Business Interruption Coverage under Eaton Gate Super Facility Commercial Combined Policy (RSA3)

The recent case of FCA v Arch and others [2020] EWHC 2448 (Comm) considered whether policyholders of a number of business interruption insurance products were entitled to cover in respect of the recent Coronavirus pandemic.

One of the wordings considered was the Infectious Diseases extension (Section 2 Extension VII) of a Super Facility Commercial Combined Policy underwritten by Eaton Gate Commercial[1], a Managing General Underwriter or Coverholder of Royal Sun Alliance (RSA). The policy, which was referred to in the case as RSA3 was held by a number of businesses including building contractors, landscape gardeners, manufacturers and wholesalers of electronics, fabrics and metal goods

The Wording 

The relevant parts of the policy are cited in the judgment at paragraphs 83 – 90[2], but the main aspect of the wording that fell to be considered was:

We shall indemnify You in respect of interruption or interference with the Business during the Indemnity Period following: 

 

a) any

 

iii. occurrence of a Notifiable Disease within a radius of 25 miles of the Premises;

Other Insured Perils under the extension

By way of context, in addition to the insured peril covered at a(iii) cited above[3]:

Meaning of Notifiable Disease

 Notifiable disease was defined as “any human infectious or human contagious disease excluding AIDS which the competent local authority has stipulated should be notified to them.” It was common ground that Coronavirus was a Notifiable disease for the purposes of the policy from 6th March 2020.

Indemnity Period

The relevant indemnity period under the policy was said to commence “with the date of the occurrence of a Notifiable Disease within a radius of 25 miles of the Premises[para 122].

Whilst the “insuring clause” of the extension required that business interruption “follow” the insured occurrence, the indemnity period clause[4] spoke of the Business being “affected in consequence of the occurrence.

General Exclusion L

The policy (in general as opposed to the business interruption extension in particular) contained General Exclusion  L[5], which was ostensibly applicable to the business interruption extension which stated “the insurance by this Policy does not cover any loss or Damage due to contamination soot deposition impairment with dust…. Poisoning impurity epidemic and disease or any limitation or prevention of the use of objects because of hazards to health” but also stated “all other terms and conditions of this Policy shall be unaltered and especially the exclusions shall not be superseded by this clause.

Trends Clause

The Policy also contained a claims quantification clause[6], and a “trends clause"[7] that provided when calculating loss of profit or such other measure of loss “adjustments be made as may be necessary to provide for the trend of the Business and for variations in or other circumstances…either before or after the Incident or which would have affected the Business had the incident not occurred so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Incident would have been obtained during the relative period after the Incident.

The word "Incident" used in both the quantification and trends clause was defined by the policy in such a way as to confine it to “loss of or damage to property” and thus on its face did not cover business interruption caused by the non damage perils insured under the relevant extension.

The Court's Conclusion on Coverage

The Court concluded at paragraph 113:

there is cover under RSA 3 for any business interruption which an insured can show resulted from COVID-19, including by reason of the actions, measures and advice of the government, and the reaction of the public in response to the disease, from the date when the disease occurred in the relevant 25 mile radius."

Consequently, on the face of the judgment if a policyholder covered under the Extension VII can show:

Whilst this outcome will no doubt come as a great relief to the building contractors, landscape gardeners, manufacturers, wholesalers, and other policyholders possessing relevant coverage under the Eaton Gate Commercial Super Facility Commercial Combined Policy, who sustained business interruption as a result of the pandemic, there is a prospect that Royal and Sun Alliance might appeal this determination on the basis of aspects of the Court’s underlying reasoning.

Scope of this Article

This article will examine the core aspects of the Court’s reasoning and consider which parts might be susceptible to challenge on appeal.

Scope of Insured Peril

Causation

Exclusion

Trends clause

Scope of the Insured Peril

The nature of the peril

…. we consider that the “peril insured against” is the composite peril of interruption or interference with the Business during the Indemnity Period following one of (a) to (d)."  [ie occurrence of a Notifiable Disease within a radius of 25 miles of the Premises]" [Para 94]

We consider that there will have been an “occurrence” of COVID-19 within an area when at least one person who was infected with COVID-19 was in the relevant area. We do not consider that it is necessary for there to have been an “occurrence” of the disease that the case should have been diagnosed." [Para 93]

The significance of the word “following”  

….As to what is intended by the requirement that the business interruption or interference should “follow” one of (a) to (d), we consider that this imports more than merely a temporal relationship" [Para 95]

Whilst the Court concluded that “following” denotes a causative relationship, in its later reasoning, it arguably overlooked the intrinsic temporal meaning inherent in any causative phrase and undeniable in the expression “following.” Effectively, the Court found the interruption to be the public and governent response to the pandemic on a national level. It was found to be necessary that the disease should come within the relevant 25 mile radius, but not that it should do so before the interuption was experienced which was described as "artificial". Whilst the Court held that policyholders could recover after the disease was present within the radius, they could claim for interruption which was caused by an earlier public and government response. 

Whether "following" denotes proximate causation

...one of (a) to (d) should have a causal connection to the business interruption, but not necessarily one of proximate causation…"

...it appears to us that, in context, it was used to denote a looser form of link than that of proximate causation. Its natural meaning does not itself import such a link, and it makes good sense that a word implying a looser link should be used in recognition of the fact that, of the matters referred to within Extension vii, (a) and (d) would not of themselves directly cause interruption to or interference with the business, but would in almost every case have such an effect only via the reaction of the authorities and/or of the public. In (b) and (c) that part of the chain is specified in the clause, but not in (a) and (d), and thus the use of the word “following” is entirely understandable... [Para 95]

Pursuant to s55(1) of the Marine Insurance Act 1906 unless the policy provides otherwise “the insurer is liable for any loss proximately caused by a peril insured against… but not…any loss which is not proximately caused by a peril insured against.

Consequently, the default position is that the doctrine of proximate causation should apply, although “the insurer may, by appropriate wording excluding the doctrine of proximate cause, widen the scope of an exempted peril or an insured peril so that the peril becomes operative if it has played any part in the loss[Colinvaux 5-075]

Appropriate wording disapplying the doctrine has been found to include:

Terms such as “due to”,”arising from”, “resulting from”, and “attributable to” are likely to import the default position.

The terms importing the default position all appear to denote a direct causal link, where as those that have been held to displace proximate causation seem to express a looser and more indirect relationship.

Following” sits rather uncomfortably between the two; it does not possess the innate causative meaning of “resulting from,” but if it possess more than a temporal meaning, it seems more causatively direct than “in connection with.” Whilst following features in the wording considered in Smith v Accident Insurance that wording also contained the clarificatory words “whether… directly or jointly,” which are obviously absent in the present wording.

On balance, “following” might be said in its unqualified form to equate to in any way involving, and as their lordships held appears to be a deliberate and “understandable” choice of terminology to import a “looser form of link.”

Their lordships find support for that interpretation on the understanding that whilst the extension covers business interruption following “restrictions on the use of the Premise on order of advice of the competent local authority” in the case of the presence of vermin or sanitation issues there is no such reference to restrictions imposed by an authority in the case of a notifiable disease, organism, or murder/ suicide.

Their lordships opined that the latter occurrences would “not of themselves directly cause interruption to or interference with the business, but would in almost every case have such an effect only via the reaction of the authorities and/or of the public.”

Whilst, that might often be the case, the notion that the parties did not wish to restrict coverage to interruption following from a reaction of the authorities or the public in all contingencies, is perhaps illustrated by the fact that whilst (B) and (C) imposes that requirement (A) and (D) conspicuously does not.

The obvious implication would be that that whilst interruption in the case of vermin or sanitation issues are only covered if they reach the severity of warranting public authority intervention the mere fact of an occurrence of a notifiable disease at or within 25 miles of the premises, attributable to food or drink supplied from the premises, the discovery of an organism at the premises likely to result in the occurrence of a notifiable disease, or the occurrence of murder or suicide at the premises covers such loss as naturally flows.

A conceivable rationale might be that it would be unreasonable to shut down or otherwise incur interruption due to the discovery of a single rat on the premises or a broken toilet (and that the appropriate litmus test for assessing the proportionality of business interruption is authority intervention), whereas the incidents in  (A) and (D) are intrinsically severe such that “voluntary” interruption might be a proportionate response in almost all cases; to preserve human dignity in the case of suicide, preserving forensic evidence in the case of murder, avoiding tortious liability (or even simply preserving a reputation for safeguarding health and safety/ welfare ) in the case of the presence of notifiable diseases at the premises or attributable to food and drink.

Whilst this might support the Court’s judgment that proximate causation was not intended to apply, as Colinvaux states proximate causation is wide enough to embrace not only “death blow cases” “where the occurrence of peril A renders inevitable the occurrence of peril B [5-070] (ie in the case of B a local authority closure order in response to rat infestation causes business interruption); but also “increased risk cases” “where the occurrence of peril A, whether or not it causes damage to the insured subject-matter, puts that subject matter at greater risk from peril B or makes the occurrence of peril B more likely” illustrated by the consideration “is peril B a new operative cause in its own right (novus actus interveniens), or is it the consequence of peril A[5-071]. Just as harm befalling an assault victim jumping out of a car to escape their assailant is deemed to be caused by the original assault, so a responsible business closing in response to government guidance or suffering a reduction in footfall owing to a public reaction to the pandemic might be said to be a “direct though not inevitable consequence of that peril,” with said reaction not constituting a novus actus interveniens but a natural consequence of the disease that does not constitute meaningful volition. It is not akin to the independent volition shown in the case of where a fire encourages (but clearly does not in any way justify) a mob from looting, where it is the lawlessness of the mob and not the fire which is the proximate cause [168]

There is, however, a risk that government or business reaction might be seen as a “state of affairs case” rather than a “increased risk case,” whereby peril A occurs and whilst it does not cause any loss or weakening by itself “induces the assured to alter his conduct and peril B  occurs in the course of the new state of affairs." [5-074]. In such a case peril B rather than A is deemed to be the proximate cause ie if a vessel adopts a new route to avoid enemy submarines and is destroyed by sea on the new route, the loss is proximately by perils of the sea and not war risk [172]

Consequently, it is understandable why the court has sought to construe “following” as denoting something looser than proximate cause.

Does the Indemnity Period reference to “in consequence of the occurrence” alter this?

No.

"Indemnity Period shall mean the period during which the results of the Business shall be affected in consequence of the occurrence discovery or accident beginning:

i. in the case of a) and d) above with the date of the occurrence or discovery; or

and ending not later than the Maximum Indemnity Period thereafter shown below."

The phrase “in consequence of”, RSA submitted, must be read as requiring proximate causation. In our view, however, the phrase is used simply to refer to the requirement that the interruption should “follow” one of (a) to (d) which is specified in the main body of the extension."

“Following” on any view, and as the FCA accepts, imports some causal connection and as we see it, the phrase “in consequence of” is intending to refer to the same connection.

what is envisaged is that the “occurrence discovery or accident” shall have business interruption or interference as a “consequence”. But, as we have already said, the “occurrences” in (a) and (d) would not have a direct effect on the business. “In consequence of” is accordingly intended to embrace, at least, indirect causation." [Para 96]

This construction seems eminently sensible. It would be surprising (and somewhat misleading) if the extension adopted a loose causative requirement that was then inconspicuously narrowed by a temporal definition.

Does the Indemnity Period reference to “loss arising at those Premises which are directly affected by the occurrence” alter this?

No.

We consider that this provision is aimed at ensuring that there is no cover for the effects on the business which do not arise from those premises which are impacted by the contingency insured (whether it be (a), (b), (c) or (d) within Extension vii).

…for example, this provision makes clear that, if vermin or pests were discovered at an insured’s premises A and as a result the competent local authority shut down the insured’s premises B as well as a result of concerns about the insured’s safety standards, the business interruption caused by the shutting of premises B would not be covered...

In our view, however, it is not intended to narrow the cover provided under (a) to cases where the relevant occurrence or discovery occurred at premises A or had an effect upon premises A without any intermediate cause. That would be inconsistent with the grant of cover in respect of the business interruption following any occurrence of a notifiable disease within 25 miles of the Premises, which clearly envisages that the occurrence of the disease will be at a distance of up to 25 miles from the Premises in question. A disease occurring at such a distance would only be likely to have an effect on the business at the Premises indirectly, namely via the reaction of the authorities and/or the public." [Para 97]

Whether the Notifiable Disease had to be solely contained within the relevant radius

No.

RSA’s case is that if there is a local outbreak of a disease occurring more widely, then it is only the effects of the disease occurring locally, and only insofar as they can be distinguished, which are covered." [Para 101]

We have concluded that it does not withstand detailed consideration of the nature of a cover in relation to Notifiable Disease in the terms of that provided for in Extension vii." [Para 102]

Extension vii (a) is not expressly confined to cases where the interruption has resulted only from the instance(s) of a Notifiable Disease within the 25 mile radius, as opposed to other instances elsewhere. Nor in our view does the language used in this clause implicitly have that effect."

The second matter is the implications of the fact that the cover relates to occurrences of a Notifiable Disease.

the fact that it is envisaged that the occurrence of a notifiable disease up to 25 miles away might be followed by interruption of business at the insured’s premises demonstrates, in our view, that the parties must have contemplated that there might be relevant actions of public authorities which affect a wide area. They must also have contemplated that the authorities might take action in relation to the outbreak of a notifiable disease as a whole, and not to particular parts of an outbreak, and would be most unlikely to take action which had any regard to whether cases fell within or outside a line 25 miles away from any particular insured premises." [

Para 104]

The wording of the clause, in other words, indicates that the essence of the fortuity covered is the Notifiable Disease, which has come near, rather than specific local occurrences of the disease." [Para 102]

It has the effect that diseases which make no local appearance cannot lead to there being cover." [Para 109] 

what is required by the word “following” is a looser causal relation than proximate cause, we would regard that as being clearly satisfied by the occurrence of a case of the disease within the radius if that occurrence was part of a wider picture which dictated the response of the authorities and the public which itself led to the business interruption or interference.[Para 111]"

If RSA is correct as to the meaning of the clause,

if 20 people contracted a Notifiable Disease in a town 24 miles away from the premises and the authorities decided as a result to take “locking down” or other action which affected the insured’s premises, there would on RSA’s case (as we understood it) be cover, even though the aim of the public authorities was in large part to prevent the disease spreading elsewhere including outside the area of the 25 mile radius.

On the other hand, if 20 people in a town 26 miles from the premises contracted the Notifiable Disease and the authorities decided to act by imposing a lockdown or other measures, there would be no effective cover for the resulting interruption or interference with the business, notwithstanding that some of those 20 people might have subsequently moved into, or infected people within, the 25 mile radius, and notwithstanding that a part of the motivation of the authorities in imposing the measures was to prevent or slow the spread of the disease within the 25 mile radius. [Para 105]

On RSA’s case, if the local measures were caused by the occurrence of the disease within the 25 mile radius, then there would be cover for their effects. But if the disease developed and spread more quickly, so that the response was national, and simultaneous, then there would be no effective cover in any area, because the response was not taken specifically in relation to any particular area. [Para 106]

(a)(iii) such that it is not confined to the effects only of the local occurrence of a Notifiable Disease. The construction we favour avoids the result that there would be no effective cover if the local occurrence were a part of a wider outbreak, and where, precisely because of the wider outbreak, it would be difficult or impossible to show that the local occurrence(s) made a difference to the response of the authorities and/or public.

We do not consider that a reasonable person, equipped inter alia with knowledge of the 1984 Act and the 2010 Regulations, would have understood the parties in using the words they did to mean that or intend such results. [Para 107]

Whether the Notifiable Disease had to precede the interruption or interference encountered by the Business

Though not expressly addressed, the answer appears to be no. Not only is not a requirement that the government or public reaction follows the specific local occurrence, but it also appears to be the case that cover is granted to premises in locations where the first case of Covid within the relevant radius post-dates said government or public reaction.

The caveat appears to be that the business can only recover for loss incurred after the first case within the relevant radius. In other words loss caused by (for example) the lockdown, but only from the date of the first case within the relevant radius (even though the fact of the case had no impact upon the lockdown restrictions which were already in place).

The wording of the clause, in other words, indicates that the essence of the fortuity covered is the Notifiable Disease, which has come near, rather than specific local occurrences of the disease. [Para 102]

it is artificial to say that only some of those which had occurred by any given date were effective causes of the action taken at that date; and still more artificial to say that because the action was taken in response to all the cases, it could not be regarded as taken in response to any particular cases" [Para 111]

information which the government was acting upon, and a number of SAGE minutes, which show that the government response was the reaction to information about all the cases in the country, and that the response was decided to be national because the outbreak was so widespread. As Mr Edelman QC pointed out, the Secretary of State for Health and Social Care, Mr Hancock, on 28 April 2020 stated that thought had been given to imposing measures first on London and the Midlands, but it had been decided that “we are really in this together”, and that “the shape of the curve ... has been very similar across the whole country”. Given this, it appears to us that it is not unrealistic to say that all the cases were equal causes of the imposition of national measures. [Para 111]

 

Causation

Interplay between causation and construction

If we are correct in our view as to the nature of the cover provided in Extensionvii(a)(iii), then the issues as to causation largely answer themselves. If, properly construed, there is cover for the effects of a disease which may occur both within and outside the specified radius, and which may trigger a response of the authorities and the public to the outbreak as a whole, then it would be inconsistent with the nature of the cover to regard the occurrence of the disease outside the radius, or the response of the authorities or the public to that occurrence of the disease, as being alternative, uncovered, causes of the business interruption which could be relied on as supporting an argument that there would have been the same business interruption in the absence of the insured peril." [Para 110]

Causal Link

what is required by the word “following” is a looser causal relation than proximate cause, we would regard that as being clearly satisfied by the occurrence of a case of the disease within the radius if that occurrence was part of a wider picture which dictated the response of the authorities and the public which itself led to the business interruption or interference. Even if the word “following” imports the requirement of proximate causation we would consider that, given the nature of the cover as we consider it to be, this is to be regarded as satisfied in a case in which there is a national response to the widespread outbreak of a disease. In such a case we consider that the right way to analyse the matter is that the proximate cause of the business interruption is the Notifiable Disease of which the individual outbreaks form indivisible parts. [Para 110]

 

Alternatively, although we regard this as being less satisfactory, each of the individual occurrences was a separate but effective cause. On this analysis they were all effective because the authorities acted on a national level, on the basis of the information about all the occurrences of COVID-19, and it is artificial to say that only some of those which had occurred by any given date were effective causes of the action taken at that date; and still more artificial to say that because the action was taken in response to all the cases, it could not be regarded as taken in response to any particular cases [Para 112]

Is there proximate causation?

As apparent from the above, their lordships considered the wording did not require that there be proximate causation, but held that even if there were such a requirement, it would be satisfied

Does it matter whether the interruption would have been sustained irrespective of the incidence of coronavirus within 25 miles of the insured premises

No. 

it would be inconsistent with the nature of the cover to regard the occurrence of the disease outside the radius, or the response of the authorities or the public to that occurrence of the disease, as being alternative, uncovered, causes of the business interruption which could be relied on as supporting an argument that there would have been the same business interruption in the absence of the insured peril." [Para 110]

Exclusions

Whether General Exclusion L excluded loss

No.

This exclusion has the hallmarks of one which has been included without detailed consideration of the extent to which its terms might, if applied literally, cut down specific covers provided in the insurance. Thus, the exclusion seems to exclude “loss or Damage” due to “poisoning”. However, food poisoning is one of the notifiable diseases which is included in Schedule 1 to the 2010 Regulations, and is also the most obvious Notifiable Disease which might be “attributable to food or drink supplied from the Premises” within Extension vii (a)(i).

We have no doubt that a reasonable person would not understand the insurance to be expressly giving cover with one hand and taking it away by the other in the form of the list of matters referred to in General Exclusion L [Para 115]

While RSA seeks to rely on the appearance of the word “epidemic” within Exclusion L, it appears to us that this reliance carries no conviction. “Epidemic” is not alone in the list but, as we have said, is in the company of “poisoning” and “disease”. As we have said, we find it impossible to consider that loss as a result of these matters insofar as expressly covered under Extension vii, was intended to be excluded by this General Exclusion. [Para 116]

We consider that the correct construction of the policy is that sub-clauseL(b)(bis) must be understood as meaning that the terms of the exclusion were not intended to override express grants of cover, or at least was not intended to apply to the disease clauses in Extension vii. It seems likely that L(b)(bis) was included precisely to cater for the possibility that, without it, General Exclusion L might not fit well with other terms of the policy in which it was being included. L(b)(bis) is not confined to preserving the effect of other exclusions in the policy, because the first part of the clause applies to “all other terms and conditions of the Policy”,

it is wide enough, in our view, to apply to cases such as the present, in order to avoid the absurdity, and potential unfairness, of an express grant of cover being eliminated by a General Exclusion dealing with a range of matters most of which are irrelevant to the cover involved." [Para 117]

Finally, under this heading we should say, while we do not consider it necessary to resort to it, this would be one of the few cases in which it would be appropriate to apply a principle of contra proferentem." [Para 118]

Trends Clause

Whether the trends clause applied ?

Yes even though on its face the clause only applied to business interruption following material damage, the Court was willing to manipulate the wording to extend the clause’s application to non material business interruption.

In our view, though the policy is not well drafted, it should be construed as meaning that the contractual quantification provisions are applicable for the purposes of the calculation of the indemnity under Extension vii. It would, in our view, be commercially surprising if the parties intended that the provisions relating to quantification of business interruption claims arising out of damage should not apply, with appropriate adjustments, to claims in respect of non-damage perils and the parties should be left to debate the correct approach to the quantification of such claims" [Para 120] 

If so, whether the trends clause would take account of the impacts of coronavirus that the business would have suffered irrespective of the outbreak within 25 miles of the business

No.

First, it is in the quantification machinery for a claim, so that it is not part of the delineation of cover, but part of the machinery for calculating the business interruption loss on the basis that there is a qualifying insured peril. Where the policyholder has therefore prima facie established a loss caused by an insured peril, it would seem contrary to principle, unless the policy wording so requires, for that loss to be limited by the inclusion of any part of the insured peril in the assessment of what the position would have been if the insured peril had not occurred.

Second, subject to the particular wording providing for something different, the object of the quantification machinery (including any trends clause or provision) in the policy wording is to put the insured in the same position as it would have been in if the insured peril had not occurred. [Para 121]

what this means is that one strips out of the counterfactual that which we have found to be covered under the insuring clause. This means that one takes out of the counterfactual the business interruption referable to COVID-19 including via the authorities’ and/or the public’s response thereto. [Para 122]

KEVIN HOLDER © 2020

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

[1]  Policy wording at p35 RSA3 Policy

[2] Judgment

[3] The full clause is:

“We shall indemnify You in respect of interruption or interference with the Business during the Indemnity Period following:

a) any

i. occurrence of a Notifiable Disease (as defined below) at the Premises or attributable to food or drink supplied from the Premises;

ii. discovery of an organism at the Premises likely to result in the occurrence of a Notifiable Disease;

iii. occurrence of a Notifiable Disease within a radius of 25 miles of the Premises;

b) the discovery of vermin or pests at the Premises which causes restrictions on the use of the Premises on the order or advice of the competent local authority;

c) any accident causing defects in the drains or other sanitary arrangements at the Premises which causes restrictions on the use of the Premises on the order or advice of the competent local authority; or

d) any occurrence of murder or suicide at the Premises.

[4] The Indemnity Period Clause is: 

2. For the purposes of this clause:

Indemnity Period shall mean the period during which the results of the Business shall be affected in consequence of the occurrence discovery or accident beginning:

i. in the case of a) and d) above with the date of the occurrence or discovery; or

ii. in the case of b) and c) above the date from which the restrictions on the Premises applied; and ending not later than the Maximum Indemnity Period thereafter shown below.

[5] General Exclusion L

Applicable to all sections other than Section 5 – Employers’ Liability and Section 6 – Public Liability

Contamination or Pollution Clause

a) The insurance by this Policy does not cover any loss or Damage due to contamination pollution soot deposition impairment with dust chemical precipitation adulteration poisoning impurity epidemic and disease or due to any limitation or prevention of the use of objects because of hazards to health.

b) This exclusion does not apply if such loss or Damage arises out of one or more of the following Perils:

  Fire, Lightning, Explosion, Impact of Aircraft

  V ehicle Impact Sonic Boom

  Accidental Escape of Water from any tank apparatus or pipe Riot, Civil Commotion, Malicious Damage

  Storm, Hail Flood Inundation Earthquake

  Landslide Subsidence Pressure of Snow, Avalanche

Volcanic Eruption

a)(bis) If a Peril not excluded from this Policy arises directly from Pollution and/or Contamination any loss or Damage arising directly from that Peril shall be covered.

b)(bis) All other terms and conditions of this Policy shall be unaltered and especially the exclusions shall not be superseded by this clause.

[6] Claims Quantification (Basis of Claims Settlement) clause provided:

“Section 2 – Gross Profit/Estimated Gross Profit

(if shown as operative in the Schedule)
The insurance is limited to loss of Gross Profit due to: a) reduction in Turnover; and
b) increase in cost of working;
and the amount payable as indemnity shall be:
a) in respect of a reduction in Turnover:

b) the sum produced by applying the Rate of Gross Profit to the amount by which the Turnover during the Indemnity Period shall fall short of the Standard Turnover in consequence of the Incident ...

Section 2 – Gross Revenue/Estimated Gross Revenue (if shown as operative in the Schedule)

The insurance is limited to

a) loss of Gross Revenue;
...
and the amount payable as indemnity shall be:

a) in respect of loss of Gross Revenue: the amount by which the Gross Revenue during the Indemnity Period shall fall short of the Standard Gross Revenue in consequence of the Incident ...”

[7] The Trends Clause:

“Under Rate of Gross Profit, Annual Turnover, Standard Turnover, Annual Rent receivable, Standard Rent, Receivable Annual Gross Revenue and Standard Gross Revenue adjustments shall be made as may be necessary to provide for the trend of the Business and for variations in or other circumstances affecting the Business either before or after the Incident or which would have affected the Business had the Incident not occurred so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Incident would have been obtained during the relative period after the Incident.”