The decision by the commercial court of Marseille on the 23rd of July 2020 was highly anticipated by the protagonists of the battle between restorers and insurers since the start of the health crisis. The Point was able to review the interlocutory order. A restaurateur based in the mediterranean city and salariant eight people had been assigned to Axa France so that the insurance company covers its operating loss related to the closure of the result of the pandemic of Covid. The court went in its direction, reasoning that the insurer was bound to pay to its participant to the sum of 66 385 € " as an advance against the compensation due under the contract ".
The company had taken out a warranty "loss of business due to the closure" when it is the result of " a pandemic ". Axa opposed to this clause, which is contained in the special conditions of contract insurance professional of the restorer, an "exclusion of risk", namely : "if, on the date of the decision of closure, at least one other institution, regardless of its nature and its activity, the object on the same territory county that the school provided a measure of closure for a cause identical ".
For the tribunal de commerce of Marseille, the guarantee subscribed by the conservator suffers no interpretation. "It follows that the exclusion clause cannot preclude the application of the contract of insurance the company [...] with the company Axa France Iard ", reads the decision.
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To cover losses for a period of three months, the allowance has been calculated in the following way : ((annual turnover – (expenses annual salary + expenses annual external))/12) x 3. The sum obtained was then multiplied by the profit margin, and it is thus that we obtain the result of 6 6 385 euros.
In fact, in France, 2.9 million businesses are covered by all risk policies professional ; 1.7 million of them have specific clauses covering operating losses in the event of damage (fire, explosion, etc). At the margin, there are contracts that cover the operating losses without damage. But now, there are thousands and thousands of contracts. "At a same insurer, you can have different contracts, because they are not the same channels of distribution..." says the administration. This opens the way to an outbreak of protests.
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hoteliers-restaurateurs are particularly engaged, since the beginning of the containment, against the insurance companies on the coverage of operating losses. In may, the Paris commercial court had given reason to a restorer in paris, Stéphane Manigold, who had been assigned to Axa France, before the two parties fail to choose the path of conciliation. This quadra is the holder of a contract different from that of the restaurateur of marseilles. The tribunal de commerce of Nanterre, to which the matter referred by five hotels, had condemned the insurer Albingia to pay their owner 450 000 euros of provisions to cover two months of operating losses, in the expectation of a detailed expertise.
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conversely, seized in summary proceedings, the president of the tribunal de commerce of Bordeaux had estimated in June, in a case brought by Axa always a conservator, that the clause at issue " if ousts a contradiction of reading and, therefore, analysis of the parties, it is not clear from the office of the judge hearing the application to decide ". Accordingly, the court considered that it was not appropriate to refer on the request for provisional compensation presented by the restorer, and was invited to fill in the background. In Lyon, in the case between Axa at the restaurant Bacchus and have to be judged on appeal, according to our information, the judge decided to postpone the hearing on 30 September, in front of the 3rd house, for a " moot court collegiate complex. "
An insurer, a large company, had estimated to the Point that, " the contracts at issue including, one would need to pay between 1 and 1.3 billion compensation for the operating losses of restaurants. This is equivalent to 25-30 % of the losses of the profession as a whole. "