OGH: Only business shutdowns due to Epidemic Act are insured

Mar 31, 2021 Benn-Ibler Rechtsanwälte

Insurers of epidemic business interruption insurance are generally only obliged to provide cover if the business was closed due to the Epidemic Act (Epidemiegesetz, EpiG). Closures under the COVID-19 Measures Act (COVID-19-Maßnahmengesetz) are not covered.

The plaintiff policyholder concluded a business interruption insurance contract with the defendant insurance company prior to the COVID-19 crisis, in which the "business closure due to risk of epidemic due to the Epidemic Act" was insured.

In the course of the COVID-19 crisis, the business of the plaintiff policyholder was initially closed on the basis of the provisions of the EpiG, but subsequently the ban on entry was based on the provisions of the COVID-19 Measures Act.

The plaintiff also demanded the agreed insurance benefit for the period during which there was a ban on entering the premises according to the COVID-19 Measures Act, which was also granted by the lower courts. However, the Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the insurer's appeal and dismissed the claim.

According to the OGH, initially only the de facto closure of the business is relevant. The epidemic did not have to be caused within the business and the occurrence of the epidemic in the business was not a prerequisite for insurance coverage. Therefore, there was in principle coverage for an ordered closure of a business under the EpiG.

With regard to the entry bans under the COVID-19 Measures Act, the OGH stated that the enactment of a new law alone did not necessarily mean that insurance coverage ceased. However, it had to be examined whether the new regulations had changed the risk. The legislator had made it clear that, on the one hand, entry bans under the COVID-19 Measures Act and, on the other hand, business closures under the EpiG were to be possible. The fact that both norms exist side by side suggests that they do not cover the same risk. Moreover, a ban on entry ordered under the COVID-19 Measures Act was already conceptually different from a closure of a business under the EpiG. It was to be noted that a closure of a business qualitatively represented a different risk than a ban on entering, so that it was irrelevant under which laws it was ordered, because only closures of businesses were covered by the insurance.

OGH 7 Ob 214/20a (24.02.2021)