The current situation of COVID-19 has created an unknown scenario for all companies, both large and small, as well as for professionals and employees. This unprecedented scenario has served to analyze the insurance coverage programs and business plans of all subjects involved in the economy.
We are in a situation where legal rules and norms must coexist with health standards. According to the different disciplinary codes, several obligations are also generated for the owners of the establishments, whose non-compliance with the new regulations may cause different liabilities.
Each insurance company and each policy adopts its particular conditions, so these forecasts must be taken into account based on what is determined in particular by the policy and in general by the laws applicable in each country or region, in addition to being personalized to each company, casuistic and situation…
In this brief article we will focus specifically on the tourist industry and its insurers with the intention to present a general overview of the current situation and a preparation for possible claims related to this virus.
Circumstances for the hotel industry in relation to the risk of liability claims.
Surely, the COVID-19 crisis will mark a paradigm shift in the ways of working and infections could generate disease claims by guests, mainly if there is omission by the hotel in the management of protective measures.
The possibility of receiving a complaint from an affected third party who has contracted the disease within the hotel is high, and therefore all necessary preventive measures should be taken to reduce the possibility of contagion.
A guest who has been staying at a hotel, and who has contracted COVID-19 may claim that the source of contagion existed at the hotel, and that the hotel did not take all necessary precautionary measures to prevent that from happening. Therefore, if a liability claim occurs against the hotel for a negligent or culpable action, it will have to be determined whether the damage caused is true and evaluable.
Non-contractual liability by default in the prevention of Coronavirus contagion (COVID-19)
In relation to the different responsibilities, the contractual liability is highlighted, which derives from the relationship between the hotel and its guests.
Basically, to attribute responsibility it is necessary to comply with the following conditions:
- Action or omission by a person (hotel) that generates a lack of diligence in the exercise of his obligations.
- There must be a causal relation between the action or omission and the damage that occurs.
- Damage to the person, i.e. who has fallen ill with COVID-19.
The jurisprudence and doctrine explain that negligence is omission, an action without the proper level of care so the lack of precautions, which have generated any damage, is the one that will provoke the hotels liability. This is precisely what pushes hotels to take all prevention procedures.
Recommendations for the hotel industry
The World Health Organization has declared the international health emergency on behalf of the rapid expansion of coronavirus. Some countries have already activated their reopening protocols consisting of several phases. With the first phase of de-escalate underway, there are companies that have already reopened their hotels and others that have begun to prepare their return gradually, we suggest that they should conform to the following rules:
- As a first step, the recommendation to avoid claims, linked to possible COVID-19 contagions, is to conform to safety and hygiene protocols.
- All hotels must communicate to the guest all the information on the rules and conditions restrictive of the use of facilities. It is essential to ensure that guests are aware of this before confirming their reservation.
- In addition, it is important that this warning is written so they understand it clearly so it can avoid future claims. In this way, by complying with safety and hygiene protocols and applying these measures, a possible claim of civil liability would be mitigated.
- Protocols should be developed in case of a suspected COVID-19 positive at the hotel and what hygienic measures should be taken later if it is any guests infected.
- A waiver could be presented to the guests before or upon arrival in which they declare that they will not hold the hotel or the tour operator liable for any possible contagion of COVID-19 and/ or possible consequences.
Recommended steps in cases of claims for COVID-19 contagion
Taking into consideration that there is no vaccine or safe treatment to the disease yet and tourists move within the place, the possibility of contagion will be latent and, therefore, it may happen that the client reports that he or she contracted the virus at the property. The insured, in this case, the hotel, must manage the claim through its risk department and give intervention to its liability insurer and/ or to its network of professionals involved in this type of claims.
Whenever there is a claim against the hotel for an alleged COVID 19 contagion, it is necessary to determine:
- That the damage caused is real.
- In case it is determined, if the victim became infected with COVID-19 inside the hotel premises.
- If the guest could have been infected outside the establishment, which in most cases may be an alternative cause for the (alleged) contagion.
Given the above, it becomes clear that is very important to the hotels that they are able to provide sufficient corroborative material in order to demonstrate that they have taken the correct and sufficient precautions available to avoid the contagion.
Advanta Global Services is ready to assist in any situation related to liability claims arising from COVID-19 contagion. Our specialists are prepared to initiate the investigations necessary and to face these disputes at hand considering the special interests of our clients.
Sebastián is a lawyer with more than 10 years’ experience in the legal field. He specialises in executive hearings, damage claims, internal judgements, labour claims and liability issues. He has provided counsel for companies in legal matters, including all types of procedures within the civil and commercial jurisdictions.
Sebastián joins Advanta Miami’s team to contribute to the development of the Liability Division not only within the Anglo-Saxon market but also in the Latin American region.
Masters in Law, LLM in International and European Law (University of Amsterdam), Insurance Laws and Liability Programs (Erasmus University of Rotterdam & University of the Dutch Caribbean), Insurance Law and Liability certification (NIBE-NVV, Dutch Association for Banking and Insurance Professionals), Personal Injury and Liability courses (NIVRE, Dutch Association for Registered Adjusters), Netherlands member association of FUEDI – ELAE, Member of VASR (Society for Liability and Compensation Law), Member of AJV (Dutch Caribbean Lawyers Association), Certified Mediator (The LimeTree).
Maurits is a loss adjuster with extensive experience in the fields of international liability and related insurance matters and over 15 years of experience in the Dutch Caribbean and in the Netherlands. He has developed his career as a lawyer and a claims adjuster in international credit insurance claims and he is specialized in out of court settlements of personal injury and recourse claims in the EU, USA, Latin America and the Caribbean.
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