- 英文摘要
- COVID-19 Pandemic and infections or deaths of many people in the U.S. have caused government to introduce measures such as stay home order or movement restrictions, and bans on business operations that leads to unprecedented suspension of business activities, The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous, has affected everyone across the United States. Many companies request compensation from insurers based on business interruption insurance contracts, because interruption insurance protects a business' income stream when its operations are shut down by a covered peril. However, the insurers refuse to pay, which spawned over 450 lawsuits and will be thousands in the future.
Insurers claiming that business interruption insurance policies require that the loss result from a covered cause of loss. Policies contain language such as: "Covered Causes of Loss means Direct Physical Loss Or Damage to Covered Property except those causes of loss listed in the Exclusions." But COVID-19 pollution is not "physical damage". Moreover policies contain "virus exclusion", language such as: "We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease." the actions of Civil Authorities do not cause "direct physical loss or damage to property".
Regarding the aforementioned disputes, in terms of judiciary, the courts of different states in the United States have different judgments on similar cases. Excepts Coverage is dependent on the case law of different jurisdictions, the courts also should to consider many issues such as: "pollution of COVID-19 constitute physical damage?" and "Does business interruptions due to the actions of civil authorities cause direct physical damage to property?" "Is the virus exclusion clause effective?" and "The definition of damage itself", and so on. These issues make court judgments a difficult task.
In terms of legislation, the U.S. Congress and 8 state legislatures have already enacted legislation requiring insurers to make up for the damage caused by COVID-19 to the insured. Although these bills violate the U.S. Constitution, they may be enforced by the U.S. Supreme Court. It is justified that it can promote recovery from disasters. On the administrative side, President Donald Trump said that generally, insurers should cover insureds' business interruption claims, Trump also supports the legislation of the aforementioned legislative branch. However, the insurers believe that the COVID-19 pandemic is an uninsurable risk, and the insurers will go bankrupt due to such payments. Therefore, the insurers have issued a statement that the settlement of damages against COVID-19 will seriously threaten the stability of the global insurers, and asked the government not to undermine the basic stability of the insurance industry.
In the face of COVID-19 Pandemic, there is no easy answers, and no relevant insurance judgment in Taiwan. Therefore, this article, discusses whether business interruption insurance should cover the damage caused by COVID-19, and further explains the arguments of the United States' support and opposition on this issue for future reference.
- 目次
- 壹、COVID-19 全球大流行造成經濟損害
一、COVID-19 全球大流行
二、COVID-19 對美國經濟的影響
貳、經濟損害與營業中斷保險
參、營業中斷保險概說
一、基本意義
二、美國營業中斷保險的承保方式
三、影響承保範圍的條款
四、被保險人索賠要素
肆、營業中斷保險理賠與否的爭議
一、保險人方面之立場
二、被保險人方面的立場
伍、保險契約之解釋
一、擬約者不利解釋原則
二、合理期待原則
三、小結
陸、美國法院對營業中斷保險理賠的可能立場
一、否定說－認為 COVID-19 的病毒感染不屬於財產實體損害
二、肯定說－認為 COVID-19 的病毒感染應屬於財產實體損害
三、強烈的反對意見
四、不同司法管轄區的差異影響
五、小結
柒、美國立法部門對營業中斷保險理賠的立場
捌、對於營業中斷保險理賠 COVID-19 損害的可能解決方法
一、政府與保險公司的合作
二、保險制度的變革與因應
玖、COVID-19 對我國營業中斷保險的影響
一、我國營業中斷保險的現況
二、我國與美國關於營業中斷保險之承保範圍比較
三、我國營業中斷保險的發展困境
四、COVID-19 對於我國營業中斷保險的影響性
拾、結語－美國經驗對於我國營業中斷保險的借鑑
一、勿以外部力量干預保險契約的內部規定
二、現有之營業中斷保險宜配合時代需求而調整
三、學習建立政府與保險業合作的夥伴關係
