and externally, while maintaining a record of these visits. Although the Association of British Insurers has stated that some insurers have waived these conditions due to the lockdown, it remains important to check if this is the case with your insurer. To make a claim, you will also have to prove financial loss. Gambling businesses solely operating online are unlikely to be able to claim under a business interruption insurance policy if they are operating as normal. Those with both physical and online operations will need to prove that the closure of the physical premises has resulted in loss. This shouldn’t be too hard to prove for betting shops, as sporting events across the globe were suspended, leaving players with little in the way of betting options. The existence of a parallel online platform can also prove an attempt to mitigate losses, which would help the claim.

What about insurance brokers who recommended the policy in the first place?

If I’ve made a claim, when will I receive payment?

Insurers have yet to confirm when they will pay out on their claims, and how much. The FCA has called for insurers to handle and assess business interruption insurance claims promptly and fairly where they have accepted liability. Your insurer may have been making deductions for some types of Government support you received during lockdown (such as the small business grants of £10,000; the hospitality business grants of £25,000, and the furlough scheme). These assessments should not be used as an excuse to delay payment. Many businesses across the sector are struggling to

survive, and the progressive return of lockdown restrictions are not boding well. Holding off payment, at this stage, would not only be legally contestable, it would also be morally incorrect. It’s a short-term non-solution, which will damage an insurer’s reputation in the long term – ultimately causing greater loss.

What if I haven’t claimed yet?

Each policy wording is unique, which is why the first step is to get yours reviewed by a professional as soon as possible. Most policies set out claims conditions which require policyholders to notify them of an event which may give rise to claim “as soon as possible”, or in some cases “immediately”. If a policyholder does not comply then in most cases, insurers will be entitled to reject the claim. Although it is hoped that insurers will be lenient with regards to this issue, the risk is that many businesses across the sector may have left it too late to claim. For your claim to be valid, your policy may also

require you to notify your insurer that your premises are vacant, and inspect them weekly, both internally

36 NOVEMBER 2020

Generally, brokers owe a duty to establish their clients’ insurance needs by taking instructions and having a good understanding of the business, then advising on different types of insurance products available to meet their clients’ needs, and finally, arranging that insurance. Claims against brokers may arise in the context of COVID-19 if a broker has not achieved these general duties, but this will depend on the specific agreement a business has in place with their broker. To bring a successful professional negligence claim against a broker, a business would need to prove that the broker owed them a duty, the broker breached that duty, and that breach caused the business loss. Whether a broker breached a duty towards a business will depend on the particular facts of a case. For example, if a business specifically requested pandemic insurance, the broker advised that there was cover for pandemic insurance in place, but it later turned out that this was incorrect, then a breach would be made out. But often, these cases are more nuanced. So, alternatively, if a business asked for advice on the type of cover they should consider obtaining then this is more general request and it may be difficult to prove that a broker failed in their duty if pandemic insurance wasn’t recommended or obtained. If breach can be made out, then the next hurdle to

overcome is causation. The business would need to show that but for the breach, the client would have taken out pandemic insurance. This may be difficult to prove as pandemic insurance is generally prohibitively expensive, so a business would need to prove that they regularly spent a significant amount on insurance and didn’t just opt for the cheapest option. Also, pandemic insurance was not readily available pre-COVID-19 and a business would need to prove that it was available on the market at the time the broker did not recommend or obtain it. Every case is fact sensitive and we would recommend

casinos and gambling businesses obtaining specialistic advice if you are considering bringing a claim against your broker.

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