‘Tsunami’ of legal certainty, now insurers must pay up

Short-term insurers now have a “tsunami of the legal certainty” around business interruption insurance claims linked to the Covid-19 pandemic and need to pay up.

That’s the word from the Federated Hospitality Association of South Africa (Fedhasa), an umbrella body that represents hotels, restaurants and other hospitality businesses.

Rosemary Anderson, Fedhasa’s national chairperson, has called on insurers to “do the right thing” and settle such claims in full, following yet another loss for insurers – this time in the UK Supreme Court.

The court on Friday ruled in favour of claimants in a precedent-setting test case that was brought by that country’s Financial Conduct Authority (FCA).

The outcome is noteworthy for South Africa, especially considering that the landmark Café Chameleon vs Guardrisk High Court case was cited in earlier proceedings of the UK case.

Read: Massive Covid-19 blow for insurers: Guardrisk loses Supreme Court appeal

South Africa’s own financial watchdog – the Financial Sector Conduct Authority (FSCA) – has also been keenly watching the UK test case. However, Guardrisk losing its appeal against the Café Chameleon High Court judgment at SA’s Supreme Court of Appeal (SCA) in December set a local precedent in Covid-19-related business interruption insurance court battles.

Fedhasa noted in a statement issued on the weekend that the UK and South African supreme court rulings “support [the] validity of policyholders’ business interruption insurance claims”. The association reiterated calls that it has been making since last year for insurers to settle such claims, especially for the embattled tourism and hospitality industry.

“If legal certainty is what the insurers needed for their reinsurers to extend support, then certainly this has been achieved,” said Anderson.

“In both the cases in the UK and South Africa, it is clear the courts have ruled in favour of policyholders.

“Any delays [in payment] would seem to be no longer as a result of insurers requiring legal certainty,” she adds.

According to Fedhasa, the UK Supreme Court ruling unanimously dismissed all insurers’ appeals. However, the court did allow all of the FCA’s four grounds of appeal, with qualifications attached to two of the four.

“This last ruling is one of several, which have ruled in favour of policyholders and confirmed that government’s imposition of a lockdown in response to multiple outbreaks of a notifiable disease [Covid-19], was covered by the insurers’ infectious diseases clause,” it noted.

A step closer to settlement

Anderson points out that while the UK judgment may be geographically distant to the situation on the ground in South Africa, it does provide further compelling evidence that beleaguered hospitality businesses with outstanding business interruption claims are a step closer to having these settled.

“It couldn’t have come sooner with amended Level 3 restrictions and a second surge in Covid-19 cases all but decimating an already devastated sector,” she says.

“We hope that with this additional legal certainty, insurers will recognise and swiftly act on their responsibilities to their hospitality customers who have been faithfully paying their premiums for all these years …

“We will not easily forget the way our industry has been treated by insurers, which are household names,” she adds.

“In fact, the statement by one UK Supreme Court Judge, Lord Briggs, in handing down judgment is a clear indictment against insurers’ business interruption policies, which he says appear to have been ‘clearly contrary to the spirit and intent’ of the cover that hospitality businesses secured to protect themselves against the effects of a national pandemic type of notifiable disease.”

On the local front, Hollard and Guardrisk agreed to pay out such claims a few weeks after the Café Chameleon SCA ruling.

Earlier this month, Santam also agreed to pay out such claims. However, the group has limited settlements to a three-month indemnity period and is appealing a separate business interruption insurance case at the SCA involving Ma-Afrika Hotels.

Old Mutual Insure is yet to comment on any new settlements of such claims, while Bryte Insurance revealed in a letter to clients last week that it would be looking into settling claims now.