The most recent judgment handed down within the spate of current Covid-19 enterprise interruption (BI) instances is PizzaExpress Group Restricted & Ors v Liberty Mutual Insurance coverage Europe SE & one other [2023] EWHC 1269 (Comm).
The judgment is in respect of a preliminary challenge regarding the building of provisions referring to coverage limits. The Pizza Categorical restaurant group (collectively Pizza Categorical) claimed for round £260 million in enterprise interruption (BI) losses. The Defendant insurers contended that the declare, if coated in any respect, would give rise to a most indemnity of £750,000 (plus £50,000 for Claims Preparation Bills).
To find for the Defendant insurers, Justice Richard Jacobs held that Pizza Categorical’ proposed building of the Coverage “unrealistically dissects what is supposed by “limits of legal responsibility” … and ends in a studying which might shock any affordable reader of the coverage”.
BACKGROUND
Pizza Categorical’ declare for BI losses stemmed from closures and restrictions on using its eating places between March and November 2020, launched by the federal government in response to the Covid-19 pandemic.
Pizza Categorical’ coverage was underwritten by Liberty Mutual Insurance coverage Firm SE and XL Insurance coverage Firm SE and was on a normal type Aon Trio Property and Enterprise Interruption wording.
Pizza Categorical’ claims have been made below two extensions within the BI part of the Coverage:
(i) Extension 2(a)(i) supplied cowl in respect of “any incidence of a Notifiable Human Illness on the Premises …that causes restrictions on using the Premises on the order or recommendation of a statutory, native or different competent authority“; and
(ii) Extension 2(b)(v) supplied cowl in respect of the “closure or sealing off of the Premises … by the coverage, fireplace brigade or different statutory authority or native or transport authority attributable to an emergency occasion on the Premises or inside a radius of 1 mile of the Premises … which … prevents or hinders using the Premises or entry thereto …“.
Insurers denied cowl on the premise that each extensions have been restricted to “localised cowl” which was not supposed to increase to central authorities motion which resulted within the closures and restrictions on using Pizza Categorical’ eating places. Whereas this challenge is but to be decided, the Courtroom on this occasion thought-about a preliminary challenge relating to the development of the Coverage’s limits of legal responsibility. The difficulty was decided along with related points arising from different Covid-19 BI instances.
Coverage phrases
The provisions referring to the bounds of legal responsibility have been contained within the Coverage Schedule. Part 2 of the Schedule associated to BI claims. Web page 4 of Part 2 contained an itemised desk together with a column offering the “Restrict of Legal responsibility” per merchandise. The footnote to this desk famous: “Extra limits and/or sub-limits apply – these are listed later within the Schedule”.
Web page 5 of Part 2 contained a bit headed “Sub-limits”, a part of which is reproduced beneath:
“Sub-limits
– Sub-limits type a part of the Restrict of Legal responsibility and don’t apply along with it;
– all Limits of Legal responsibility apply anybody Prevalence;
– limits are inclusive of the Extra;
except in any other case acknowledged. If a couple of Sub-limit applies to the identical loss, the Insurer’s legal responsibility shall be restricted to the lesser Sub-limit.
…
In respect of Part 2
…
| Prolonged Incident – Notifiable illness – Prevention of Entry & Lack of Attraction |
GBP 250,000 |
…”
Web page 6 of Part 2 of the Schedule contained provisions headed “Extra” which supplied:
“… Insurance coverage Limits (and Sub-limits) are inclusive of Excesses.
Just one Extra will apply in respect of anybody Prevalence. …”
Of relevance was that, neither the time period “Limits of Legal responsibility” nor “Sub-limits” was outlined within the Coverage which, as demonstrated beneath, used completely different phrases to explain Coverage limits and was not constant in using terminology or capitals.
The events’ positions
The principle level of competition between the events was whether or not the Sub-limits set out on web page 5 of Part 2 of the Schedule got here throughout the expression “all Limits of Legal responsibility apply anybody Prevalence” in circumstances the place neither “Restrict of Legal responsibility” nor “Limits of Legal responsibility” was outlined within the Coverage.
Pizza Categorical ran the argument that, on a pure studying of the Coverage phrases, there was a transparent distinction between “Limits of Legal responsibility” and “Sub-limits”. They contended that no affordable reader would interpret the phrase “Limits of Legal responsibility” as having one that means within the first line on web page 5 of Part 2 of the Schedule (expressly distinguishing it from “Sub-limits”), however a distinct, considerably contradictory, that means within the second line (encompassing “Sub-limits”). Amongst different contentions, they submitted that this was much more obvious from the third line on web page 5 the place the phrase “limits” was supposed to seek advice from each “Limits of Legal responsibility” and “Sub-limits”, and that if this was not the case, the draftsperson would have used “Limits of Legal responsibility” and “limits” to convey a single that means in consecutive traces on the identical web page. As such, Pizza Categorical claimed that solely the “Limits of Legal responsibility” could possibly be aggregated to anybody Prevalence; the “Sub-limits” not being topic to such an software. They argued that, had there been such an intention, “Sub-limits” would have been expressly acknowledged to be topic to the anybody Prevalence aggregation, which it was not.
The Insurers submitted that, on any affordable studying of the Schedule, all limits (whether or not “Limits of Legal responsibility” or “Sub-limits”) have been topic to the applying of “anybody Prevalence”, except in any other case acknowledged (and there was nothing in any other case acknowledged).
DECISION
In accepting the Insurers’ place, Justice Jacobs discovered that the pure assumption and apparent conclusion was that all the figures set out on web page 5 of Schedule 2 got here throughout the expression “all Limits of Legal responsibility apply anybody Prevalence“. He discovered there to be no indication within the Coverage that the phrase “all Limits of Legal responsibility” (capitalised however not outlined) was supposed to imply one thing narrower than its bizarre that means. In its bizarre that means, the expression would embody all limits of legal responsibility together with the “Sub-limits”. Excluding sub-limits would result in a “very odd conclusion“. He held that sub-limits have been clearly limits of legal responsibility and the phrase “all” was supposed to encapsulate all limits. Every of the three bullet factors on web page 5 have been supposed to use to the desk that adopted and to the Schedule as a complete, with any departure having to be “in any other case acknowledged”. As there was nothing in any other case acknowledged in respect of the sub-limits for notifiable illnesses and prevention of entry, the “anybody Prevalence” wording utilized to these specific sub-limits.
COMMENT
The results of the choice is that, even when there’s cowl for Pizza Categorical’ losses below the related extensions, it will likely be restricted to £250,000, or alternatively a small portion of the declare.
Jacob J seems to have had little issue reaching his conclusion, discovering that the reply was “clear”. He additionally refused Pizza Categorical permission to enchantment though it might be that Pizza Categorical will search permission from the Courtroom of Attraction.
Topic to the end result of any such software, and any enchantment, the choice doubtlessly has implications for different policyholders on this wording to the extent that such policyholders have relied on the identical argument, with the impact of lowering cowl for vital claims to a fraction of their worth.
