Is it a real victory for restaurateurs in the fight against insurers, or just an isolated case?
Since the start of the health crisis, several of them have taken legal action against the insurer AXA, in order to obtain compensation for their operating losses following their administrative closure.
Thursday February 25, a Marseille restaurateur, owner of the
L'Espigoulier
establishment
,
won the case before the Aix-en-Provence Court of Appeal.
This is the first decision rendered on appeal since the start of the health crisis.
“
On March 15, the day of their first administrative closure, all restaurateurs filed a claim with their insurer,
” says Maître Jean-Pierre Tertian, lawyer for the Marseille restaurant owner.
According to a survey carried out by ACPR, the insurance gendarme, in June, only 7% of business interruption contracts in France provided for compensation in the event of a pandemic.
In total, 4% of these contracts were marketed by the insurer AXA.
In these contracts, an operating loss guarantee was provided for in the event of an administrative closure, only if two conditions were met: the closure had to take place on the order of the authorities, and that it be motivated by a contagious disease, intoxication, murder, suicide or an epidemic.
“
The restaurateurs concerned by this contract logically expected to be compensated by AXA,
” explains the lawyer for the owner of
L'Espigoulier
.
But at that time, unlike the insurers of the remaining 3% of contracts, AXA asserts to its policyholders a guarantee exclusion clause in the contract, asserting that "
when at least one other establishment, whatever the nature of its activity, is the subject on the same departmental territory, of an administrative closure measure, for an identical cause
”, the guarantee does not apply.
Concretely, for the restaurateur, this means that "
if it is closed due to an epidemic, and that its neighbor is also, it cannot be compensated
", illustrates Master Jean-Pierre Tertian.
Read also: Coronavirus: why chef Stéphane Jégo wants to charge insurers
This raises an important point: the definition of the term "epidemic", which is not indicated in the contract.
"
We are in a case where when these contracts were drafted, no one thought about the probability of a pandemic emerging
", defends Stanislas Di Vittorio, CEO of Assurland.com, insurance comparator.
Thus, the interpretation of this clause can be broad.
"
The company Axa explains that it only guarantees the epidemic internal to the restaurant or isolated
", reports the lawyer of the Marseille restaurant owner.
Last September, Eric Lemaire, Axa spokesperson, had also explained to the microphone of Europe 1 that the insurer could not “
cover the pandemic risk, because it would be too important financially.
"
What does the Aix-en-Provence Court of Appeal say?
From there, several actions were brought to justice by the managers of establishments concerned by these contracts.
In total, about "
a hundred actions have been brought since the first administrative closure
" by restaurateurs, says Maître Emmanuel Boukris, lawyer in business law.
Even if some commercial courts agree with AXA, the decisions rendered at first instance are mostly favorable to restaurateurs.
Among them, the case of Stéphane Manigold, who obtains the condemnation of AXA to compensate him by the commercial court of Paris at the end of May.
And to all these decisions, the insurer AXA decides to appeal.
The decision rendered by the Aix-en-Provence Court of Appeal confirmed that of the Marseille Commercial Court in October, which ordered AXA to compensate the owner of
L'Espigoulier
for its operating losses caused by the two confinements, up to around 60,000 euros.
For this, the court ruled that the exclusion of guarantee clause carried by AXA was “
unwritten
”, therefore illegal, because its application would amount to “
depriving of its substance the essential guarantee obligation
”.
This decision brings two lessons: “
when a contract is interpreted, the interpretation must always be in the interest of the insured;
and the definition of the term 'epidemic' must be generalized
”, reports Maître Jean-Pierre Tertian, that is to say that the epidemic mentioned in the contract includes that of Covid-19.
In reaction, the insurer AXA claims to regret the trouble that this famous guarantee clause may have caused in the event of an epidemic: "
We can only regret the confusion surrounding this subject of operating losses
", specifying that "
l The existence on the market of many contracts of different wording can certainly contribute to this confusion.
"In addition, the company insists on the fact that"
it has never been our intention to cover the consequences of an event such as the one we are experiencing today
"and pleads for"
new solutions
to be found. "
insurance policies in partnership with the public authorities.
"
A “snowball effect” to be expected?
The lawyers interviewed by Le
Figaro
believe that the next decisions that will be rendered by other courts of appeal should follow the conclusions of that of Aix-en-Provence.
And this because "
it is not an innocuous decision
", since this court of appeal "
is the second in France after that of Paris
", specifies Master Jean-Pierre Tertian.
"
This is very good news,
" confides his colleague Maître Emmanuel Boukris, who is also confident about the next judgments that will be rendered by the other courts of appeal.
And in addition to future court decisions, “this
is a turning point for restaurateurs, because it offers them one more argument to suggest that AXA resolve these disputes amicably.
"
Read also: The war rages between restaurateurs and insurers
But if this decision represents a turning point in the fight against AXA according to the lawyers, they specify that this decision does not act as case law.
A point also raised by the insurer: “
This judgment is only a first decision of a court of appeal and applies only in the jurisdiction covered by the Court of Appeal of Aix-en-Provence .
We recall that our contract is currently the subject of debates before several other appellate courts.
"Asked about its willingness to appeal, the company AXA insists that it will"
first of all carefully study the decision rendered today to determine what action to take.
"
