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2023 | Buch

Insurance Developments in the Light of the Occurrence of the COVID-19 Pandemic Kapitel lesen Erstes Kapitel lesen

Covid-19 and Insurance

herausgegeben von: María Luisa Muñoz Paredes, Anna Tarasiuk

Verlag: Springer International Publishing

Buchreihe : AIDA Europe Research Series on Insurance Law and Regulation

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book offers a novel study on the impact of the Covid-19 pandemic on insurance from an international and comparative perspective. It assesses how insurance has to adapt to a new landscape, the effects of which will last over time and cut across all areas of the field. To avoid physical contact, digitalisation has accelerated dramatically, affecting insurance in all its phases: risk selection, underwriting, pricing and claims settlement. However, the effects of the Covid-19 pandemic go far beyond that. The extent to which a claim caused directly or indirectly by the virus is or is not covered by a given policy has been the subject of debate in many insurance branches.

The most litigated cases worldwide are those that concern damages resulting from business interruption due to restrictions enforced by the authorities in virtually every country. This book analyses the rulings (for and against the insured) that have already been handed down by courts in various jurisdictions (for example in the US, Latin America, Spain and Germany), in order to provide guidance to the parties in future lawsuits and also to guide the courts’ own responses.

This analysis extends to the measures that governments have taken in relation to insurance during the pandemic, as well as the changes that insurers have introduced in their general conditions to exclude coverage for the pandemic. This response is unsatisfactory, as the big question is how pandemic-related risks can be covered if private insurers simply refuse to do so. Solutions based on risk sharing with public entities or the use of contractual modalities such as parametric insurance are among those outlined by the authors.

The book was written by experts from academia and lawyers specialising in this field, and written for all those interested in the field of insurance: lawyers, judges, academics and legal professionals.

Inhaltsverzeichnis

Frontmatter
Insurance Developments in the Light of the Occurrence of the COVID-19 Pandemic
Abstract
The COVID-19 pandemic has accelerated the pace of evolution of insurance in many aspects and in relation to many sectors and insurance lines (e.g., health insurance, or cargo marine insurance, life insurance, business interruption insurance, travel insurance, etc.). Moreover, the occurrence of COVID-19 underlined the importance in the managing of pandemic risk. This chapter discusses the insurance developments in relation to the transformation of the insurance industry, not only, but mainly, due to the occurrence of the COVID-19 pandemic. There is also a discussion about the impact of the pandemic risk in the governance of insurance companies under Solvency II. Conclusions and forecasts on the way forward, as well as recommendations for the future of insurance in the light of the COVID-19 pandemic but also post-pandemically, are attempted.
Sara Landini, Kyriaki Noussia
Understanding Parametric Insurance: A Potential Tool to Help Manage Pandemic Risk
Abstract
Parametric insurance, sometimes called index-based insurance, refers to insurance policies where the insurer agrees to pay the insured a stipulated sum if a covered event reaches or exceeds a designated threshold on an index of values. The designated threshold is called a “parametric trigger.” One of the purported advantages of parametric insurance is its innovative approach to helping manage the risk of certain kinds of natural disasters and cataclysmic losses commonly thought to be “uninsurable.” Global pandemics such as COVID-19 fit within this category of cataclysmic events, which raises the question of whether parametric insurance might be used effectively to help manage pandemic risk. This chapter discusses the defining characteristics of parametric insurance, provides examples of parametric policies offered or sold in the past, and examines the advantages and disadvantages of parametric coverage. After exploring these topics, the chapter takes up the question of how parametric insurance might perform as a tool to transfer and distribute pandemic risk.
Robert H. Jerry II
Business Interruption Insurance and COVID-19: A Critical Analysis of the Jurisprudence and the Response of the Spanish Insurance Sector
Abstract
The closure of commercial establishments decided by Spanish authorities on several occasions between 2020 and 2021 as a measure to prevent the spread of the COVID-19 virus resulted in a flood of claims to insurers for damages resulting from business interruption. In Spain, the insurance covering those losses is a guarantee within a multi-risk insurance that also covers material damage to the premises and the right to compensation for loss of profits only arises if there is prior material damage. As a result, the insurers refused to pay and ended up being sued in court.
This chapter analyses: (i) the Spanish rulings that have been handed down in relation to these claims (a clear change of trend can be observed here); (ii) whether policyholders who have received government aid due to the temporary closure of their businesses should have their insurance compensation reduced (if they are entitled to receive it); (iii) the measures that insurers are introducing in their contracts and wordings to avoid being exposed to paying compensation for business interruptions resulting from pandemics in the future; and (iv) the position of the insurance companies’ association (UNESPA) and the Spanish government in relation to the future coverage of these damages.
María Luisa Muñoz Paredes
COVID-19 and Business Interruption Coverage in the United States: An Example of Judicial Regulation
Abstract
Insureds in the United States have initiated thousands of lawsuits for business interruption losses caused by the COVID-19 pandemic. This litigation shows the significant regulatory role of the judiciary in the United States. Courts have developed and apply rules for insurance policy interpretation and for good faith behavior of insurers addressing claims. Although in the past the state and Federal courts applying judicial regulation have reached a variety of results, the judicial response to the COVID-19 claims has been surprisingly consistent in favor of insurers. The great majority of decisions have held that pandemic-related closures are not covered because they were not the result of physical damage or loss of property. This chapter describes the current state of the law in the United States for business interruption coverage for losses due to the pandemic. It suggests that the relative uniformity of decisions may reflect judicial concern that pandemic losses could overwhelm the insurance industry and an implicit recognition that the government is already providing substantial relief to businesses. It then identifies some procedural differences between judicial and administrative regulation for these determinations which results in a focus on individual cases rather than historical context and national public policy concerns.
Jeffrey E. Thomas
American Exceptionalism: The COVID-19 Insurance Experience
Abstract
It was the best of times, it was the worst of times. Channeling Charles Dickens (from his A Tale of Two Cities), a legal observer might describe COVID-19 insurance coverage disputes in similar terms. Although U. K. and E. U. policyholders would hesitate to describe their Covid coverage situation as ideal, it has been close to the worst of times for U. S. policyholders, who have lost an astonishing 95 percent of business interruption cases in the U. S. national (“federal” in American-speak) courts with a near 80 percent loss rate in state courts.
The insurer win rate in the U. S. differs markedly from the more mixed picture in Europe, the U. K., and Canada. These jurisdictions have pursued an approach quite distinct from that of the U. S. The American experience to date not only reflects a jaw-dropping insurer win rate but also litigation volume and transaction costs far higher than in other judicial systems.
In this chapter, we examine the different approaches and their consequences, comparing the more collaborative approaches of Canada, the U. K., and E. U. with the more combative system dominating U. S. COVID-19 coverage battles. The comparison reveals substantial advantages of the collaborative approach, not only for policyholders and legal systems but also for insurance and risk management systems, even if at the cost of larger and more frequent payouts by insurers.
Erik S. Knutsen, Jeffrey W. Stempel
Business as (Un-) Usual
The Evolution of German Insurance Law and Especially Insurance Supervisory Law in the Time of COVID-19
Abstract
The advent of COVID-19 had tremendous effects in Germany, as elsewhere if not probably everywhere. However, the COVID crisis brought to light problems and solutions which may aid in the betterment of insurance in the future, and increased preparedness for future crises. The German discussions pertaining to the pandemic was much focussed—as was the case in many other countries—on the question of cover by business closure and business interruption insurance. While this question was especially salient, it was far from being the only legal problem raised by the crisis in insurance law. Additionally, the crisis brought to mind an ancient legal instrument: the clausula rebus sic stantibus, or in the particular German iteration the Wegfall der Geschäftsgrundlage. In Germany this was not given a brought field of application, since the legislator passed statutes that would alleviate certain policyholders and insurers in a very particular way. Beyond the question of timely performance, relayed time limits regarding court procedures, etc., several other insurance products were touched. While this was rather neglected in Germany and elsewhere, the Corona crisis also had significant effects for insurers in the realm of insurance supervisory law.
Jens Gal
Impact of COVID-19 on the Latin American Insurance and Reinsurance Market
Abstract
As elsewhere in the world, the Latin American region and its diverse economies have been heavily affected by the COVID-19 pandemic, and, particularly, by the different government measures adopted by each country. The region’s insurance and reinsurance markets have not been exempted from these effects, notwithstanding their less developed nature compared to the large world economies. The smaller extent of insurance coverage offered, the regulatory and legislative features of each country, and the uninsurable nature of the pandemic, are some of the aspects to be considered when studying the market in the region and, together with this, account for the impossibility of applying, in most cases, the caselaw criteria of the more developed markets in the Latin American region.
Martín G. Argañaraz Luque, Sebastian Bonina, Anthony Charles de Novaes da Silva
COVID-19 Treatment Refusal: Medical Liability Insurance in Greece in Light of the Oviedo Convention
Abstract
Amidst the Covid-19 pandemic, an increase has been observed in patients refusing medical treatment, hospitalisation and especially intubation, which can have detrimental effects on patients in a critical condition. This trend has caused great challenges to doctors and hospitals, which have the legal obligation to respect the patient’s right to self-determination, which dictates that the patient’s prior informed consent is a precondition for all medical treatment, albeit with strictly regulated exceptions, but at the same time have an ethical and statutory obligation to offer the best medical treatment available to save the patient’s life.
This chapter examines the issue of professional medical liability under such borderline Covid-19 refusal of treatment instances, and how refusal of treatment could impact professional liability insurance covers. The chapter aims to understand the nuances of informed consent, especially under the prism of Covid-19 patients refusing treatment; identify potential situations under this spectrum that give rise to professional liability; and outline how private professional liability insurance may provide coverage to doctors caring for Covid-19 patients who refuse treatment.
Alkistis Christofilou, Sofia Getimi, Sotiria Bouranta, Konstantinos Ntallas, Viktoria Chatzara
The Influence of Covid-19 on Life Insurance: Polish Market Perspective
Abstract
The Covid-19 pandemic has had a huge impact on the insurance industry, both from the perspective of local insurance markets and from a global perspective. How a pandemic has affected the insurance market in a jurisdiction depends not only on how that market has functioned from an economic and organizational perspective but also from a legal perspective. It depends on whether the legal regulations allowed a friendly and flexible approach to the manner of concluding insurance contracts, fulfilling information duties in relation to the customers of insurance companies, communicating with the customers, including the scope of loss adjustment. In this chapter, the authors focus on presenting legal regulations on the Polish insurance market. They discuss now the Polish law applicable to insurance market was prepared for the pandemic situation as well as the measures taken and the approach presented by the Polish insurance market supervisory authority at that time to the action taken by the market players and measures (...) etc.
Anna Tarasiuk, Bartosz Wojno
Impact of Covid-19 on Travel and Health Insurance
Abstract
The aim of this chapter is to analyze the impact of Covid-19 on the two types of non-life insurance most affected by the sanitary crisis: health insurance and travel insurance.
As freedom of movement was one of the more restricted rights during the pandemic, travel insurance turned out to be one of the most impacted products, giving rise to questions about the risks covered and the operating exclusions, the possible non-performance of insurance contracts, or the treatment of premiums paid by customers. In addition, in the case of the travel insurance sector, many of the problems revealed by the Covid crisis were not entirely new but already long-standing, as will be addressed in this chapter.
On the other hand, given that the pandemic constitutes a health crisis, health insurance has been undoubtedly one of the insurances where the consequences of the pandemic have been most felt. Considering that issues arising from the performance of these products were nonetheless fewer than those arising from other products, the chapter aims to explain the main reasons for this and to analyze the problems that still have been observed in the market with regard to these insurances and that are still pending resolution.
Covadonga Díaz Llavona
The Impact of the Covid-19 Pandemic on the Sports Industry and Sports Insurance: Case of Novak Djokovic and Australian Open Tennis Tournament 2022
Abstract
The COVID-19 pandemic and the restrictions imposed by governments around the world to limit the propagation effect of a virus outbreak have caused severe economic consequences and business interruption in relation to the affected party’s ability to perform its contractual obligation. The entire sports industry in the EU has been impacted by the COVID-19-related measures and many sporting events have been suspended, postponed or cancelled entirely at international, regional and national levels. Sports federations and organizers of sporting events at grassroots and professional level have been unable to perform their duties and to fulfil their contractual obligations to sponsors, media and other contracting parties. Additional problem was lack of business interruption insurance for sports or event cancellations insurance. In spite of various predictions of medical researchers and virologists about the course of the pandemic, coronavirus outbreak continues to spread at the regional and global levels. This creates uncertainty and it will continue to have drastic economic impact on sporting events, sports contracts and sports insurance. Disputes as outcome of the COVID-19 pandemic will certainly rise, including complex negotiations and sports arbitration focusing on the application of concept force majeure in cases where circumstances have changed due to unforeseen and unavoidable events, which interrupt performance under a contract.
This chapter discusses the scope of the legal institute of changed circumstances on the performance of contract as grounds for relief from contractual liability in sports under Austrian law and the role of insurance to provide adequate insurance coverage for sport event organizers and their stakeholders for losses arising from COVID-19 pandemic.
Katica Tomic
Directors and Officers Insurance and COVID-19: Future Exclusions with Retroactive Application
Abstract
The claims-made clause is often not understood by policyholders in general and consumers in particular. Aggravating this situation is the fact that some insurance companies have incorporated an exclusion of future coverage with retroactive application. We understand that said clauses are abusive and absolutely null and void since they violate fundamental legal principles and—among others—reasonable expectations, transparency, and good faith.
Waldo Sobrino
Metadaten
Titel
Covid-19 and Insurance
herausgegeben von
María Luisa Muñoz Paredes
Anna Tarasiuk
Copyright-Jahr
2023
Electronic ISBN
978-3-031-13753-2
Print ISBN
978-3-031-13752-5
DOI
https://doi.org/10.1007/978-3-031-13753-2

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