Le deuxième plus important assureur d'Europe sanctionné. Axa a été condamné, jeudi 25 février, à indemniser un restaurateur marseillais pour ses pertes d'exploitation dues aux confinements et fermetures administratives en raison du Covid-19 par la cour d'appel d'Aix-en-Provence. C'est la première juridiction d'appel à statuer au fond sur ce type de litige dont sont saisies plusieurs autres cours.

"We will carefully study the reasons for the decision (...). We recall that this same contract is currently the subject of debate before several other appellate courts in the country", reacted Axa in a statement.

In August 2017, the restaurant "L'Espigoulier" had taken out a standard contract guaranteeing operating losses due to an administrative closure following an epidemic.

To justify its refusal to compensate its policyholders, Axa invoked a specific clause in its contracts excluding this operating loss guarantee "when at least one other establishment, whatever the nature and its activity, is subject to the same territory. departmental, an administrative closure measure, for an identical cause ".

According to the insurer, contracts of this type concern 15,000 restaurateurs in France.

"This exclusion clause must be deemed unwritten"

The procedures of restaurateurs holding this standard Axa contract have multiplied across the country.

At first instance, the courts ruled in some cases in favor of restaurateurs and in others in favor of the insurance group.

As the Marseilles Commercial Court had done, the Aix-en-Provence Court of Appeal considered that this exclusion clause should be set aside, its pure and simple application leading to "deprive of its substance the essential guarantee obligation ".

The Court of Appeal sees a confirmation that "this exclusion clause must be deemed unwritten", that is to say not to be taken into account, in the endorsement that Axa sent to its policyholders in the month of October. 

In this document, the insurer defines this time with precision the terms "epidemic", "epizootic" and "pandemic", to exclude the cover for operating losses resulting from an epidemic and a pandemic.

Interim compensation

The court of appeal ordered Axa to pay interim compensation to "L'Espigoulier", not only for the period of the first confinement but also for the periods of administrative closure in the fall.

The exact amount of operating losses will have to be assessed by an expert appraisal that Axa will have to implement within two months, subject to a penalty of 500 euros per day of delay.

Axa recalls in his press release that he "has been committed to supporting its customers as much as possible through numerous actions for nearly a year".

The insurer, present in 64 countries, unveiled on Thursday a net profit down 18% in 2020, a year marked by the pandemic, to 3.16 billion euros. 

Me Jean-Pierre Tertian, lawyer for the Marseille restaurateur, welcomes this first judgment of the Court of Appeal.

"It is time for this insurer to cease its dilatory resistance which is done to the detriment of its policyholders. By refusing to pay, the insurer is forcing the State and therefore the taxpayer to take its place through national solidarity".

With AFP

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