Corbin & King: AXA decides against appeal
AXA has recently confirmed that it will not be appealing the ruling in the case brought by Corbin & King which sought to clarify the operation of ‘Non-Damage Denial of Access’ clauses for claims arising from the pandemic.
Stuart Dobbins explains the outcomes of this ruling and what the judgement could mean for policyholders:
^ Stuart Dobbins, Technical Claims Manager at Romero Insurance Brokers
What was the Corbin & King case?
The restaurant chain Corbin & King raised legal action against AXA in the High Court. They wanted to clarify their policy’s ‘Non-Damage Denial of Access’ clause which would respond to losses caused by the closure of their business during lockdown. This type of cover generally suggested that it would respond to losses incurred as a result of an incident in the nearby area.
A previous case brought by the Financial Conduct Authority (FCA) had ruled almost completely against coverage for this type of extension, stating that said coverage was in place solely to respond to specifically local events. Local events include incidents such as road closures, gas leaks – not a global pandemic. However, a subsequent case in the Supreme Court suggested that there might be scope for challenging this position, and it is on this basis that Corbin & King brought their own proceedings.
Ultimately, the case was found in favour of Corbin & King. The court confirmed AXA’s policy should pay claims under the ‘Non-Damage Denial of Access’ extension. The judgement also instructed AXA to pay claims per location affected. This was a huge change from the insurance industry’s general stance where policyholders could only claim ‘per policy’ and not ‘per business location’.
What does the judgement in Corbin & King mean for policyholders?
Firstly, the good news. The judgement in this case means that those businesses who were insured under the same policy wording as Corbin & King should see their claims being considered. AXA’s website has now been updated to state:
“All policyholders whose policy includes the “danger or disturbance” clause as an operative cover and who have previously made a claim will receive a letter explaining what they need to do if they wish to pursue their claim.”
As such, we expect to receive further information from AXA as to how they will be dealing with these cases, although we have already written to them on behalf of all our clients whose policy conforms to the ‘Corbin & King version’.
What does the judgement in Corbin & King mean for future insurance policies?
Indeed, the AXA policy that was tested in the High Court appears to have been fairly unusual in its construction, therefore to assume that this opens the floodgates on ‘similar but different’ wordings may be incorrect.
Any clients that have a ‘Non-Damage Denial of Access’ clause in their own policy need to wait for further advice to be passed down by insurers. Needless to say, we have already approached each insurer that carries this type of extension. But insurers are already on the defensive; QBE, for example, has provided a detailed reasoning as to why they believe that their own ‘Non-Damage Denial of Access’ clause does not respond to claims arising from COVID-19.
On the question of multiple venues being insured under the same policy, the judgement seems very positive. The judgement in ‘Corbin & King’ makes a great deal of reference to ‘composite’ policies that cover ‘multiple assureds’; effectively meaning policies which cover multiple parties under multiple guarantees. However, no reference is made to individual premises until the very last paragraph. This could possibly mean there is a difference between one policyholder with multiple premises versus one policyholder with a policy including different headings and sections referring to different trading styles. It’s clear much is still left to be argued and determined.
What happens now?
There is still much to consider in light of the ruling in this case. At Romero Insurance Brokers, we have approached all the relevant insurers for direction on how their coverage might respond given these legal developments, and we will be keeping policyholders updated once more news is available.
It should also be noted that another case, being brought by the Stonegate Group, is being heard in June, and this will be seeking additional clarification on the issue of multiple venues being insured under the same policy. More clarity on this question is expected to follow and we await developments accordingly.
We’ll check back in with Stuart in June for another update on insurance policy clarifications and the potential ramifications for policyholders.
More from Stuart Dobbins
Stuart has also spoken on a number of other hot topics recently which could be affecting your business. He has illustrated the importance of understanding your PPE responsibilites, as well as co-authoring a whitepaper and speaking on a podcast about the dangers of being underinsured.