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BI impacts possible from latest Victoria lockdown

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Business interruption claim disputes could still arise from the latest Victorian lockdown in cases where insurers have been slow to revise wordings to exclude pandemics, a lawyer says.

Insurers have tightened and updated wordings, including removing references to the repealed Quarantine Act, since lockdowns last year after policyholders argued they were covered for COVID-19 impacts, despite insurers saying that was not the case.

Berrill & Watson Principal John Berrill says some policies were still being rewritten in August, and a window exists for insureds that renewed with previous wordings.

“As a result of the latest lockdown in Victoria there are going to be less viable claims than previously, but still some viable claims,” Mr Berrill told insuranceNEWS.com.au.

“There are lots of permutations and combinations in this, and it depends on policy wordings in place prior to the last renewal, the timing of renewals and any changes, and what wording was changed.”

As time goes by there will be fewer viable claims, given insurers have the opportunity each year at every renewal to refine policy wordings, he says.

Mr Berrill says pandemic exclusion wordings had typically applied to infectious diseases and hybrid clauses, and questions over claims include whether prevention of access clauses have been rewritten as well.

The validity of claims already lodged for past lockdowns depends on the outcomes of multiple court actions underway. The High Court is due to hear an appeal application on June 25 relating to whether wordings citing the Quarantine Act can be used to exclude cover for COVID-19 interruptions.

Separately, a QBE case involving Quarantine Act wordings and Victorian property law is set to be heard late next month in the Federal Court, while a number of other actions are underway.

Herbert Smith Freehills Special Counsel Guy Narburgh says it would be surprising if there are many claims arising as a result of old wordings as the pandemic continues.

“I would expect in most cases there will be much clearer COVID exclusions, and certainly we have seen that across the market,” he said.

Gadens Partner Simon Theodore says even where policies don’t specifically mention Biosecurity Act exclusions, sub-limits and changes were introduced during renewals last year that would make it more difficult to pursue claims.

“They all woke up to the fact that a lot of their policies were found to be wanting,” he said.