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La société d’avocats Damy

La Société d'avocats Damy à Nice assure une prestation de haut niveau, de la consultation d’un avocat à la représentation en justice. Les avocats du cabinet sont compétents en droit des affaires, des sociétés, droit immobilier, droit bancaire, droit social, droit des victimes et cas de dommages corporels. Membre de l’Association des avocats praticiens en droit social, Maître Grégory Damy dispose de certificats de spécialisation.  

In five decisions handed down on September 17, 2020, the Paris Commercial Court ordered the insurance company AXA to compensate several restaurant owners for their operating losses resulting from their administrative closure.

AXA refused any compensation, like many other insurers.

For the layman, reading the contracts can be perplexing and of course AXA refused to cover the loss using an exclusion clause.

The judges were not mistaken and gave the restorers the benefit of their case.

These decisions show that we were right to summon the insurers and that businesses must not give up this fight.

As specialist lawyers, we propose to study insurance contracts free of charge to indicate whether cases will be able to thrive before the courts.

Concerning the cases judged in September 2020, the contracts mentioned that operating losses following administrative closure are covered.

However, since 15 March 2020, in application of the order of 14 March 2020 on various

measures to combat the spread of the covid-19 virus, the restorers had been forced to close their establishments to the public.

The specific terms and conditions of the AXA France IARD professional multi-risk insurance policies included an extension of the "loss of business interruption following administrative closure" cover worded as follows:

"Coverage is extended to operating losses resulting from the total or partial temporary closure of the insured establishment, when the following two conditions are met:

1. The decision to close has been taken by a competent administrative authority, external to the insured person.

2. The decision to close is the consequence of a contagious disease, a

murder, suicide, epidemic or intoxication. »

It should be noted here that the epidemic is defined in the Academy's dictionary as follows

French, as follows :

"Appearance and spread of a contagious disease which affects at the same time, in a given region, a large number of individuals and, by metonymy, this disease itself. »

The ministerial order of 14 March 2020 enjoining the closure of "places open to the public that are not essential to the life of the nation" was issued as part of the fight against the spread of the covid 19 virus.

The spread of the covid 19 virus, in view of its speed and development within the population, but also of the measures taken in the fight against this spread, undeniably falls within the definition of an epidemic.

Consequently, the decision to close down imposed on French companies was indeed the consequence of an epidemic.

In an attempt to escape its obligations, the insurance company AXA France IARD invoked a contractual exclusion clause that would be applicable to the epidemic risk.

To be enforceable, such a clause must be drafted in clear and precise terms that do not call for equivocation.

Moreover, the exclusion clause must be limited, which means that it must perfectly circumscribe the guaranteed risk and not be general.

In the present case, however, the disputed clause was neither formal nor limited since it was neither clear and precise nor general.

Worse still, the interpretation that AXA FRANCE IARD intended to make of it emptied the guarantee granted of its substance.

Indeed, the exclusion of warranty clause invoked by AXA FRANCE IARD was worded as follows:

"The following are excluded:

- Operating losses, when, at the date of the decision to close, at least one other establishment, whatever its nature and activity, is subject, on the same departmental territory as that of the insured establishment, to an administrative closure measure, for an identical cause. »

According to AXA FRANCE IARD, this exclusion clause was applicable to the epidemic risk.

This interpretation would have led to emptying the underwritten guarantee of its substance and would therefore have the effect of neutralising the disputed clause.

However, under Article L.113-1 of the Insurance Code, the Cour de cassation (French Supreme Court) has ruled that exclusion clauses which have the effect of rendering the guarantee null and void are invalid:

In so ruling, without investigating whether the exclusion provided for in the general terms and conditions of the contract did not deprive the professional liability guarantee subscribed to by (the repairer) for his activity of "repair at home or at the address of risk" of any object,

The Court of Appeal deprived its decision of a legal basis under Article L. 113-1 of the Insurance Code. » 

(Civ. 2 nd , 20 March 2008, n°06-11763)

The same solution was adopted when the exclusion clause rendered the extension of the guarantee meaningless:

"That in so ruling, while the exclusion stipulated emptied

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