The Marlin Hotel Dublin has argued in Ireland's commercial court that it should be indemnified for business interruption during the pandemic if it can prove that Covid-19 occurred at its premises in mid-March 2020 on the "balance of probabilities."
Senior counsel [SC] Martin Heyden, representing the hotel, emphasised that there was no widespread systematic testing during the initial wave of the virus that could prove the presence of Covid-19 at the hotel at that time.
In the absence of such physical evidence, Heyden stated that statistical information should be used to demonstrate the likelihood of the virus being present early on in the pandemic.
The Marlin Hotel Dublin is currently suing its insurer, Allianz Plc, over its refusal to pay out for business interruption during the pandemic.
The Marlin's claim and Allianz's refusal
The Marlin, which includes a 300-room hotel, restaurants, co-working space and a gym, claims to have suffered a loss of €1.5 million in 2020. The hotel was expecting a profit of €5 million, which would have been covered by its insurance policies.
The case before Mr Justice Denis McDonald focuses on two extensions of the policy. The first extension concerns losses incurred due to business disruption or interference caused by a notifiable disease at the premises, while the second covers losses for interruption due to property damage caused by an insured peril.
The Marlin argues that it suffered loss and damage in both policy areas due to an "occurrence" of Covid-19 at its premises, leading to restrictions on its use.
But Allianz, represented by Paul Gardiner SC and Brian Conroy SC, has refused to pay out under the insurance claim, asserting that no evidence was provided to establish that government measures restricting the use of the premises were caused by an occurrence of the virus at the hotel.
Allianz claims that the alleged occurrence of Covid-19 did not cause the restrictions since the government restrictions were imposed before there was an alleged occurrence at the hotel.
The definition of "occurrence" and the balance of probabilities
Opening the case, Mr Heyden highlighted that there was no initial physical manifestation of Covid-19 at the hotel, such as a positive test, although some cases were identified later in the pandemic.
He argued that the definition of "occurrence" in the Marlin's insurance policy is broader than the "manifestation" of the virus, as seen in other policies. Mr Heyden contended that even if a case of the virus at the hotel was unknown at the time, it still qualifies as an "occurrence."
He maintained that, based on the balance of probabilities, there would have been a case of Covid-19 at the hotel in mid-March 2020. This should be sufficient for an indemnity under the policy.
The counterclaim by Allianz
In response, Allianz has filed a counterclaim seeking a number of declarations, including the requirement that cover will not be triggered unless the interruption of business was caused by Covid-19 occurring at the premises and by Covid's being the proximate cause of the restrictions imposed on the company.
The hearing is expected to continue for five days.
