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Is COVID-19 Infection Really Eligible For Indemnity Under An Injury Insurance Policy? – Insurance Claims



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A recent judgment by the Court of Turin, of January 2022, has
reopened the debate on the eligibility for indemnity payment under
private injury insurance of death or bodily injury attributable to
Covid-19 infection. The issue had remained in the background for
two years, following the passage of the emergency legislation that
for the purpose only of the coverage supplied by INAIL, had
established the equivalence of Covid-19 infection and injury. At
the moment, the judgment in question expresses an isolated
position, different from the various rulings issued on the subject
by other trial-level judges, even more recently. It is based
essentially on the results of the medical-legal evaluations
conducted by the Court-appointed expert named in the case in
question and was received favorably by commentators who principally
follow medical-legal doctrine.

Part of medical-legal doctrine has for some time considered a
virulent cause to be equivalent to a violent cause, i.e. one of the
elements that, togetherwith the accidental and external character
of the cause itself, distinguishes a harmful event that gives rise
to an injury (according to the definition of injury used as general
practice in insurance contracts). In other words, a viral
infection, especially when the infective load of the viral agent is
per se sufficient to produce bodily harm, is considered to be of a
violent nature and thus Covid-19 infection would constitute an
injury eligible for compensation under private insurance
policies.

However, it is worthwhile to recall that the equivalence
proposed by that medical-legal doctrine in the past was apply by
the Italian jurisprudence only for the purpose of ensuring INAIL
coverage for workers affected by viral, bacterial and parasite
infections for work reasons; otherwise, since those infections were
not included among the occupational diseases listed in the
ministerial tables in force at the end of the last century, those
workers would not have received any protection. So, it was merely a
prudential work-around, dictated by legitimate reasons of social
justice. Today, however, with the updating of the ministerial
tables to include such infections among occupational diseases, it
has no reason to exist.

From a legal standpoint, two additional aspects come into
consideration:

  1. for private law purposes, an injury necessarily requires not
    only an accidental, external and violent (or virulent) cause, but
    also the occurrence of a harmful event, and that it must be
    possible to identify the moment, place and method of occurrence of
    said event. Frankly, in the case of Covid-19 contagion, this does
    not seem possible;

  2. at least in relation to private insurance policies stipulated
    prior to the outbreak of the pandemic, Covid19 infection was
    certainly a risk unknown to and unknowable by the parties. How it
    can now be claimed that, in a contract between private parties,
    governed by contractual provisions that expressly do not consider
    infections in general, and thus certainly not Covid-19 in
    particular, the insurer is required to cover a risk not considered
    ab origine and for which the policyholder has not paid any premium
    to transfer the risk to the insurer, remains a mystery.

Regardless of any considerations concerning the questionable
equivalence between violent cause and virulent cause, and the fact
that, at least until now, nobody has ever dreamed of providing
insurance coverage for infectious diseases under an injury policy
(except for infections contracted as a consequence of another
injury), this last consideration is decisive in my view, in order
to exclude the eligibility for compensation of Covid-19 infection
as an injury in the context of private insurance coverage; unless,
once again, insurance companies are asked to play the role of
providing social shock absorbers, that certainly is not proper for
them.

Originally Published 13 June 2022

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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