January 22, 2021 – Insurers continue to try to avoid negative judgments in a dispute with corona victims. One way is out-of-court settlements. The GDV sees the legal opinion of the industry as largely confirmed by the courts. Lawyers are critical of the figures.
Again the Allianz Insurance AG reached an agreement with a plaintiff who suffered damage due to the spring corona lockdown 2020 due to an officially ordered company closure. The plaintiff was Guido Al Duomo Gaststätten GmbHwho runs a fine restaurant in Munich and is covered by a business closure insurance (BSV).
Court sees insured event
On request, Allianz confirmed the settlement and thus the avoidance of a decision by the Munich District Court I (Az. 27488/20). Originally, a judgment was to be made on January 20th. Due to the settlement agreement, the insurance company is not allowed to give any details about the procedure.
The dispute was about 160,000 euros in damages, explained the plaintiff’s attorney, Dr. Günther Heinicke from the law firm Dr. Heinicke, Eggebrecht & Partner mbB. “In the almost two-hour in-depth discussion of the insurance conditions, the court came to the conclusion that there was an insurance claim here.” The lawyer represents other plaintiffs in BSV matters.
Allianz had already evaded a possible defeat in court on October 21 in another case. In the proceedings at the Munich Regional Court I (12 O 6496/20) she reached an out-of-court settlement with the operator of the “Paulaner am Nockherberg”.
Here too, the parties had agreed not to disclose the amount of the settlement payment. The plaintiff had claimed over 1.1 million euros (VersicherungsJournal 10/22/2020).
Alliance: incident decision
“The current decision cannot be transferred to other cases,” said an alliance spokesman. In all legal proceedings, it always depends on the individual case and in particular on the specific insurance conditions and the respective official order.
Although the insurer has now compared itself for the second time, it continues to insist that there is no insurance cover in its BSV contracts for hotels and restaurants due to Covid-19.
This is also supported by the current court decisions. “All twelve previous judgments affecting the alliance confirm our legal opinion,” said the spokesman.
Lawyer: Allianz wants to prevent negative “lighthouse decisions”
“The alliance follows a typical strategy in mass proceedings. It consists in preventing negative “lighthouse decisions” that could lead other affected parties to file a lawsuit, ”assesses attorney Philipp Sahm from the law firm Broad Burkhardt the strategy of the insurer.
The aim is to avoid policyholders who have been hesitant to feel encouraged by a decision that is positive for them to also complain themselves. It is uncertain whether this strategy will work. A total of around 200 customers have already sued the insurer, he confirmed.
At the same time, Allianz points out that over 60 proceedings have already been decided in favor of the insurer throughout Germany and “only a few against”.
GDV: Wrong picture through media
- Norbert Rollinger (Archive photo: Schmidt-Kasparek)
The published similar figures General Association of the German Insurance Industry eV (GDV). A total of 148 lawsuits and 65 judgments would have been reported to the association by January 19, 2021.
“Of these, 57 judgments were made in favor of insurers, six against insurers and two settlements,” said a spokeswoman. In addition, there would have been advisory decisions by the courts that would “mostly” support the legal position of the insurer.
The GDV criticizes the reporting in the media. “There were several public reports that David won,” said Dr. Norbert Rollinger, Chairman of the Presidential Committee on Risk Protection for Society and Economy at the GDV annual press conference.
Lawyers criticize association figures
It is not known how the selection of the proceedings at GDV was carried out. However, the association admitted that it does not know the total number of all proceedings pending in the BSV dispute.
In contrast, that counts Federal Association of German Insurance Brokers (BDVM) already nine judgments against the insurer. In addition, further positive judgments for the policyholders are expected from the Darmstadt Regional Court.
Lawyer Dr. Knut Pilz from the Law firm Pilz Wesser & Partner Rechtsanwälte mbB doubts that the GDV figures reflect reality. Pilz is also aware of more judgments in which the insurance companies have lost. Since the insurers tried to avoid negative judgments, the industry figures would not be meaningful.
Comprehensively reasoned judgments against the insurer
According to the Law firm Wirth – lawyers in partnership mbB the information from GDV would be “far too general”. It is not about quantity, but about class. “The judgments with the most extensive justifications come from Munich and Hamburg. They went against the defendant insurers, ”said attorney Norman Wirth.
- Mark Wilhelm (archive image: Schmidt-Kasparek)
The lawyer Dr. Mark Wilhelm of the Law firm Wilhelm Partnership von Rechtsanwälten mbB the numbers of the association “for not correct”.
“As expected, the decisions of the regional courts so far are very heterogeneous. The identical insurance conditions can currently be held at a regional court and declared ineffective at the next regional court, ”said Wilhelm.
He points out that policyholders can sue at the insurer’s registered office.
Wilhelm: “Before the Darmstadt Regional Court and the Munich Regional Court, where company closure insurers with many customers are based, policyholders prevailed. Here it can be expected that a large number of lawsuits will be successful. “
The dispute goes to the BGH
Basically, the entrepreneurs concerned would have to have a lot of staying power, because many proceedings would be appealed. “We assume that the Federal Court of Justice will view the conditions critically according to the principles it has developed,” predicted Wilhelm.
Therefore, companies can consider themselves lucky that have taken out corporate legal protection. This is likely to apply, for example, to the majority of the 80 or so companies in the sports and leisure sector that Hähnel Assekuranzmakler GmbH & Co KG with business closure policies.
Almost every company suffered major damage in the first lockdown. But almost all customers defend themselves against insurers who do not want to pay. Reason: The broker always offers the insurance contract legal protection. “Many customers are now happy about that,” said Hähnel.
900 million euros paid out
At least a number of insurers paid in full without going to court. Are full payers Barmenia General Insurance AG, Basler Sachversicherungs-AG, HDI Insurance AG, Signal Iduna Allgemeine Versicherung AG and the Munich Association of General Insurance AG.
Including the goodwill services of the hardliners, which are always at a low level, the industry has so far provided 900 million euros, according to GDV. The total premium income amounts to only 25 million euros. The division is thus in the red.