The managing director of Dublin city centre bar-restaurant Lemon and Duke has told the High Court he was given direct assurances from FBD that its policy covered business disruption losses caused by Covid-19.
Noel Anderson, also a vice-chairperson of the Licenced Vintners’ Association (LVA), told the court he specifically switched insurers to FBD in early March of this year after he became very concerned about the virus.
Despite being initially “thrilled” and “relieved” to get insurance which he thought would cover Covid-19, he was “outraged” after FBD informed him in April the policy did not cover business losses caused by the pandemic.
Mr Anderson was giving evidence before Mr Justice Denis McDonald on the second week of the hearing of test cases by four pubs arising out of FBD's refusal to indemnify them for the disruption to their businesses due to Covid-19.
In reply to his counsel Michael Cush SC, Mr Anderson said he first became concerned about the impact of Covid-19 in mid-February.
Others believed he was overreacting, was “stone mad” and there was “a million to one chance the pubs would be closed”.
He said people win the lotto “at big odds” and he had made enquiries to see if the premises’ previous insurance policy would cover losses in the event of the business being closed due to Covid-19.
When he discovered the previous policy did not cover Covid-19, he said a fellow publican told him FBD’s policy appeared to provide coverage, and he made contact with the insurer.
Mr Anderson, whose partners in the bar-restaurant include Irish rugby players Sean O'Brien, brothers Dave and Rob Kearney and Jamie Heaslip, said he spoke to FBD representatives in early March and was told that FBD "were covering coronavirus" for pubs.
Very clear
He said he was very clear he wanted cover for wages, losses and rent in the event of a lockdown, and FBD was under “no misapprehension” as to what he wanted.
After receiving assurances the policy covered business disruption caused by Covid-19, he moved the businesses’ insurance to FBD, which he said was a relief after “suffering sleepless nights”.
The policy in relation to the Lemon and Duke, which is currently trading as a restaurant only, covered losses up to €3.2 million, he said.
The Government made a decision to close the pubs on March 15th, he said.
A meeting took place between representatives of the LVA and senior FBD staff, including its chief executive, Fiona Muldoon, on St Patrick's day.
He said following that meeting he believed FBD would “renege on their agreement to provide publicans with business interruption cover”.
In April he said he was formally informed by FBD that it would not provide coverage. He was astonished by this and felt the insurer’s attitude was “disingenuous, and completely dishonourable”.
Under cross-examination from Remy Farrell SC for FBD, Mr Anderson said getting assurances that the insurance policy covered any closure arising out of Covid-19 was always to the fore of his mind when he discussed becoming a customer of FBD.
Mr Anderson said he had asked “very direct questions” and sought “very direct answers” from FBD’s representatives over Covid-19 coverage.
“I just want what is rightfully owed,” he added.
Also giving evidence was Christopher Kelly, whose group of companies owns 11 pubs employing 300 people, "90 per cent of whom he said had to be laid off" due to the impact of the pandemic.
In reply to his counsel James Doherty SC, Mr Kelly said his businesses had over many years paid FBD €3 million for insurance, and had only made claims of approximately €300,000.
Outbreak
He said he had a good relationship with them, and had declined to switch insurers because the other policies did not provide cover for things including the outbreak of disease.
As far as he was concerned the plain English used and the words contained in the policy meant his businesses were covered for the losses caused by the impact of Covid-19.
As all the criteria had been met, he said FBD should have paid out but did not. “We should not have to be here today,” he said.
He also spoke of his concerns for his employees within the group, adding that he had a grown employee with young children come to him “in tears” over fears they could not pay their mortgage.
The actions have been taken by Dublin bars Aberken, trading as Sinnotts Bar; Hyper Trust Ltd, trading as The Leopardstown Inn, and Inn on Hibernian Way Ltd trading as Lemon & Duke.
The fourth action is by Leinster Overview Concepts Ltd, which trades as Sean's Bar in Athlone, Co Westmeath.
They claim that under their insurance policies taken out with FBD they are entitled to have their consequential losses covered by what they claim is an insurable risk.
They also claim that the insurer is in breach of contract.
The publicans claim the insurance policies taken out with FBD have a clause that states the pub owners will be indemnified if their premises are closed by order of the local or Government authority if there are “outbreaks of contagious or infectious diseases on the premises or within 25 miles of same”.
FBD disputes that claim and says the closures did not occur as a result of an outbreak of disease at the premises or areas where the pubs are located.
The hearing continues.
