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The impact of Covid-19 on the global insurance industry – Poland

Tuesday 12 July 2022

Julita Zimoch-Tucholka
DZP, Poland
julita.zimoch-tucholka@dzp.pl

Poland

General questions

Yes/ No/  N/A

Additional comments, if any.

1

Does the country that you are reporting on follow common law jurisprudence?

No

2

If the answer to the above question is no, does the country you are reporting on follow a civil code? Please describe the judicial system in short.

Yes

The Polish legal system is based on continental civil law. Basic legal acts are the Constitution and statutes adopted by the parliament. 

The common courts in Poland are divided into courts of appeal, provincial courts and district courts. They are competent to hear, inter alia, civil law cases, including insurance cases.

Awards issued by courts in individual cases are not binding precedents for future judicial decisions as in the common law system. However, the highest court in Poland, the Supreme Court, has the power to issue so-called legal rules which are binding for lower courts.

3

Please provide a brief description of the legal framework applicable to insurance coverage disputes in the country you are reporting on. In so doing, please consider the following questions:

In Poland several legal statutes contain provisions which govern insurance contracts. The most important of which include:

  • the Civil Code (Arts 805–834);
  • the Act dated 11 September 2015 on Insurance and Reinsurance Activities; and
  • the Act dated 22 May 2003 on compulsory insurance, Insurance Guaranty Fund and the Polish Office of Motor Insurers

The courts which decide insurance disputes are courts competent for the seat of the insurer, or the residence of the insured, policyholder or beneficiary (the decision is made by the claimant).

4

Does the insured bear the burden of establishing coverage of a claim, or does the insurer bear the burden of establishing no coverage? Please give a short description of the legal basis in your country.

According to a general rule, the burden of proof lies with the claimant. If the insurer as respondent claims that there is no coverage due to for example, a certain exception or failure to comply with duties by the policyholder, the insurer bears the burden of proving it.

There are no specific rules applicable to insurance contracts.

The legal basis is the Code of Civil Proceedings, in particular Article 232.

5

Are coverage provisions in policies interpreted broadly or is there a presumption in favour of coverage? Please give a short description of the legal basis in your country.

Polish law does not provide any presumption with respect to coverage or its exclusion. Any claims are subject to general rules of the burden of proof (see response to Question 4).

Unclear or unambiguous provisions in the insurance contract and the terms of insurance are always interpreted in favour of the insured.

The legal basis is the Act dated 11 September 2015 on Insurance and Reinsurance Activities (Art 15), the Code of Civil Proceedings and the Civil Code.

6

Are exclusions interpreted narrowly or is there a presumption against finding that an exclusion to coverage applies? Please give a short description of the legal basis in your country.

There are no specific provision in Polish law regarding the interpretation of exclusions to coverage. In general, it is well established in case law that exclusions to a general rule should be interpreted narrowly.

7

Are there universally accepted definitions for:

  • event
  • occurrence
  • damage
  • cause
  • originating cause
  • natural peril
  • force majeure
  • loss
  • consequential loss

If the answer is yes, please give a short description of each definition and the legal basis for that definition (ie, a rule of law, case law etc).

Yes

In most cases there are no statutory definitions for these terms. Commentators and in case law the following definitions were developed:

event

The closest definition of the term ‘event’ is set out in in Article 3 point 57 of the Act dated 11 September 2015 on Insurance and Reinsurance Activities, which refers to a ‘fortuitous event’, defining it as a future and uncertain event, independent of the will of the policyholder or the insured, the occurrence of which causes damage to personal property or an increase in property needs on the part of the policyholder or another person covered by the insurance protection.

damage

There is no legal definition of ‘damage’ in any Polish law. Commentators define damage as the difference between the condition of the injured party’s property and the condition that would exist if the injury did not occur due to a tort or failure to perform a contract, (eg, in K Osajda (red serii), W Borysiak (red tomu), Kodeks cywilny. Komentarz Wyd 29, Warszawa 2021). Damage consists of actual damage (damnum emergens) and lost profits (lucrum cessans).

force majeure

There is no definition of force majeure in any legislative provisions applicable to the insurance sector. Similarly, the Civil Code does not contain a legal definition of force majeure. Commentators define it as an extraordinary, overwhelming and external situation, which is difficult to foresee, impossible to control, even with utmost care, and not attributable to the person relying on it. It may result both from natural events such as earthquakes, or human acts like war and riots (eg, E Gniewek, P Machnikowski (red), Kodeks cywilny Komentarz Wyd 10, Warszawa 2021).

loss

There is no definition of ‘loss’ in any legislative provisions relevant to the insurance sector. However, doctrinally the two basic forms of damage are loss (damnum emergens) and lost profits (lucrum cessans). Loss is a reduction in the value of the injured party’s property, even if the expenses reducing that property have not yet been incurred (eg, in K Osajda (red serii), W Borysiak (red tomu), Kodeks cywilny Komentarz Wyd 29, Warszawa 2021).

natural peril

This term is usually referred to in insurance policies as ‘zdarzenie losowe’ or ‘klęska żywiołowa’ and is defined by commentators as a future, exceptional, unpredictable event of natural origin.

There is no definition of ‘cause’, ‘occurrence’ or ‘originating cause’. There is also no definition of ‘consequential loss’ however, in Polish, this term is referred as ‘indirect loss’ (‘szkoda pośrednia’ or ‘szkoda następcza’).

Loss causation

Yes/ No/ N/A

Additional comments, if any.

8

Did the country that you are reporting about issue lockdown, stay-at-home or no-travel restrictions in response to Covid-19?

Yes

9

If the answer to the question above is yes, were such orders issued nationally, by state/region or by local city/town. Please give a short description of the issuing authority and the orders issued.

On a national basis. There were mostly acts issued by parliament and regulations issued by the Council of Ministers or the Minister of Health. The main legal acts include:

  • Act dated 2 March 2020, on specific solutions related to preventing, counterfeiting and combating Covid-19, other infectious diseases and crisis situations caused by them (with all amendments);
  • Regulation of the Minister of Health dated 13 March 2020, on the declaration on the territory of the Republic of Poland of a state of epidemic emergency;
  • Regulation of the Minister of Health dated 20 March 2020, on the declaration on the territory of the Republic of Poland of a state of epidemic emergency;
  • Act dated 30 March 2020, on specific solutions related to preventing, counterfeiting and combating Covid-19, other infectious diseases and crisis situations caused by them (with all amendments);
  • Regulation of the Minister of Health dated 21 February 2021, on infectious diseases giving rise to the requirement for hospitalisation, isolation or home isolation and the requirement for quarantine or epidemiological surveillance;
  • Regulation of the Minister of Health dated 10 February 2022, on infectious diseases giving rise to the requirement of hospitalisation, isolation or home isolation and the requirement for quarantine or epidemiological surveillance.

10

If the answer to the above question is yes, were the lockdown, stay-at-home or no-travel restrictions mandatory or recommended?

The restrictions were mandatory.

11

If the country that you are reporting about did issue lockdown, stay-at-home or no-travel restrictions, were those orders suspended or revoked at any point in time? If the answer is yes, please give a short description of the timeline.

Yes

First wave

The first restrictions were introduced from 12 March 2020 and gradually revoked starting from 16 April 2020.

March – April 2020: first restrictions in Poland on national basis, mainly the cancellation of mass events planned in open and closed spaces, the closure of schools, compulsory wearing of face masks, limits to the number of people in shops, limits to the operation of shopping centres, bans on gatherings of over 50 people at a public, state or religious occasion; restaurants may only provide takeaway food; gyms, swimming pools, dance clubs, fitness clubs, museums, libraries, theatres, cinemas etc are closed.

Moreover, from 24 March 2020 to 11 April 2020 there were restrictions on movement except for subsistence, health and work purposes.

April – July 2020: stages of lifting of restrictions on national basis:

  • 20 April 2020 – the first stage of lifting restrictions – allowing movements for recreational purposes and access to green areas, etc;
  • 4 May 2020 – the second stage of lifting restrictions – opening of shopping centres, opening of nurseries and kindergartens, etc;
  • 18 May 2020 – the third stage of lifting restrictions – reopening of hair and beauty salons, reopening of restaurants and cafés under strict conditions, etc;
  • 30 May 2020 – the fourth stage of lifting restrictions – abolishing the order to wear face masks in open public spaces, etc.

Second wave

August 2020 – counties divided into green, yellow and red ones. In red counties the strongest restrictions applied; in yellow counties weaker restrictions; and in green counties the rules were not tightened.

17 October 2020 – sanitary regime was introduced with the division into yellow and red zones. On 23 October, the whole of Poland was declared a red zone and new rules were introduced on the national basis.

November 2020 – reintroducing of the restrictions mentioned above. On 21 November the government has published a plan to continue the fight against Covid-19 – ‘100 days of solidarity’. This comprehensive action plan called for the gradual unfreezing of the economy in two basic stages: responsibility and stabilisation. There was also a possibility of introducing a national quarantine, which would come about as a last resort if there is the sudden need to reduce the transmission of the virus drastically.

Third wave

February – April 2021: restrictions were introduced at a national level, mainly the suspension of activities by some facilities such as individual shops/stores in shopping centres, theatres, museums, art galleries which could only operate online; fitness clubs and gyms remained closed. In addition, in grades I-III, online learning was reintroduced.

Fourth wave

October 2021 – December 2021: the non-wearing of face masks in public spaces was sanctioned by fines; all facilities were to be operated in accordance with a strict sanitary regime.

As of 1 March 2022, limits and restrictions have been lifted. Current restrictions entail social-distancing, the wearing of face masks, differentiated restrictions regarding quarantine and isolation and restrictions regarding arrival quarantine.

12

If the answer to the above question is yes, were subsequent lockdown, stay-at-home, or no-travel restrictions issued at any point in time? Please give a short description of the timeline.

Yes

Some of the restrictions were reintroduced and later lifted during subsequent Covid-19 waves starting in October 2021.

Please refer to the timeline in the response to Question 11.

13

Has the country that you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is a ‘cause’ of insured loss?

No

We are not aware of any judicial opinions or guidance.

14

Has the highest court in the country you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is a ‘cause’ of insured loss? If the answer is yes, please give a short description of the conclusions in the judicial opinions or guidance.

No

15

If the answer to the question above is yes, did the highest court in the country you are reporting about determine that losses related to Covid-19 were ‘caused’ by the virus? Please give a short description of the conclusions in the judicial opinions or guidance.

N/A

16

If the answer to the above question is no, did the highest court in the country you are reporting about determine that losses related to Covid-19 were ‘caused’ by government lockdown or stay-at-home orders? Please give a short description of the conclusions in the judicial opinions or guidance.

No

17

Has the country that you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is an ‘originating cause’ of insured loss? If the answer is yes, please give a short description of the conclusions in the judicial opinions or guidance.

No

18

If the highest court in the country you are reporting about has not issued judicial opinions or guidance analysing whether Covid-19 is a ‘cause’ of insured loss, have other courts in the country issued such opinions?

No

19

If the answer to the above question is yes, have courts in the country you are reporting on interpreted this issue consistently? In other words, is there uniformity in jurisprudence as to whether Covid-19 is a ‘cause’ of insured loss? Please give a short description of the conclusions in the judicial opinions or guidance.

N/A

20

If the answer to the above question is yes, do courts in the country you are reporting about hold that losses related to Covid-19 were ‘caused’ by the virus? Please give a short description of the conclusions in the judicial opinions or guidance.

N/A

21

If the answer to the above question is no, do courts in the country you are reporting about determine that losses related to Covid-19 were ‘caused’ by government lockdown or stay-at-home orders? Please give a short description of the conclusions in the judicial opinions or guidance.

No

To date, there are no published court decisions, opinions or guidelines on this matter.

22

Has the highest court in the country you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is an ‘originating cause’ of insured loss?

No

23

If the highest court in the country you are reporting about has not issued judicial opinions or guidance analysing whether Covid-19 is an ‘originating cause’ of insured loss, have other courts in the country issued such opinions? If yes, please give a short description of the conclusions in such judicial opinions or guidance.

No

24

Has the country that you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is a covered ‘event’?

No

25

Has the highest court in the country you are reporting about issued judicial opinions or guidance analysing whether Covid-19 is a covered ‘event’? Please give a short description of the conclusions in the judicial opinions or guidance.

No

26

If the answer to the question above is yes, did the highest court in the country you are reporting about determine that losses related to Covid-19 were covered ‘events’? Please give a short description of the conclusions in the judicial opinions or guidance.

N/A

27

If the highest court in the country you are reporting about has not issued judicial opinions or guidance analysing whether Covid-19 is a covered ‘event’, have other courts in the country issued such opinions?

No

28

If the answer to the above question is yes, have courts in the country you are reporting on interpreted this issue consistently? In other words, is there uniformity in jurisprudence as to whether Covid-19 is a covered ‘event’? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

29

If the answer to the above question is yes, do courts in the country you are reporting about hold that losses related to Covid-19 are covered ‘events’? Please give a short description of the conclusions in the judicial opinions or guidance.

N/A

30

If the answer to any of the above questions regarding your country’s jurisprudence was no, please comment on whether there are any other official sources or authorities that have issued contributions to the interpretation of Covid-19 in the context of loss causation.

No

Aggregation of claims

Yes/ No/ N/A

Additional comments, if any.

31

Does the country you are reporting on permit aggregation of claims arising out of a single originating cause? Please give a short description of the legal basis.

No

There are no guidelines or case law. A court will decide on a case-by-case basis, taking into account the wording of the relevant policy.

32

Does the country you are reporting on permit aggregation of claims arising out of a single cause? Please give a short description of the legal basis.

No

There are no guidelines or case law. A court will decide on a case-by-case basis, taking into account the wording of the relevant policy.

33

Does the country you are reporting on permit aggregation of claims arising out of a single event? Please give a short description of the legal basis.

No

There are no guidelines or case law. A court will decide on a case-by-case basis, taking into account the wording of the relevant policy.

34

Does the country you are reporting on use an accepted test for determining whether claims can be aggregated? For example, does the country you are reporting on apply to four unities test to determine whether aggregation is appropriate? Please give a short description of the legal basis.

No

There is no accepted test with respect to the aggregation of claims.

35

Have courts in the country you are reporting on issued jurisprudence concerning whether insureds can aggregate claims arising out of Covid-19? Please give a short description of the legal basis.

No

36

Has the highest court in the country you are reporting about issued judicial opinions or guidance concerning whether insureds can aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

No

37

If the answer to the question above is yes, did the highest court in the country you are reporting about determine whether insureds can aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

38

If the highest court in the country you are reporting on has not issued such jurisprudence, have other courts in the country you are reporting on interpreted this issue consistently? In other words, is there uniformity in jurisprudence as to whether insureds may aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

No

39

If the answer to the above question is yes, do courts in the country you are reporting about permit insureds to aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

40

Do the courts in the country you are reporting on permit an insured to aggregate claims related to multiple properties or business locations arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

No

There are no guidelines or case law. A court will decide on a case-by-case basis, taking into account the wording of the relevant policy.

41

Do the courts in the country you are reporting on permit an insured to aggregate claims related to multiple lockdown or stay-at-home orders arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

No

There are no guidelines or case law. A court will decide on a case-by-case basis, taking into account the wording of the relevant policy.

42

Have courts in the country you are reporting on issued jurisprudence concerning whether cedents can aggregate claims arising out of Covid-19? Please give a short description of the legal basis.

No

43

If the answer to the above question is yes, have courts in the country you are reporting on interpreted this issue consistently? In other words, is there uniformity in jurisprudence as to whether cedents may aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

44

If the answer to the above question is yes, do courts in the country you are reporting about permit cedents to aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

45

If the answer to any of the above questions regarding your country’s jurisprudence was no, please comment on whether there are any other official sources or authorities that have issued contributions to the interpretation of Covid-19 and aggregating claims.

No

There are no guidelines in this respect.

Property damage

Yes/ No/ N/A

Additional comments, if any.

46

Have courts in the country you are reporting on issued jurisprudence concerning whether losses arising from Covid-19 qualify as property damage losses? Please give a short description of the legal basis.

No

47

Has the highest court in the country you are reporting about issued judicial opinions or guidance concerning whether losses arising from COVID-19 qualify as property damage losses? Please give a short description of the conclusions in such judicial opinions or guidance.

No

48

If the answer to the question above is yes, did the highest court in the country you are reporting about determine whether losses arising from Covid-19 qualify as property damage losses? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

49

If the highest court in the country you are reporting on has not issued such jurisprudence, have other courts in the country you are reporting on interpreted this issue consistently? In other words, is there uniformity in jurisprudence as to whether losses arising from Covid-19 constitute property damage? Please give a short description of the conclusions in such judicial opinions or guidance.

No

50

If the answer to the above question is yes, do courts in the country you are reporting about permit insureds to aggregate claims arising out of Covid-19? Please give a short description of the conclusions in such judicial opinions or guidance.

N/A

51

If the answer to any of the above questions regarding your country’s jurisprudence was no, please comment on whether there are any other official sources or authorities that have issued contributions to the interpretation of Covid-19 and property damage.

No

There are no guidelines in this respect.

Exclusions

Yes/ No/ N/A

Additional comments, if any.

52

Has Covid-19 been deemed a ‘natural peril’ in the country you are reporting on? Please give a short description of the legal basis and relevant jurisprudence.

No

There is no case law in this respect.

53

Has Covid-19 been deemed force majeure in the country you are reporting on? Please give a short description of the legal basis and relevant jurisprudence.

No

Several first-instance courts decided that for the purpose of the dispute at hand Covid-19 cannot be deemed a force majeure event. For example, the District Court in Warsaw decided that the pandemic is not a force majeure event which causes a suspension of contract performance (case file XXVIGC 222/20). The decisions were rendered in individual cases and they are not precedents for future court decisions.

54

Is Covid-19 acknowledged as a notifiable disease in the country you are reporting on? Please give a short description of the legal basis and relevant jurisprudence.

Yes

Legal basis: Act dated 2 March 2020 on special solutions aimed at preventing, counteracting and combating Covid-19, other diseases and related crises.

55

Is it common for insurance policies issued in the country you are reporting on to include a pandemic or virus exclusion? Please give a short description of the legal basis and common insurance practice.

Yes

It is common in the Polish market for a property and business interruption policies to contain a virus or epidemic exclusion. The legal basis for such an exclusion is the Civil Code.

56

Have any courts in the country you are reporting on determined that a pandemic or virus exclusion is void as against public policy in the context of Covid-19? Please give a short description of the legal basis and relevant jurisprudence.

No

57

Have any courts in the country you are reporting on otherwise determined that a pandemic or virus exclusion is unenforceable in response to Covid-19? Please give a short description of the legal basis and relevant jurisprudence.

No

58

If the answer to any of the above questions regarding your country’s jurisprudence was no, please comment on whether there are any other official sources or authorities that have issued contributions to the interpretation of Covid-19 in the context of exclusions.

No

Regulatory oversight

Yes/ No/ N/A

Additional comments, if any.

59

Have insurance regulators in the country you are reporting on issued directives concerning coverage for claims arising out of Covid-19? Please describe the regulations that have been implemented.

No

60

Are regulators requiring or encouraging insurers to provide grace periods to insureds to make payments on premiums? If yes, please give a short description of the legal basis and relevant guidance.

No

Government action

Yes/ No/ N/A

Additional comments, if any.

61

Has the government in the country you are reporting on implemented relief measures for losses sustained as a result of Covid-19?

Yes

62

If the answer to the above question is yes, are the relief measures available to both individuals and businesses?

Yes, relief measures are available for individual and business.

63

Briefly describe the types of relief measures available to individuals and businesses.

The government adopted several relief measures for businesses, including low-interest loans, tax exemptions, and exemptions from paying social security contributions.