A bar in the vicinity of Pamplona will receive 258,071 euros from its insurer as compensation for the different periods during which it was forced to close during the pandemic. This has been ruled by the Court of First Instance number 9 of Pamplona, which certifies that in the particular conditions of the damage insurance policy it was not specified for which cases of forced closure the establishment would be financially compensated, so that it understands that the closures motivated by the pandemic must be taken into account as part of the lost profits. This is the highest compensation in Spain for judicial rulings of this nature, according to the lawyer for the local hotelier.
The bar in question, which prefers to remain anonymous, took its insurer to court for a claim related to the damage insurance it had contracted for seven years.
The establishment maintained that its contract should also take into account the losses generated as a result of the restrictions approved to stop the spread of covid-19 during different periods of 2020 and 2021, since the policy is not limited to certain assumptions.
This is how Javier Goldaracena Catalán, a lawyer for the establishment, explains it: “The court understands that when you have contracted for lost profits or loss of profits and it is not specified that this lost profit is due to theft, fire or flood, it is understood which also includes the pandemic. Basically, it highlights that the policy is not limited to certain cases, so that it can also cover the consequences of the restrictions during the pandemic. There is a pro-insured principle that states that any obscurity in the clauses favors the insured”.
The court indicates, in fact, that these cases are not limited in the particular conditions of the policy and, at the same time, indicates that there is no evidence that the general conditions, in which these cases are limited, were delivered to the insured.
“It is the obligation of the insurance company that the general conditions are delivered to the insured, as the Supreme Court has indicated. It has not been proven that they were delivered, and these assumptions are not included in the particular conditions. The court understands that the client had the expectation that in the event of any event that made him lose money, the policy would cover him ”, he indicates.
The court ruling also dismisses the arguments of the insurance company, which argued that the damage had been caused by the Administration, which forced the aforementioned restrictions.
"The mere fact that the insured affected by the acts and provisions of the Public Administration can exercise the actions that he is assisted to demand the responsibility of the State, does not exclude that he can exercise the direct action that corresponds to him against the insurer with whom he has hired. In any case, if the insurer understands that the responsibility of the State can be demanded for the damages that it may have caused to its insured when establishing the closure of the insured activity, in accordance with the provisions of article 43 of the Insurance Contract Law , "once the compensation has been paid, you may exercise the rights and actions that correspond to the insured by reason of the accident against the persons responsible for it, up to the limit of the compensation", it states verbatim.
Goldaracena points out that this is the largest compensation that an insurer has had to pay to a hotel establishment due to the pandemic, a record that until now was held by a local hotel in Mallorca. Then, the courts forced the insurer to pay him 97,634 euros.
When calculating the amount, those 258,071 euros, the general expenses for the years 2020 and 2021 have been taken into account. That is, the expenses of rent, personnel, water or electricity. The daily expense has been calculated and, finally, it has been multiplied by the number of days in which the total closure of the hotel industry was decreed.
The sentence states that the days of total forced closure were 134 in 2020 and a total of 80 in 2021.
The insurance company may still appeal this judgment.
