its activity, unless the cessation is due to force majeure”. Similar is the provision in the aforementioned Zurich “Comercios” (2020) and “Negocios” (2013) general conditions, which, in relation to the coverage for business interruption, state (Arts. 4.5 and 3.5, respectively): “This cover is conditional upon the effective resumption of the insured activity after the loss. However, if due to force majeure and independently of their will, the Insured should find it impossible to continue operating the business, they shall be entitled to compensation exclusively for the permanent general expenses incurred up to the moment when they could have been aware of the impossibility of operating the business. The limit of compensation may not exceed the capital indicated in the specific stipulations”. In similar terms, see also the policy of Segurcaixa-Adeslas, cit., p. 62.
- 21.
Thus, for example, in the lawsuits that gave rise to the ruling of the Court of First Instance No. 3 of Valencia 287/2021, of 7 September, and SAP Girona, 2nd Section, 254/2021, of 16 June.
- 22.
Thus, the Sentence of the Court of First Instance No. 3 of Valencia 287/2021, of 7 September, in line with SAP Girona 59/2021.
- 23.
Thus, in the lawsuit that gave rise to the ruling of the Court of First Instance No. 3 of Valencia 287/2021, of 7 September. See also the defendant’s position in the ruling of the Court of First Instance No. 5 of Alcalá 170/2021, of 23 September 2021.
- 24.
In this sense, the defendant’s argumentation in the judgment of the Court of First Instance No. 5 of Ferrol of 7 September 2001 is very correct. See also the aforementioned ruling 287/2021 of the Court of First Instance No. 3 of Valencia, which considers them to be delimiting, in accordance with Art. 66 LCS.
- 25.
Thus, in the response to the claim that gave rise to the ruling of the Court of First Instance No. 3 of Valencia 287/2021, of 7 September. See also the defendant’s allegations in the judgment of the Court of First Instance No. 5 of Alcalá de Henares 170/2021, of 23 September 2021, and in the judgment of the Court of First Instance No. 5 of Girona 124/2021, of 12 March 2021.
- 26.
On occasions, instead of relying on this exclusion, which only appears in some general conditions used in Spain, there are insurers who refuse payment based on the exclusion of cover when the activity has not been resumed due to a governmental decision, which, as has been said, cannot be confused with the former. As an example of this confusion, see the argumentation of the defendant insurer in the ruling of the Court of First Instance No. 14 of Granada 166/2021, of 21 July (JUR 2021/242885).
- 27.
See, for example, the arguments of the defendant company in the ruling of the Court of First Instance No. 3 of Huesca of 23 April 2021.
- 28.
See, for example, the ruling of the Court of First Instance No. 14 of Granada 166/2021, of 21 July (JUR 2021/242885).
- 29.
See the arguments of the defendant insurer in the ruling of the Court of First Instance of Lorca 124/2021, of 22 September (JUR 2021/304654). The same in the ruling of the Court of First Instance No. 5 of Alcalá 170/2021, of 23 September 2021, in that of the Court of First Instance No. 5 of Girona 124/2021, of 12 March, in that of the Court of First Instance No. 3 of Valencia 260/2021, of 7 September, in the SAP (1st Section) of Girona 59/2021, of 3 February (JUR 2021/44439) and in the ruling of the Court of First Instance No. 11 of Zaragoza 334/2021, of 18 October 2021.
- 30.
See ruling of the Court of First Instance Santander 268/2021, of 8 October (JUR 2021/329501).
- 31.
- 32.
STS means ruling of the Supreme Court. SSTS it is the same but in plural.
- 33.
STS, 1st Chamber, 563/2021, of 26 July 2021, ECLI:ES:TS:2021:3167. And, among those ruling on claims for damages derived from the business interruption against insurers, see the ruling of the Court of First Instance of Santander 268/2021, of 8 October.
- 34.
STS, 1st Chamber, 399/2020, of 6 July 2020, ECLI:ES:TS:2020:2233.
- 35.
STS, 1st Chamber, 661/2019, of 12 December 2019, ECLI:ES:TS:2019:3943.
- 36.
STS, 1st Chamber, 402/2015, of 14 July 2015, ECLI:ES:TS:2015:3754.
- 37.
JUR 2021/224618.
- 38.
On the other hand, the ruling of the Provincial Court of Girona (2nd Section) 254/2021, of 16 June, considered that the general conditions were not enforceable against the insured because it was not proven that they had been given to him. Hence, this ruling was condemnatory for the insurer, because the limitations to the right to payment of compensation for interruption of activity were precisely in the general conditions not applied and the condemnation was based only on the specific stipulations, which only contained the amount of compensation. This consisted of a sum for each day of interruption.
- 39.
JUR 2021/242885.
- 40.
JUR 2021/304654.
- 41.
This replacement clause is very common in “new for old” insurance, that is, in those policies of material damage in which the indemnifiable value is the cost of reconstruction with new materials or the price of replacement of the damaged good with a new one of the same characteristics. Through this clause, the payment of the part of the compensation corresponding to the difference between the replacement cost and the actual cash value is conditioned to the effective reconstruction or replacement of the damaged property. Currently, in Spain, as in many other markets, property insurance, such as that covering the risk of material damage to business premises, is generally at replacement cost. On this type of insurance and, in particular, replacement clauses, see Muñoz Paredes (1998), p. 335 et seq.
- 42.
An example of a replacement clause, in which the right to receive compensation for loss of profit is made dependent on the effective reconstruction of the premises for the resumption of the business activity (let us remember that the resumption of the business activity is another of the typical conditions of compensation for loss of profit) is the following, taken from the general conditions of Confianc-Reale for commercial multi-risk (Model 820 V18/06-2012), Art. 6.II, p. 16: “Reconstruction must be started within a maximum period of 12 months and completed within a maximum period of 24 months, in both cases from the occurrence of the loss, and must be built in the same place and with the same characteristics as the damaged building, unless there are legal provisions or force majeure preventing this. In this case, compensation will be paid at actual cash value and the compensation period of the ‘interruption’ guarantee will not take effect until the start of the work of reinstalling the business in the new location”.
- 43.
It is also possible that instead of taking out a multi-risk policy that covers property damage plus loss of profit, among other guarantees, the insurer requires that the person requesting coverage for loss of profit must already have taken out coverage for property damage with itself or, at least, with another insurer. Ideally, the guarantee of the interruption of the business should be included in a multi-risk policy, so that there is a more perfect interweaving between the coverage of the loss of profits and that of the material damage, something that is not achieved in the same way with different policies and even more so if they are from different companies. If compensation for loss of profits is conditioned by the resumption of activity in the damaged premises, it is more efficient for the company that covers loss of profits to also cover material damage, insofar as they are claims that depend on each other in their production and in the arising of the right of compensation.
- 44.
The LCS regulates life insurance among personal insurance policies and Article 80 of this Law applies to all of them. It states the following: “The insurance contract for persons includes all risks that may affect the existence, bodily integrity or health of the insured”. The opposite occurs with indemnity insurance, which is always insurance of certain risks, although the policies can be configured as “all risks” or “all risks excepted”. This means that instead of making a list of covered risks and exclusions, it is understood that all risks that affect the insured interest are covered except for those expressly excluded. However, the policies that include coverage for damage due to interruption of business activity are multi-risk policies, not “all risks”, in which the interruption of the activity is one of the risks covered, often optionally. Therefore, only the risks expressly listed in the insurance policy are covered, not others, as is the case with most property and casualty insurance.
- 45.
In this sense, the aforementioned judgment of the Court of First Instance No. 5 of Ferrol of 7 September 2021 makes a very clear statement.
- 46.
For the full text of this Royal Legislative Decree, see https://www.boe.es/buscar/act.php?id=BOE-A-2004-18910.
- 47.
In particular, in relation to compulsory motor insurance, combined agricultural insurance and the winding-up of insurance undertakings.
- 48.
Under Art. 1 (Risks covered):
1. The purpose of the Insurance Compensation Consortium, in relation to the insurance of extraordinary risks set out in these regulations, is to compensate, in the manner established therein, on a compensation basis, for losses arising from extraordinary events occurring in Spain and affecting risks located therein.
For these purposes, under the terms and within the limits established in these regulations, losses shall include direct damage to persons and property, as well as the loss of profits as a consequence thereof.
Extraordinary events shall also be understood in the terms established in these regulations:
-
(a)
The following natural phenomena: earthquakes and tsunamis, extraordinary floods, volcanic eruptions, atypical cyclonic storms, and falls of sidereal bodies and aerolites.
-
(b)
Those caused violently as a consequence of terrorism, rebellion, sedition, riot and civil commotion.
-
(c)
Acts or actions of the Armed Forces or of the Security Forces and Corps in peacetime.
The full text is available at https://www.boe.es/buscar/act.php?id=BOE-A-2004-3373.
-
(a)
- 49.
As stated in Art. 5.1 of the Regulation of extraordinary risks insurance: “The coverage of extraordinary risks shall cover the same goods or persons, as well as the same insured sums that have been established in the insurance policies for the purposes of the coverage of ordinary risks”. For these purposes, in all policies covering extraordinary risks, it is compulsory to include a clause, with content approved by the Directorate General of Insurance (v. Resolution of 28 March 2018 of the Directorate General of Insurance and Pension Funds, available at https://www.boe.es/buscar/act.php?id=BOE-A-2018-5115). This determines the terms in which claims are covered in the event that they are extraordinary. For an example of such a clause in a policy, see Zurich “Commercial” (Model 2/3.01.07.04 MAR2020), Art. 6.7, pp. 28-30, available at https://www.orangeseguros.es/static/pdf/CondicionesOrangeSeguros.pdf.
- 50.
“Recargo obligatorio”. V. the aforementioned Resolution of 28 March 2018 of the Directorate General of Insurance and Pension Funds, which also approves compulsory surcharges.
- 51.
The delimitation of extraordinary risks, such as extraordinary flooding, to be borne by the Consortium, is set out in the Regulation of the Insurance of Extraordinary Risks, Art. 2.
- 52.
In fact, the origin of the Insurance Compensation Consortium is to be found in the Risk Compensation Consortia created after the Spanish Civil War (1936–1939), on an experimental and provisional basis, to deal with claims arising from the war that could not be assumed by the insurance companies alone. From 1954 onwards, these consortia were united into one, which became the current Insurance Compensation Consortium. With the passing of time, together with the coverage of extraordinary or catastrophic risks, which is its main function, it would take on others of a different nature for the better functioning of the insurance market. Sánchez Calero (2010), p. 990, and especially, Barrero Rodríguez (2000), p. 120 et seq.
- 53.
On this issue, see, for example, Sánchez Calero (2010), p. 996.
- 54.
Therefore, if, for example, a deductible is provided for in the ordinary policy, this also applies to the insurance of extraordinary risks. V STS, 1st Chamber, 154/2018, of 20 March 2018, ECLI: ES:TS:2018:952.
- 55.
This refers to that of Supreme Court Justice Vela Torres (2020), pp. 1005-1020, especially p. 1009, which is relevant because his publications on the impact of COVID-19 on insurance are being used by different courts to argue some of the rulings that are precisely resolving claims for loss of profits. Vela Torres speaks of both under the heading “extraordinary risks” and says that the coverage of large risks is attributed to the Insurance Compensation Consortium.
- 56.
The confusion may derive from the fact that Article 44 LCS dedicates the first of its paragraphs to the insurance of extraordinary risks and the second to the insurance of large risks. The latter comes from the reform law 21/1990, of 19 December (Art. 44, in its original version, was a single paragraph, dedicated to extraordinary risks) and large risks were placed there, instead of dedicating an isolated section of the Act to them, which would have been a better solution.
- 57.
- 58.
Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), OJ L 335 17.12.2009, p. 1. Consolidated text, v. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0138-20210630.
- 59.
Art. 2 LCS: “The different types of insurance contracts, in the absence of applicable Law, shall be governed by this Law, the precepts of which are of ius cogens nature, unless otherwise stated therein. Nevertheless, the contractual clauses that are more beneficial for the insured person [than the law] will be understood to be valid”.
- 60.
See, for example, Sánchez Calero (2010), p. 103 and p. 1002 et seq.
- 61.
As stated, for example, in the ruling of the Court of First Instance No. 3 of Valencia 287/2021, of 9 September, and in the ruling of the Court of First Instance No. 5 of Alcalá de Henares 170/2021, of 23 September (JUR 2021/329487).
- 62.
Often cited, “Fundamento de Derecho” 3°.12.
- 63.
B. Arruñada (2021).
- 64.
G. Doménech Pascual (2021), pp. 304–305.
- 65.
Let us recall that the wording of this clause is as follows: “Exclusions common to all types of cover for loss of profits: We do not cover losses produced, caused, derived or resulting from: j) Limitations or restrictions imposed by any Public Body or Authority, or by any other case of force majeure, including requisition or destruction, for the repair of the damage or for the normal development of the business activity”. This clause is present in many terms and conditions of the multi-risk commercial type, with this or very similar wording. See the general conditions of SegurCaixa Negocio (already cited), pp. 61–62.
- 66.
Also, although in a more secondary manner, the concept of force majeure is relevant for the application of the clause whereby the right to receive compensation is conditioned to the resumption of the activity, which, if it cannot be carried out due to force majeure, gives the right to a reduced compensation, if this is foreseen in the policy. This clause is also present in the general conditions cited in the preceding note, those of SegurCaixa Negocio, in the following terms: “Exclusions common to all types of cover for loss of profits: We do not cover losses produced, caused, derived or resulting from: g) Likewise, the losses covered by the insurance shall not be compensable if the insured business does not resume its activity. If the definitive cessation of the same is due to a cause of force majeure or to the intervention of any Public Body or Authority, compensation will be paid for the permanent expenses incurred up to the moment when the impossibility of resuming the operation was known, and always with the maximum limit of the agreed Indemnity Period”.
- 67.
The current Spanish Civil Code was approved by Royal Decree of 24 July 1889, having undergone numerous reforms since its approval. The updated version can be consulted at https://boe.es/buscar/act.php?id=BOE-A-1889-4763.
- 68.
Art. 1105 Cc: “Apart from the cases expressly mentioned in the law, and those in which the obligation so declares, no one is liable for those events which could not have been foreseen, or which, foreseen, were unavoidable”.
- 69.
- 70.
Although the notes of unforeseeability and impossibility of control are more intense in the case of force majeure. The distinction between fortuitous event and force majeure, which we can dispense with here, only acquires relevance when it is a question of applying a rule that attributes different effects to one and the other. This is the case of Art. 1784 Cc, which frees the hotelier from liability when the loss of the effects of a traveller staying in their establishment is due to force majeure, but not if it is due to a fortuitous event. The same is set out in Art. 1 of the Law on civil liability and insurance in the circulation of motor vehicles (approved by Royal Legislative Decree 8/2004, of 29 October), when it attributes liability to the driver of the motor vehicle for damage caused to property or persons due to traffic circulation, unless it is due to the exclusive fault of the injured party or to force majeure outside the vehicle, but not when it has its origin in defects of the vehicle or failure of its parts or mechanisms (which will not be considered cases of force majeure). On this distinction, see, for example, STS, 1st Chamber, 3/2015, of 4 February 2015, ECLI:ES:TS:2015:1044.
- 71.
STS, 1st Chamber, of 7 April 1965 (RJ 1965\211811).
- 72.
STS, 3rd Chamber, 4106/1995, of 11 July 1995 (ECLI:ES:TS:1995:4106).
- 73.
STS, 1st Chamber, 1321/2006, of 18 December (ECLI:ES:TS:2006:7792).
- 74.
Thus, for example, see G. Doménech (2021), p. 296, for the purpose of determining whether or not the application of Article 32.1 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, which excludes the liability of public administrations for damages caused by the operation of public services in cases of force majeure. Also, see Arruñada (2021).
- 75.
JUR 2021/242885.
- 76.
JUR 2021/304654.
- 77.
Also based on this publication by Vela Torres is the ruling of Court of First Instance No. 4 of Pamplona, 209/2021, of 15 October, Rec. 177/2001. It maintains that the COVID-19 pandemic is not a case of force majeure and condemns the defendant insurer to pay. However, this case is different from the others, as here it was demonstrated that the insurance had been contracted precisely to cover the risk of closure due to the pandemic, having been contracted after the first closure of establishments and in view of the possibility of another one occurring, as was the case.
- 78.
The publication by Vela Torres quoted in the rulings is “Los contratos de seguro y las circunstancias extraordinarias derivadas de las crisis sanitaria y económica”, Cuadernos Digitales de Formación, edited by the General Council of the Judiciary of Spain (CGPJ), 5/2021, but this thesis is also maintained identically in Vela Torres (2020), pp. 1006–1009.
- 79.
In fact, Vela Torres, who is the one quoted here in the rulings, literally assumes with regard to this issue (with explicit quotation) the opinion of a lawyer in a post published on the website of a law firm under the title “El contrato de seguro y el Covid-19: Análisis jurídico” (see https://www.dpglegal.es/es/noticia/el-contrato-de-seguro-y-el-covid-19-analisis-juridico/).
- 80.
The facts and the ruling of the Court of First Instance No. 1 of Mieres 8/2022, of 20 January, ECLI:ES:JPII:2022:1, are very similar.
- 81.
ECLI:ES:JPI:2021:1569.
- 82.
This makes it very clear that the coverage for property and business interruption insurance act in a complementary manner. It is therefore entirely logical that they should be included in a single multi-risk policy, so that there is total symbiosis between them. Moreover, the requirement of the property insurance that the damaged premises be rebuilt on the same site, for obtaining the part of the indemnity corresponding to the difference from new to old (replacement clause), fits in very well with the clause of the business interruption cover. This makes the payment of the total indemnity conditional on the resumption of the activity on the same site. Some companies explain very well to their potential policyholders the complementary nature of the indemnities that can be obtained through both coverages. This is the case of Allstate despite the bad reputation it has acquired for the use of non-risk factors in pricing of auto insurance. On this issue, see O’Neil (2016), p. 164 et seq. However, in relation to the subject under discussion here please see, https://www.allstate.com/tr/business-insurance/business-interruption-coverage.aspx.
- 83.
It should be recalled that one of the topics of the 2nd AIDA World Congress in 1966 was precisely the compatibility of expected profits insurance, “new for old” coverage and the valued policy with the principle of indemnity. See Materialien des Zweiten Weltkongresses für Versicherungsrecht, Hamburg, 28th July-2nd August 1966, 6 vols, II. “Die Gewinnversicherung, die Neuwertversicherung und die Taxe unter dem Blickwinkel des versicherungsrechtlichen Bereicherungsverbots”, Karlsruhe (VVW), 1967. But this fear of increased subjective risk is more historical than topical. In fact, in Germany, the repealed VVG 1908 provided in § 89.1 for the prohibition of the use of valued policies for the insurance of loss of profit [on this, see, for example, Langheid (1997), § 89, Rn. 2 et seq.], but this prohibition no longer exists in the current VVG 2007 and the agreed value can be used for loss of profit insurance, such as loss of profit due to business interruption [see Baumann (2008), I, § 1, Rn. 84; Armbrüster (2021), § 76, Rn. 2. and Brambach (2011), § 76, Rn. 3].
- 84.
On the scope of application of this rule, see Tirado Suárez (2010), p. 1447.
- 85.
- 86.
This dependence on the business activity differentiates it from insurance that cover expected profits from the use of an object. In business interruption insurance, as H. Möller (1980), II, § 53, Anm. 20, points out, the material damage only fulfils the function of triggering the interruption of the business activity.
- 87.
Annual turnover (AT) is defined as the following:
-
(i)
VC + FC + NP, in a profit-making company
-
(ii)
VC + FC − L, in a loss-making company.
Being:
VC: annual variable costs that disappear with the discontinuation of the business.
FC: fixed costs that are maintained, even if the business is interrupted.
NP: expected net profit at the end of the annuity.
L: expected loss at year-end.
If the enterprise has goods in stock, when calculating the gross profit (GP) in the difference method, these must be considered, as follows:
GP = AT – VC + FS − IS.
Being:
FS: stocks of goods at the end of the period
IS: stocks of goods at the start of the period.
See Consejo General de Colegios de Mediadores (CECAS), Manual del Mediador de Seguros, CECAS, 20th ed., s. l., July 2012, vol. II, pp. 407–408.
-
(i)
- 88.
- 89.
The average clause is included in the Spanish LCS in Article 30: “If at the time of the occurrence of the insured event, the sum insured is less than the value of the interest, the insurer will indemnify the damage caused in the same proportion in which it covers the insured interest”.
“By mutual agreement, the parties may exclude the application of the average clause, provided for in the preceding paragraph, in the policy or after the conclusion of the contract”.
This rule is not ius cogens, because its basis is not the principle of indemnity, but that of equivalence between premium and risk, and the insurer can perfectly well renounce the application of this rule, given that its derogation does not give rise to enrichment of the insured person, who will always see the indemnity limited by the amount of the damage and the sum insured.
In its judgment 612/2003, of 24 June 2003 (ECLI:ES:TS:2003:4402), the Supreme Court considered the application of the average clause made by the insurer in a case of underinsurance of a business interruption insurance to be appropriate.
- 90.
See, for example, the general conditions of the combined (multi-risk) insurance for business activities of Mapfre (MSE-079/01-10). “Article 18. Automatic cover.
Given that the Sum Insured for this cover is set on the basis of forecasts, the following system is established to correct any deviations that may occur:
-
1.
Automatic Cover: A margin is established as a possible excess over the Sum Insured fixed in the Specific Stipulations of the policy up to a maximum of 15% of this Sum Insured.
-
2.
In order for this automatic cover to be applicable, the Insured undertakes to update the values of the insurance each year.
-
3.
In the event of a claim, if the insurance values have been updated, the Insurer waives the application of the average clause derived from underinsurance provided for in the previous article, provided that the underinsurance noted does not exceed the percentage indicated above.
This automatic cover shall not apply if, in the event of a claim, it is established that the Gross Margin or the Permanent Expenses, as the case may be, declared in the last two expired annuities are lower than the actual ones”.
-
1.
- 91.
This partial waiver to the application of the average clause is analogous to the one usually foreseen in the coverage of damage to property when the clause of automatic revaluation of sums and premiums is present and whose validity also usually implies that the insurer tolerates underinsurance limited in percentage (of 10 or 15%, for example).
- 92.
- 93.
See the clarification of the Insurance Compensation Consortium, at https://www.consorseguros.es/web/preguntas-frecuentes/seguros-de-riesgos-extraodinarios/-/asset_publisher/PUFCb5ZFz1ue/content/-cual-es-la-franquicia-del-consorcio-?inheritRedirect=false.
- 94.
That is risks that affect small businesses, which are more or less standard.
- 95.
For example, in the ruling of the Court of First Instance of Lorca of 22 September 2021, cited above, it is stated that the policy provided the amount of 300 euros per day of stoppage with a deductible of two days as compensation for expected profits. As the establishment was closed for 58 days, the Court ordered the insurer to pay 16,800 euros, which was exactly the amount that corresponded to 56 days (58 minus the two-days deductible).
- 96.
In this sense, the judgment of the Court of First Instance No. 5 of La Laguna of 14 January 2022 is very correct. It does not directly condemn the insurer to pay all the compensation but requires proof of the damage actually suffered by the insured.
- 97.
See, for example, Mapfre, “Seguro combinado para actividades empresariales”, that is a multi-risk insurance for businesses (MSE-079/01-10), p. 62.
- 98.
A formula used by insurers when they cover damages due to interruption with the system of a specific amount per day (this was foreseen in all the policies that gave rise to the rulings discussed in this chapter) is the following:
Compensation = (D–F) × €/d × % P
This being:
D = days of downtime with the maximum of the contracted indemnity period
F = temporary deductible stipulated in the contract
€/d = indemnity per day as agreed in the policy
P = percentage of interruption foreseen in the claim.
As can be seen, by applying this formula, the daily compensation will be higher or lower depending on the degree of interruption actually suffered.
See Consejo General de Colegios de Mediadores (CECAS), Manual del Mediador de Seguros, p. 408.
- 99.
In this sense, the ruling of the Court of First Instance No. 11 of Zaragoza 334/2021, of 18 October 2021, states that “the closure of the catering establishments did not mean the total closure of the catering business, as delivery sales were maintained. This is an activity that is part of the logistics function whose purpose is to place goods, services, funds or information directly at the place of consumption or use (to the end customer), and it is not known whether the plaintiff adopted this measure or not, and if they did not do so, it is a personal decision”.
- 100.
First risk insurance is not expressly regulated in the LCS, but its legality is deduced from Art. 30, paragraph 2, where it is admitted that, by agreement of the parties, the average clause can be excluded. The insurance modality with exclusion of the average clause is par excellence first risk insurance. On this contract modality, see Mª L. Muñoz Paredes (2002), passim.
- 101.
- 102.
- 103.
In the general conditions of Segur-Caixa Adeslas (Mod: S.RE. 442/02 61), which establishes a first risk insurance for this cover, the need to prove the damage is insisted on and it is stated as follows: “4.2. Modality ‘Daily Indemnity’.
The amount to be compensated shall be established as follows:
-
(a)
In the event of total interruption of the activity, the amount agreed for this modality will be paid, subject to justification, for each working day of total closure of the insured establishment, the maximum amount resulting from multiplying the agreed daily compensation by the number of working days of stoppage with the limit established in the Specific Stipulations.
-
(b)
If the interruption is partial, the compensation shall be reduced by the same proportion as that by which the undertaking continues its activity.
-
(c)
The compensation shall not exceed the actual loss sustained by the insured.
The agreed amount is considered to be at first risk, and payable provided that there is proof of damage as a result of the insured event” (Underlining by the author of this chapter).
-
(a)
- 104.
Ruling 166/2021 (JUR 2021/242885).
- 105.
14th Section, Ruling 366/2020 (JUR 2021/25867).
- 106.
4th Section, Ruling 165/2021 of 18 May (JUR 2021/263376, ECLI:ES:APZ:2021:1288).
- 107.
It should be borne in mind that the compensation payable by the insurer in loss of profit insurance may be less than the damage suffered for several reasons. Among them, the most relevant are the following: (i) the existence of deductibles; (ii) underinsurance; (iii) breaches in the initial duty to declare the risk or that of communicating aggravations that give rise to the application of the equity rule and (iv) the fixing of a period of indemnity that is too short by the insured.
- 108.
Ruling which states (in summary) that if the business owners have received compensation from the Government for the losses resulting from closure, such aid, even if it does not cover all the damages, must be quantified when claiming insurance indemnities from the insurers.
- 109.
FCA: “Updated statement on non-damage BI settlements and deductions made for government support” (24/03/2021). “Assessing whether it is appropriate to make deductions: The insurer will need to assess this for some or all of each type of government support the policyholder received with a case by case assessment. The assessment should consider: -the exact type and nature of the Government support; -how the policyholder used this support; -the type of policy and its precise terms, including any set methodology for calculating the value of a claim set out under the relevant section of the policy. Some of these factors will be specific to the case and claim. Even where it is appropriate in principle to deduct these amounts, a single, uniform approach to deductions is still unlikely to be appropriate. Insurers are likely to need to consider individually the precise details of the policy, the claim and how the policyholder used the Government support. How Government support is treated for tax purposes may differ from the way it is treated for calculating the loss under a business interruption policy”. V. https://www.fca.org.uk/news/statements/updated-statement-non-damage-bi-settlements-deductions. See also Dear CEO letter on BI Insurance 22 January 2021, https://www.fca.org.uk/publication/correspondence/dear-ceo-letter-business-interruption-insurance-January-2021.pdf, p. 3.
- 110.
In Spanish, Dirección General de Seguros y Fondos de Pensiones (DGSFP). See http://www.dgsfp.mineco.es/es/Paginas/Iniciocarrousel.aspx.
- 111.
See Art. 12 Order ECC/2502/2012 of 16 November regulating the procedure for submitting complaints to the complaints services of the Bank of Spain, the National Securities Market Commission and the Directorate General of Insurance and Pension Funds, https://www.boe.es/buscar/act.php?id=BOE-A-2012-14363.
- 112.
On the possible ways of public-private collaboration for the coverage of pandemic-related damages, especially including business interruption damages, it is interesting to read the comparison provided by The Geneva Association in “Public-Private Solutions to Pandemic Risk. Opportunities, Challenges and Trade-offs”, https://www.genevaassociation.org/sites/default/files/research-topics-document-type/pdf_public/pandemic-solutions_brief_web.pdf.
It should be borne in mind that each legal system has its own peculiarities, as is the case in Spain with the Insurance Compensation Consortium (CCS), which, although it is not currently obliged to pay compensation for pandemics, does cover certain extraordinary risks (earthquakes, tidal waves, volcanic eruptions, among others) that are not covered by private insurers. Also, it is not to be excluded that its functions will increase in the future. In fact, in relation to the COVID-19 crisis, the CCS has already been called upon to facilitate the contracting of credit insurance, which had been threatened by the stoppage of business activity and the consequent increase in the risk of non-payment by customers in credit sales. This was because companies needed to limit their risks through reinsurers and these could not accept more risk to avoid continuing to assume very high claims for an indeterminable period of time. For this reason, through Royal Decree-Law 15/2020 of 21 April on urgent complementary measures to support the economy and employment (https://www.boe.es/buscar/act.php?id=BOE-A-2020-4554), the CCS was entitled (Art. 7) to accept in reinsurance the risks assumed by private insurance companies authorised to operate in credit and surety insurance branches, that was so requested. On this last issue, see P. Muelas García (2020).
- 113.
It should be noted that the general conditions of insurers operating in Spain have not so far included a specific exclusion for damages arising from pandemics, unlike in other markets, where such an exclusion had already been included after the SARS virus pandemic 2002–2004. This is the case, for example, in the US market, where a clause for the exclusion of damages arising from viruses or bacteria was introduced as early as 2006. On this clause and its interpretation, from the perspective of its application to the COVID-19 virus, see, e.g. R. H. Jerry (2021), pp. 485–524, especially 510 et seq.
- 114.
This clause and the information related to the introduction of exclusion of contagious diseases after the COVID-19 pandemic (as explained at the beginning of this chapter) has been provided to me by a broker. Anyway, this clause mimics the one issued by the Lloyd’s Market Association for use on property policies, which is known as LMA5393 and can be found at https://insurance-endorsements.com/lma5393-communicable-disease-endorsement-for-property-policies/.
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Appendices
Legislation
-
Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), OJ L 335 17.12.2009, p. 1. Consolidated text, v. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0138-20210630.
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Law 20/2015 of 14 July 2015 on the Regulation, Supervision and Solvency of Insurance and Reinsurance Companies (Ley española de ordenación, supervisión y solvencia de las entidades aseguradoras y reaseguradoras, LOSSEAR), https://boe.es/buscar/act.php?id=BOE-A-2015-7897
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Law 40/2015, of 1 October, on the Legal Regime of the (Spanish) Public Sector, https://www.boe.es/buscar/act.php?id=BOE-A-2015-10566.
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(Spanish) Civil Code, approved by Royal Decree of 24 July 1889 (Cc), https://boe.es/buscar/act.php?id=BOE-A-1889-4763.
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Law 50/1980, of 8 October 1980, on Insurance Contract (Ley española de Contrato de Seguro, LCS), https://boe.es/buscar/act.php?id=BOE-A-1980-22501.
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Royal Legislative Decree 7/2004, of 29 October, which approves the Legal Statute of the Insurance Compensation Consortium, https://www.boe.es/buscar/act.php?id=BOE-A-2004-18910
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Royal Decree 300/2004 of 20 February, which approves the Regulation of Extraordinary Risk Insurance, https://www.boe.es/buscar/act.php?id=BOE-A-2004-3373.
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Royal Legislative Decree 8/2004, of 29 October, which approves the Law on civil liability and insurance in the circulation of motor vehicles, https://www.boe.es/buscar/act.php?id=BOE-A-2004-18911.
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Royal Decree 463/2020, of 14 March, declaring a state of alarm for the management of the health crisis situation caused by COVID-19, https://www.boe.es/buscar/act.php?id=BOE-A-2020-3692
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Royal Decree-Law 15/2020, of 21 April, on urgent complementary measures to support the economy and employment, https://www.boe.es/buscar/act.php?id=BOE-A-2020-4554.
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Order ECC/2502/2012 of 16 November regulating the procedure for submitting complaints to the complaints services of the Bank of Spain, the National Securities Market Commission and the Directorate General of Insurance and Pension Funds, https://www.boe.es/buscar/act.php?id=BOE-A-2012-14363.
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(Deutsches) Versicherungsvertragsgesetz (VVG) 1908 (no longer in force).
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(Deutsches) Versicherungsvertragsgesetz (VVG) vom 23. November 2007 (BGBl. I S. 2631), https://www.gesetze-im-internet.de/vvg_2008/.
Documents
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Materialien des Zweiten Weltkongresses für Versicherungsrecht (AIDA), Hamburg, 28th July-2nd August 1966, 6 vols., II. “Die Gewinnversicherung, die Neuwertversicherung und die Taxe unter dem Blickwinkel des versicherungsrechtlichen Bereicherungsverbots”, Karlsruhe (VVW), 1967
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FCA, Dear CEO letter on Business Interruption (BI) Insurance-, 22 January 2021, https://www.fca.org.uk/publication/correspondence/dear-ceo-letter-business-interruption-insurance-january-2021.pdf
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FCA, Business interruption insurance - Policy checker, https://www.fca.org.uk/decision-tree/business-interruption-insurance-policy-checker
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FCA, “Updated statement on non-damage BI settlements and deductions made for government support” (24/03/2021), https://www.fca.org.uk/news/statements/updated-statement-non-damage-bi-settlements-deductions.
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The Geneva Association, “Public-Private Solutions to Pandemic Risk. Opportunities, Challenges and Trade-offs”, https://www.genevaassociation.org/sites/default/files/research-topics-document-type/pdf_public/pandemic-solutions_brief_web.pdf
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UNESPA, “Nota Técnica” on “Interrupción de Negocio”, 13 September 2021.
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Consejo General de Colegios de Mediadores (CECAS), Manual del Mediador de Seguros, s. l., julio 2012, vol. II, pp. 407-408.
Case Law
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The Supreme Court (UK) Judgment of 15 January 2021, The Financial Conduct Authority (Appellant) v. Arch Insurance (UK) Ltd and others, https://www.supremecourt.uk/cases/docs/uksc-2020-0177-judgment.pdf.
Rulings of the Spanish Supreme Court (STS):
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STS, 1st Chamber, 563/2021, of 26 July 2021 (ECLI:ES:TS:2021:3167)
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STS, 1st Chamber, 399/2020, of 6 July 2020 (ECLI:ES:TS:2020:2233)
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STS, 1st Chamber, 661/2019, of 12 December 2019 (ECLI:ES:TS:2019:3943)
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STS, 1st Chamber, 154/2018, of 20 March 2018 (ECLI: ES:TS:2018:952)
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STS, 1st Chamber, 402/2015, of 14 July 2015, ECLI:ES:TS:2015:3754
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STS, 1st Chamber, 3/2015, of 4 February 2015 (ECLI:ES:TS:2015:1044)
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STS, 1st Chamber, 1321/2006, of 18 December 2006 (ECLI:ES:TS:2006:7792).
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STS, 1st Chamber, 612/2003, of 24 June 2003 (ECLI:ES:TS:2003:4402)
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STS, 3rd Chamber, 4106/1995, of 11 July 1995 (ECLI:ES:TS:1995:4106).
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STS, 1st Chamber, of 7 April 1965 (RJ 1965\211811).
Rulings of the Spanish Provincial Courts (SAP):
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SAP Murcia, 1st Section, 78/2022, of 22 February 2022 (ECLI:ES:APMU:2022:68).
-
SAP Girona, 2nd Section, 254/2021, of 16 June 2021 (ECLI:ES:APGI:2021:487).
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SAP Girona, 1st Section, 59/2021, of 3 February 2021 (ECLI:ES:APGI:2021:13).
Rulings of the Spanish Courts of First Instance:
-
Court of First Instance No. 6 of Pamplona, 94/2022, of 18 March.
-
Court of First Instance No. 1 of Mieres (Asturias), 18/2022, of 20 January (ECLI:ES:JPII:2022:1).
-
Court of First Instance No. 5 of La Laguna (Tenerife), 17/2022, of 14 January.
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Court of First Instance No. 12 of Granada, 178/2021, of 13 December (ECLI:ES:JPI:2021:2532)
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Court of First Instance No. 1 of Tudela, 159/2021, of 25 October.
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Court of First Instance No. 11 of Zaragoza, 334/2021, of 18 October.
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Court of First Instance No. 4 of Pamplona, 209/2021, of 15 October (ECLI:ES:JPI:2021:1569).
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Court of First Instance No. 10 of Santander, 268/2021, of 8 October (JUR 2021/329501).
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Court of First Instance No. 5 of Alcalá de Henares, 170/2021, of 23 September (JUR 2021/329487).
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Court of First Instance No. 6 of Lorca (Murcia), 124/2021, of 22 September.
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Court of First Instance No. 5 of Ferrol (La Coruña) of 7 September 2021 (JUR 2021/329488).
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Court of First Instance No. 3 of Valencia, 287/2021, of 7 September.
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Court of First Instance No. 3 of Valencia, 260/2021, of 7 September.
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Court of First Instance No. 14 of Granada, 166/2021, 21 July (ECLI:ES:JPI:2021:547).
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Court of First Instance No. 3 of Jaén, 155/2021, of 29 June.
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Court of First Instance No. 3 of Huesca, of 26 April 2021.
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Court of First Instance No. 5 of Girona, 124/2021, of 12 March.
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Court of First Instance No. 2 of Girona, 311/2020, of 20 November.
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Court of First Instance No. 11 of Oviedo, 264/2020, of 19 November (ECLI:ES:JPI:2020:482).
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Note: Every Spanish ruling identified here by a ECLI code are available at https://www.poderjudicial.es/search/indexAN.jsp).
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Muñoz Paredes, M.L. (2023). Business Interruption Insurance and COVID-19: A Critical Analysis of the Jurisprudence and the Response of the Spanish Insurance Sector. In: Muñoz Paredes, M.L., Tarasiuk, A. (eds) Covid-19 and Insurance. AIDA Europe Research Series on Insurance Law and Regulation, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-031-13753-2_3
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