Nearly three years after the start of the Covid-19 epidemic, the insurer Axa saw the Court of Cassation confirm its refusal to compensate the operating losses suffered by restaurateurs during periods of administrative closure, while he spent 300 million euros to settle disputes amicably.
In judgments, the Court overturned a total of four decisions of the Aix-en-Provence Court of Appeal, three of which dated May 20, 2021, favorable to the companies Alpilles Events whose head office is in Mouriès, À La Bonne Franquette (Martigues), and Beraha (Marseille), in disputes between them and Axa. She also censured a decision of February 25, 2021, favorable to the Marseille company Le Phoenix.
The Court of Cassation referred the case to the “differently composed” Aix Court of Appeal, which will have to rule again. “There will be a new debate before the referring judge and this one can align or not align: he has a freedom of appreciation”, declared Didier Le Prado, who defended the four restaurateurs. “The decision is obviously favorable to Axa, but the debate is not closed, since it is a decision with referral”, he summarized.
Contacted, the Beraha and À La Bonne Franquette establishments did not wish to react immediately.
An exclusion clause
The highest French court has found valid the exclusion clause provided for in the “professional multi-risk” insurance contract taken out by these catering companies, on which Axa relied not to compensate for their operating losses due to administrative closures. ordered due to the Covid-19 epidemic.
These contracts cover the risk of operating losses following “an administrative closure ordered following a contagious disease, murder, suicide, epidemic or poisoning”. But a clause provides that the insured be deprived of the benefit of the guarantee, in the event that “another establishment is subject to an administrative closure measure for the same cause” as those listed.
For the Court of Cassation, this exclusion clause is indeed “formal and limited” and does not “have the effect of emptying the guarantee of its substance”, contrary to what the restorers argued, supported by several court decisions in first and second instance.
“Unexpected reversal of jurisprudence”
Axa immediately welcomed this “important” decision of the Court of Cassation, “which establishes the validity of (its) standard contract”, said the insurer in a statement. However, there are 50 other appeals before the Court of Cassation at present, said a spokeswoman for the insurance.
“Faced with the unprecedented legal situation, where the disagreement on both sides was in good faith and the first instance and appeal decisions were shared, we reached out to our insured restaurateurs in 2021 with an amicable financial solution” , continues the group. Axa had put on the table a global envelope of 300 million euros to compensate amicably 15,000 restaurateurs.
“Accepted by 80% of them, this outstretched hand has supported the resumption of activity in a context of exit from the Covid while strengthening the links between the restaurant profession and the distribution networks of Axa France throughout the territory. “, assures Patrick Cohen, general manager of Axa France, in this statement.
For his part, the lawyer specializing in insurance law Guillaume Aksil, counsel to some 400 restaurateurs, says he is “quite surprised” by an “unexpected setback in case law”, the Court of Cassation having “a tendency, in recent years, to invalidate the exclusion clauses of insurance policies when they lack clarity”. But “to my knowledge, seven Courts of Appeal (Paris, Lyon, Bordeaux, Agen, Pau, Reims, Angers) have validated this exclusion clause and five others have invalidated it (Bourges, Aix-en-Provence, Rennes , Toulouse, Poitiers), it is therefore good that it is not clear, ”he concludes.