A bad thing never comes alone.
Closed since November 30, and this for the second time, some restaurateurs must now find a new insurer.
The fault was an endorsement to their insurance contract that they refused to sign.
Read also: Angry, restaurateurs will have to wait another two months
In a letter sent in October, the insured were offered the following choice: either they sign an endorsement which excludes any compensation in the event of an epidemic from January 1, 2021. Or they are no longer insured at all.
A dilemma that the chef Jean-François Piège, insured by Axa, denounced on Twitter on November 11: "
This is how the solidarity of @ AXAFrance is expressed in parallel with the institutional com: after refusing to compensate us, Axa wanted us to sign a rider which reduced our guarantees.
We refused.
I received this letter of termination yesterday,
”he wrote, attaching a photo of said letter.
The rider in question, which Axa is not the only insurer to offer, indeed introduces a general exclusion clause: "
The following are not guaranteed by this contract: costs, losses, operating losses and damage resulting from an epidemic, pandemic or epizootic, as well as costs, losses, operating losses and damage resulting from administrative measures, sanitary measures, total or partial closure or withdrawal of administrative authorization, the impossibility, restriction or difficulty of access resulting therefrom.
»
In case of refusal to sign, the insured are terminated and must find a new insurer.
Many restaurateurs and hoteliers are also concerned, explains Mathieu Eychène, lawyer at Rondot, Eychène, Fréminville, which launched the Dartagnan.legal site in order to facilitate legal proceedings for professionals in the sector seeking compensation.
If some of his clients refused to comply with this new clause, others "
signed under duress,
" he says.
And that is what his cabinet is trying to determine.
“
Insurance contracts are fixed-term and the insurer may not renew it or make the renewal conditional on the signing of this rider,
” he explains.
"
But we are studying the possibility of showing that, if some policyholders have signed this rider, this agreement has been forced or that the insurer has not acted in a fair manner, thus leading to question the validity of the rider.
He continues.
In other words, if the insurer does have the possibility of imposing an amendment, “
the use of this option may be considered abusive
”.
A need for clarity
For insurers, the need to create this rider is justified by a need for clarity.
In a document dated June 23, the Prudential Control and Resolution Authority (ACPR) indeed calls "
professionals to review for the future the drafting of all ambiguous contractual clauses and to specify the general architecture of contracts. in order to clearly inform policyholders of the exact extent of their guarantees
”.
An instruction followed to the letter by the French Insurance Federation: “
In 93% of contracts, the pandemic is not a reason for compensation.
But there are around 7% of contracts with French restaurateurs in which the wording of the clause, which often simply referred to an 'epidemic', was open to interpretation,
”underlines its deputy general manager, Stéphane Pénet with Europe 1.
What clause is Stéphane Pénet talking about?
It is found in insurance contracts covering epidemics;
it excludes any compensation in the event of the administrative closure of several establishments in the same department.
It is precisely this clause that prevents Jean-François Piège from being compensated, he who has four of his establishments under contract with Axa.
The chief, however, launched an appeal to try to challenge this element of his contract and hopes that justice will prove him right as have several commercial courts, including Paris, Marseille and Nanterre.
In October, Axa was thus ordered to guarantee the financial losses caused by the confinement of two Marseille restaurateurs, by rejecting the exclusion clause.
The French insurer appealed against its conviction by the Marseilles commercial court, denouncing
"judicial confusion"
.
But above all, for Jean-François Trap, the amendment to the contract imposed on him by his insurer is proof that this clause is not valid and that he should be compensated for the losses incurred in 2020. “
They have changed their position. contract because they do not assume their role insurer that is to say make sure of that over which signed a contract
"
,
he thundered.
And to conclude:
“We restaurateurs, we are fighting for a question of survival.
This is not to protect our profits, but to avoid dying ”
.
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