The Insurance Council of Australia has launched proceedings in the NSW Supreme Court to test the limits of infectious diseases exclusions in business interruption policies.
This puts into action an approach that was agreed upon in principle by the ICA and the Australian Financial Complaints Authority at the end of July.
Rob Whelan, the ICA's chief executive officer said this test case was being run on behalf of insurers that sell commercial property policies with business interruption cover.
"Most insurers have never contemplated coverage for pandemics in their policies, and did not price pandemic risks into premiums. They believe pandemic-related exclusions are appropriate, but wish to provide greater clarity through engaging a superior court process," Whelan said.
"A decision from a superior court will assist insurers, AFCA and customers in developing a better understanding of how exclusions in policy documents respond to the unique circumstances of the COVID-19 pandemic."
The test case consists of two separate small business claims that were lodged with the Australian Financial Complaints Authority as part of its dispute resolution process. The insurance companies, which the ICA said have "offered" the two test claims, are Hollard and HDI Global Specialty, respectively.
The parties have requested the matter to be heard on an expedited basis. The Insurance Council will be represented by the prominent silk, Bret Walker, instructed by Clyde & Co. The legal costs for the hearing will be paid by the ICA.
When the agreement to run a test case was announced last month, John Price, Lead Ombudsman Insurance at AFCA said: "Following discussion with the insurance industry, ASIC, APRA and Treasury, AFCA has agreed that a test case before a superior court should proceed to allow for a determination of this threshold issue."
AFCA said it will use the outcomes of the test case "in determining relevant complaints arising in respect of business interruption claims".