Weather accident insurance company

Force majeure refers to an objective situation that cannot be foreseen, avoided and overcome. Its subjective elements are unforeseeable and an objective phenomenon of force majeure, and the objective elements include inevitable and insurmountable.

Typical force majeure includes natural disasters and social abnormal events. After the actor encounters force majeure, he can't control and prevent the damage. In this case, there is no legal causal relationship between the actor's behavior and the occurrence of damage, and he usually does not have to bear the liability for breach of contract.

Corresponding to the law that the actor is exempted from the liability for breach of contract when the damage is caused by force majeure, the insurer does not have to bear the liability for compensation for force majeure in the exemption clause. The force majeure of different types of insurance is different. The following article will take the project guarantee insurance as an example to analyze its relationship with force majeure.

Is the insurance company responsible for force majeure?

In the project guarantee insurance with the performance credit risk as the insurance subject, the dangerous accident for which the insurer is liable for compensation is only the subjective harm caused by the applicant's bad credit, not the accident or force majeure.

Therefore, the "Four Model Regulations on Construction Project Guarantee Insurance" formulated by China Insurance Association (hereinafter referred to as the "Model Regulations") makes it clear that the insurer is not responsible for compensation for losses, expenses and responsibilities caused by natural disasters such as floods, typhoons, earthquakes and tsunamis and other force majeure reasons; If the bidding documents/construction contract of the construction project cannot be fulfilled due to force majeure, the insurer shall not be responsible for compensating the insured for the distribution of benefits, the bearing of expenses and the sharing of losses agreed or determined between the insured and the insured, and all losses arising therefrom.

Judging from the method of force majeure clause, the model clause adopts comprehensive clause, that is, comprehensive generalization and enumeration. On the one hand, four natural disasters such as flood, typhoon, earthquake and tsunami are clearly listed as force majeure accidents, on the other hand, the exemption situation is summarized by "other force majeure reasons". This "including but not limited to" regulation mode is flexible and can adapt to changeable situations, such as earthquake, plague, riot, martial law, riot, war, etc. as stipulated in the special contract clauses of Construction Contract (Model Text) (GF-20 17-020 1).

From the way of sharing the consequences of force majeure, the model clause is clear: the insurer shall not be liable for the losses, expenses and responsibilities directly caused by force majeure, as well as the indirect loss sharing and expenses bearing. Of course, according to the Supreme People's Court's Interpretation on the Application of Several Issues (II), the insurer shall fulfill the obligation of explanation for the agreement that the losses caused by force majeure factors shall not be compensated, bear the burden of proof after the terms are explained, and bear the explanation that is not conducive to itself in the case of unclear agreement.

Is the insurer affected by force majeure?

Although the insurer is not responsible for force majeure and its losses, it will be affected by force majeure to some extent, such as the extension of the insurance period.

In the performance bond insurance, the insurance period ends on the date when the project is completed and accepted. Generally speaking, if the construction project cannot be completed on schedule due to the insured or a third party, the insurance period of the insurance contract shall not be extended. However, due to force majeure, it should be postponed reasonably. The model clause also stipulates that if the construction project cannot be completed due to force majeure or the applicant's own reasons, the insurance period of the insurance contract will be postponed to the completion of the project.

It should be noted that, according to Article 590 of the Civil Law, "If it cannot be performed due to force majeure, it shall not be exempted from the liability for breach of contract". If the project has been delayed before the occurrence of force majeure and the project that should have been completed is not completed, the insured shall not be exempted from the liability for breach of contract due to force majeure. However, the model clause "If the construction project cannot be completed due to force majeure or the applicant's own reasons, the insurance period of the insurance contract will be postponed" allows the insurance period to be postponed. At this time, the applicant should pay the insurance premium corresponding to the extended insurance period according to the requirements of the insurer, and the insurer will issue the approval form.

Special circumstances of the insurer affected by force majeure.

Among the four model clauses, advance payment guarantee insurance, as a highly independent insurance, is largely independent of the basic contract-construction contract, and its insurance liability and liability exemption are special, so the insurer is different from other types of insurance due to force majeure.

First of all, the model clause stipulates in the insurance liability: during the insurance period, the insured and the applicant agree to change the construction contract of the construction project, and the insured or his authorized representative explicitly instructs to change the scope or nature of the project, and the insured or his authorized representative agrees to extend the construction period according to the construction contract, which will not affect the insurer's liability under this insurance contract after the insurer's written consent. As force majeure is an important factor leading to the change of construction contract, the change of project scope or nature and the extension of construction period, in these cases, the insurance liability is not affected by force majeure.

Therefore, the exemption from liability in these cases is not affected by force majeure. Therefore, around the exemption of liability, the model clause also adds the premise of "without the written consent of the insurer" to the force majeure clause, that is, when the insured fails to perform all the advance payment agreed in the construction contract or offset the balance of the project payment that the insured should pay to the insured due to force majeure, only without the written consent of the insurer, the insured and the insured agree or determine the distribution of benefits, expenses and losses, as well as all the losses, expenses and responsibilities arising therefrom.

In short, from the perspective of liability, the insurer's insurance liability in bid guarantee insurance, performance guarantee insurance and quality guarantee insurance is affected by force majeure, and it does not bear the direct and indirect losses caused by force majeure factors; Advance payment guarantee insurance depends on whether the situation is approved by the insurer in writing. From the perspective of period extension, in performance guarantee insurance, the insurer can extend the insurance period for the insured; In advance payment guarantee insurance, the insured can also take the initiative to obtain the written consent of the insurer, thus safeguarding his right to claim for insurance money.

Therefore, for force majeure, the insurer, the insured and the insured should analyze the specific situation. On the one hand, it is necessary to avoid the mindset that "force majeure" cannot be settled; On the other hand, when concluding a contract, the responsibilities, obligations and expenses of both parties after the occurrence of force majeure should be specified in detail, and the choice of litigation and arbitration and the conditions for exercising the priority of compensation should be clarified.