Many restaurateurs, such as chef Jean-François Piège, have been offered an amendment to their insurance contract indicating that they will no longer be compensated in the event of an epidemic in 2021.
A bad thing never comes alone. Closed since November 30, and this for the second time, some restaurateurs must now find a new insurer. The fault was an endorsement to their insurance contract that they refused to sign.
In a letter sent in October, the insured were offered the following choice: either they sign an endorsement which excludes any compensation in the event of an epidemic from January 1, 2021. Or they are no longer insured at all. A dilemma that the chef Jean-François Piège, insured by Axa, denounced on Twitter on November 11: “This is how @ AXAFrance’s solidarity is expressed in parallel with the institutional communication: after refusing to compensate us, Axa wanted us to sign an addendum which reduced our guarantees. We refused. I received this termination letter yesterdayHe wrote, attaching a photo of said letter.
The amendment in question, which Axa is not the only insurer to offer, indeed introduces a general exclusion clause: “The following are not guaranteed by this contract: costs, losses, operating losses and damage resulting from an epidemic, pandemic or epizootic, as well as costs, losses, operating losses and damage resulting from administrative measures, sanitary measures, total or partial closure or withdrawal of administrative authorization, impossibility, restriction or difficulty of access, which result therefrom. “ In the event of refusal to sign, the insured are terminated and must find a new insurer.
Many restaurateurs and hoteliers are also concerned, explains Mathieu Eychène, lawyer at Rondot, Eychène, Fréminville, which launched the Dartagnan.legal site in order to facilitate legal proceedings for professionals in the sector seeking compensation. If some of its customers refused to comply with this new clause, others “signed under duress», He indicates. And that is what his cabinet is trying to determine. “Insurance contracts are for a fixed term and the insurer may not renew it or make the renewal conditional on the signing of this rider.», He explains. “But we are studying the possibility of showing that, if some policyholders have signed this rider, this agreement was forced or that the insurer did not act in a fair manner, thus leading to questioning the validity of the rider.He continues. In other words, if the insurer has the possibility of imposing an endorsement, “the use of this option may be considered abusive“.
A need for clarity
For insurers, the need to create this rider is justified by a need for clarity. In a document dated June 23, the Prudential Control and Resolution Authority (ACPR) calls “professionals to review for the future the wording of all ambiguous contractual clauses and to specify the general architecture of contracts in order to clearly inform policyholders of the exact scope of their guarantees“. An instruction followed to the letter by the French Insurance Federation: “In 93% of contracts, the pandemic is not a reason for compensation. But there are around 7% of contracts with French restaurateurs in which the wording of the clause, which often simply referred to an ‘epidemic’, was open to interpretation.», Underlines its deputy general manager, Stéphane Pénet at Europe 1.
What clause is Stéphane Pénet talking about? It is found in insurance contracts covering epidemics; it excludes any compensation in the event of the administrative closure of several establishments in the same department. It is precisely this clause that prevents Jean-François Piège from being compensated, he who has four of his establishments under contract with Axa. The chief, however, launched an appeal to try to challenge this element of his contract and hopes that justice will prove him right as have done several commercial courts, including Paris, Marseille and Nanterre. In October, Axa was thus ordered to guarantee the financial losses caused by the confinement of two Marseille restaurateurs, by rejecting the exclusion clause. The French insurer appealed against its conviction by the Marseille commercial court, denouncing “Judicial confusion”.
But above all, for Jean-François Piège, the amendment to the contract imposed on him by his insurer is proof that this clause is not valid and that he should be compensated for the losses incurred in 2020. “They changed their contract because they do not assume their role of insurer, that is to say to insure us on what we have signed a contract on“, he fumed. And to conclude: “We restaurateurs are fighting for a question of survival. It is not to protect our profits, but to avoid dying ”.
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