Gordon & Rees’ Hurricane Ian Team Offers Unique Services for Insurers

Gordon & Rees’ team of experienced lawyers are here to help insurers address and meet the claims handling challenges resulting from Hurricane Ian. With offices in Tampa and Miami and attorneys throughout the state, our lawyers have assisted clients with the unique issues presented by other catastrophes, including Hurricane Andrew, Hurricane Charley, Hurricane Irma, and Hurricane Michael.

Our team has the experience and resources necessary to provide your claims department and individual claims professionals with the support necessary to manage a catastrophic claims volume promptly, efficiently, and effectively, while navigating the legal issues and changing regulatory environment resulting from Hurricane Ian. The experience and services offered by Gordon & Rees’ Hurricane Ian Team include:

  • Catastrophe Claims Handling Assistance: We support insurers and facilitate the prompt and efficient handling of the high volume of claims that result from disasters like Hurricane Ian. We can work with your team to develop catastrophe protocols, claims prioritization, investigation checklists and guidelines, and templates for reservation of rights letters and protocols to ensure the orderly and prompt payment of claims. We can coordinate loss inspections and investigations, take examinations under oath, assist with fraud detection, and quickly provide legal opinions on coverage issues as they arise.
  • Claims Handling Statutes and Regulations: Compliance with unfair claims handling statutes, regulations, and executive orders present challenges for insurers due to abbreviated response requirements for a high volume of multijurisdictional claims. Insurers that do not implement procedures to ensure compliance with claims handling statutes and insurance regulations may face extra-contractual exposure. Gordon & Rees lawyers can assist with the interpretation of and compliance with applicable statutes and regulations.
  • Litigation Coordination: We work with insurers to develop and create action plans for post-hurricane litigation to improve outcomes, create uniformity, and ensure cost efficiency for hurricane litigation operations.  To that end, we assist insurers in monitoring performance and offering oversight and guidance of the hurricane litigation process to ensure that efficiencies and optimizations of action plans are being realized.  In addition, we develop coverage strategies and dispositive motions for the application of policy exclusions and endorsements as they relate to preexisting damage and other non-covered perils and develop consistent defense litigation strategies by working closely with insurers and their defense counsel to determine overall strategy and effectiveness in pre-trial, trial, and appellate matters. We are currently working with several clients and forensic meteorologists to carefully analyze the most up-to-date meteorological data to ensure the most accurate assessment of wind versus water and to evaluate the chronology of various perils based on specific loss locations.
  • Alternative Dispute Resolution: Gordon & Rees’ Hurricane Ian Team is experienced in various alternative dispute resolution methods.  In addition, members of our team are also Florida Circuit Civil Mediators certified by the Supreme Court of Florida and experienced in mediating and arbitrating a broad range of civil disputes, including Insurance Coverage Disputes, Forced Placed Insurance, Priority of Coverage, and Bad Faith disputes. Our experience both litigating and mediating provides us with a heightened appreciation of the expense and risk of litigation and we work closely with our insurance clients and can assist with Hurricane Ian claim disputes to find prompt and efficient resolution of claims through appropriate alternative dispute resolution processes to achieve an early resolution and minimize expense, where possible.
  • Appellate Experience and Trial Consulting: Gordon & Rees’ Hurricane Ian Team has several experienced appellate attorneys who are skilled in identifying potential appellate issues arising out of Hurricane Ian. Our attorneys work with insurers pre-suit to address potential disputes that might raise appellate issues as well as issues of first impression. We frequently represent insurers in cases involving cutting-edge areas where the case law is still developing, and where the result is likely to have portfolio-level implications for our clients. Our in-depth knowledge of the insurance industry, gained from decades of experience, provides us with the unique ability to understand and meet our clients’ needs and goals. In addition to direct representation of parties to an appeal, we have filed amicus briefs on behalf of insurance industry organizations regarding issues of special importance to the industry. Our appellate counsel has substantial experience attending trial to preserve issues for appeal and will provide candid and objective advice to clients on the important initial question of whether to pursue an appeal or writ petition.
  • Business Interruption Claims: Business interruption claims present significant exposure to insurers. Business interruption insurance typically applies when the interruption results from direct physical loss of or damage to covered property as a result of a covered peril. First-party property policies may include civil authority and ingress/egress provisions that implicate coverage otherwise excluded. We can help you interpret policy language and exclusions pertinent to business interruption claims and provide practical advice and solutions to resolve these claims. Our attorneys have litigated business interruption issues throughout the United States, including claims that resulted from the 9/11 terrorist attacks and Hurricane Charley, Hurricane Katrina, Hurricane Sandy, Hurricane Irma, and Hurricane Michael.
  • Contingent Business Interruption Claims: Many first-party property policies provide coverage for contingent business interruption losses caused by physical loss of or damage to the property of the insured’s suppliers or customers as a result of a covered peril. Under these provisions, insureds throughout the country, or around the world, may seek coverage for contingent interruption losses due to suppliers or customers affected by Hurricane Ian. Our team can help you navigate the unique legal issues that result from these claims.
  • Flood Versus Wind/Rain Causation: Disputes over the cause of property damage or loss resulting from a hurricane are inevitable. First-party property policies often cover damage resulting from wind and wind-driven rain, but exclude or limit coverage for damage resulting from flood water. Hurricane Ian produced high winds and extensive flooding. The resulting property damage will lead to coverage disputes over the cause of the damage. Our attorneys can provide advice on the investigation and determination of coverage and, when necessary, litigate wind versus flood causation disputes.
  • Extra Expense Coverage: First-party property policies typically provide coverage for costs incurred by an insured to prevent, limit or mitigate future damages by minimizing the disruption of operations. Gordon & Rees’ Hurricane Ian Team has experience analyzing the policy language and factual circumstances to determine whether costs incurred by insureds qualify for extra expense coverage.
  • Additional Living Expenses: Additional Living Expense (“ALE”) claims by homeowners are expected to be significant given the widespread geographic storm surge resulting from Hurricane Ian. Gordon & Rees lawyers have managed and, when necessary, litigated ALE claims following hurricanes over the past 20 years.
  • Errors and Omissions Claims: As with other catastrophes, uninsured or underinsured storm victims may assert errors and omissions claims against their insurance agents or brokers. Our experienced insurance attorneys can assess coverage under professional liability policies in response to these claims, and Gordon & Rees’ professional liability defense team also can defend these claims throughout the region.

Retaining insurance counsel to address Hurricane Ian insurance coverage issues can help insurers manage their risk and mitigate their losses, while providing prompt and fair claims management to insureds. With more than 200 years of experience in Florida, collectively, and more than 1,000 attorneys throughout the country, Gordon & Rees is uniquely positioned to help you meet the challenges presented by Hurricane Ian.

The Washington Supreme Court Issues an Important Decision Regarding Insurance Coverage for Covid-Related Claims

The Washington Supreme Court recently issued an important decision that provides guidance on coverage for Covid-related claims and the application of Washington’s efficient proximate cause rule in Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co., 515 P.3d 525 (2022). In Hill & Stout, the Washington Supreme Court held that (1) Covid-related damages are not a “direct physical loss” and thus are not subject to property coverage, (2) the Virus Exclusion also precludes coverage, and (3) the efficient proximate cause rule does not mandate coverage.

The Hill & Stout case involved a dentist office (“HS”) that was insured under a property insurance policy (the “Policy”) issued by Mutual of Enumclaw Insurance Company (“MOE”). The Policy covered lost business income caused by a “direct physical loss of or damage to” the dentist office properties. The Policy also contained a Virus Exclusion that barred coverage “for loss or damage caused directly or indirectly by [a]ny virus … that induces or is capable of inducing physical distress, illness or disease.” The Virus Exclusion was amended by the Washington Changes Endorsement which, in relevant part, requires that in order for the exclusion to apply, the virus must “directly and solely result[] in [the] loss or damage,” or “initiate[] a sequence of events that result[] in loss or damage, regardless of the nature of any intermediate or final event in that sequence.”

HS tendered a claim to MOE for lost business income due to Governor Jay Inslee’s proclamation that prohibited non-emergency dental care for several months because of Covid (the “Covid Proclamation”). Notably, HS had actually ceased all non-emergency dental procedures several days before Governor Inslee issued the Covid Proclamation, and HS continued to have receptionists in its offices while the Covid Proclamation was in effect. MOE denied HS’s claim on the grounds that HS had not suffered a “direct physical loss” and that any alleged damages were barred by the Virus Exclusion. HS commenced a declaratory judgment class action lawsuit against MOE, and alleged that HS’s loss of business income due to Covid was covered since it was a “direct physical loss or damage as a result of the [Governor’s] proclamation[.]”

The primary issue in the case involved the meaning of the phrase “direct physical loss of or damage to” the insured properties, and whether HS’s inability to use its dentist offices due to the Covid Proclamation fell within this grant of coverage. Because the terms “physical” and “loss” were not defined in the Policy, the Supreme Court turned to a standard English dictionary to determine their meanings, and concluded that “physical loss of property” means “property that has been physically destroyed or that one is deprived of in that the property is no longer physically in their possession.” Hill & Stout, 515 P.3d at 532. The Supreme Court noted that the Covid Proclamation did not physically prevent HS from using its dental offices, especially given that HS’s offices remained open for emergency services and administrative staff continued to work there. As a result, the Supreme Court held that HS’s claim was not covered because there was no “direct physical loss of or damage to” its dental offices, holding as follows:

Accordingly, under the facts of this case we hold that the claim for loss of intended use and loss of business income is not a physical loss of property. HS was still able to physically use the property at issue. The property was in HS’s possession, the property was still functional and able to be used, and HS was not prevented from entering the property. Under the Proclamation, HS was not able to use the property in the way that it wanted, but this alleged “loss” is not “physical.” It is more akin to an abstract or intangible loss than a “physical” one.

Hill & Stout, 515 P.3d at 532.

The Washington Supreme Court also rejected HS’s request to apply the “loss of functionality test” for determining whether there had been a direct physical loss, as opposed to requiring that there be a physical alteration of the property. The Supreme Court recognized that the loss of functionality test had been applied in asbestos cases where the release of asbestos fibers contaminates property to such a degree “that its function is nearly eliminated or destroyed[.]” Hill & Stout, 515 P.3d at 532-33 (quoting Port Authority of New York & New Jersey v. Affiliated FM Insurance Co., 311 F.3d 226, 236 (3d Cir. 2002)). However, the Washington Supreme Court found that the “loss of functionality test” was inappropriate with respect to the subject claim “because there is no physical loss of functionality to the property.” Id. at 533 (emphasis original). The Washington Supreme Court held that the Covid “Proclamation did not physically cause a loss of functionality of the property because it continued to be functional.” Id. (emphasis original). Moreover, the Supreme Court held that “even under a loss of functionality test there must be some physical effect on the property” in order for there to be coverage under a property insurance policy. Hill & Stout, 515 P.3d at 534 (emphasis original).

The Washington Supreme Court further held that coverage was barred by the Policy’s Virus Exclusion and that the efficient proximate cause rule did not restore coverage. The Supreme Court noted that “the efficient proximate cause rule applies to mandate coverage when an initial covered peril sets a causal chain in motion and that causal chain includes later excluded perils.” Hill & Stout, 515 P.3d at 535. However, the rule does not operate in reverse, such that it does not “mandate exclusion [of coverage] when the casual chain is initiated by an excluded peril.” Id. Nonetheless, the Supreme Court noted that in its prior decisions “[w]e have left open the possibility that an insurer may draft policy language to deny coverage when an excluded peril initiates an unbroken causal chain.” Id. (quoting Vision One, LLC v. Phila. Indem. Ins. Co., 276 P.3d 300, 309 (2012)). The Washington Supreme Court found that the Virus Exclusion did in fact contain policy language that barred coverage when an excluded peril initiated the loss, because the Virus Exclusion had been amended by the Washington Changes Endorsement which, in relevant part, stated as follows:

We will not pay for loss or damage caused by any of the excluded events described below. Loss or damage will be considered to have been caused by an excluded event if the occurrence of that event:

b. Initiates a sequence of events that results in loss or damage, regardless of the nature of any intermediate or final event in that sequence.

Hill & Stout, 515 P.3d at 536.

The Washington Supreme Court held that “insurers can [include language in the insurance policy] contract to say that coverage is excluded for a causal chain initiated by an excluded peril. The exclusionary language in the policy does just that.” Id. The Supreme Court further found that it could not be reasonably disputed that Covid-19 caused Governor Inslee to issue the Covid Proclamation and HS’s loss. Accordingly, the Supreme Court held that the Virus Exclusion barred coverage, and reasoned as follows:

There is no issue of material fact needed to determine that COVID-19, an excluded peril, initiated the causal chain in this case and that the policy excludes the causal chain of losses initiated by an excluded peril. As the causal chain is initiated by an excluded peril, the efficient proximate cause rule does not apply to mandate coverage, and, under the language of this policy, the virus exclusion applies.

Hill & Stout, 515 P.3d at 537.

The Hill & Stout decision provides important guidance on coverage for Covid-related claims. However, the Washington Supreme Court’s holding regarding the efficient proximate cause rule is of even greater significance beyond just Covid-related claims because as the Supreme Court stated, “this issue will likely repeat in other cases regarding the interpretation of similar insurance policies[.]” Id. at 535. To the extent you have any questions regarding the Hill & Stout case or other issues involving insurance coverage, please feel free to contact the attorneys in the insurance coverage group at Gordon Rees Scully Mansukhani in Seattle.

Recent Developments Involving Cedell v. Farmers Insurance Company of Washington

Ever since the Washington Supreme Court’s 2013 decision in Cedell v. Farmers Insurance Company of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), insurance coverage attorneys have been struggling to define the exact parameters of the Cedell ruling in order to safeguard the attorney-client privilege as to the communications between the insurer and its counsel.  As a brief background, the Washington Supreme Court held in Cedell that there is a presumption of no attorney-client privilege in a lawsuit involving bad faith claims handling.  However, an insurer can overcome the presumption of no attorney-client privilege by showing that its counsel provided legal advice regarding the insurer’s potential liability under the policy and law, and did not engage in any quasi-fiduciary activities, i.e. claims handling activities, such as investigating, evaluating, adjusting or processing the insured’s claim.

Since Cedell, various trial courts have held that the following activities by an insurer’s counsel constitute quasi-fiduciary conduct that do not overcome the presumption of no attorney-client privilege, resulting in an order to produce documents and/or to permit the deposition of the insurer’s counsel:

  • Insurer’s attorney being the primary or sole point of contact with the insured for the insurer;
  • Insurer’s attorney requesting documents from the insured that are relevant to the investigation of the claim;
  • Insurer’s attorney communicating directly with the insured or the insured’s counsel regarding claims handling issues or payments;
  • Insurer’s attorney interviewing witnesses for purposes of the investigation of the claim;
  • Insurer’s attorney conducting an examination under oath of the insured;
  • Insurer’s attorney drafting proposed or final reservation of rights letter or denial letter to the insured; and
  • Insurer’s attorney conducting settlement negotiations in an underlying litigation.

Conversely, some trial courts have held that the following activities by an insurer’s counsel are not quasi-fiduciary activities, in that insurer’s counsel is providing legal advice and opinion, resulting in a valid assertion of the attorney-client privilege:

  • Insurer’s attorney drafting a coverage opinion on the insurer’s own potential liability, such as whether or not the insured is entitled to coverage under the policy and law;
  • Insurer’s attorney drafting a response to an insured’s Insurance Fair Conduct Act (“IFCA”) Notice.

With respect to drafting a response to an insured’s IFCA Notice, however, there are cases that have held that such an activity is a quasi-fiduciary one, to the extent the insurer’s counsel was also involved in claims-handling activities, such as drafting a proposed denial letter and/or coverage position/Reservation of Rights letter to the insured. 

Recently, in Young v. Safeco Ins. Co. of America, 2022 WL 1404650 (W.D. Wash. May 4, 2022), the Western District Court of Washington provided additional clarification on what qualifies as a quasi-fiduciary activity in terms of an IFCA Notice response drafted by insurer’s counsel.  In Young, the insured made a claim to Safeco under a Landlord Protection Policy as a result of the tenant, who was found deceased in the insured’s rental property, making modifications to the property without the insured’s permission.  The insured sought coverage for renovations due to the tenant’s vandalism and for biohazard damage from the decomposition of the deceased tenant’s body.  Safeco initially denied coverage.  Subsequently, however, in the IFCA Notice response, Safeco’s coverage counsel advised the insured’s counsel that Safeco would like “to cure” its breach by accepting coverage, that the two losses appeared to be “two separate claims”, that Safeco would “set up a second claim to address the renovations[,]” and asked the insured to provide an estimate to repair the renovations to the rental property at issue.  Id. at *3.  The Court further noted that the insurer’s coverage counsel wrote to insured’s counsel to dispute whether the estimate provided by the insured included damage to the rental property not covered by the policy, outlined the coverage and exclusions contained in that policy (similar to what would be in a Reservation of Rights letter or coverage position letter sent to the insured), and requested a second inspection of the rental property, none of which pertained to the provision of legal advice or counsel to the insurer.  Id.  Rather, the Court characterized such tasks as the insurer’s renewed attempts to evaluate and process the insured’s vandalism claim.  Id.  The Court ordered the production of documents that had originally been redacted as attorney-client privilege.

In light of the Young case, it appears that an IFCA Notice response drafted by insurer’s counsel should not include anything that could be construed as pertaining to claims-handling, i.e. a reversal of coverage position and a request for additional information related to a claim.  Moreover, it is recommended that any communications with the insured about the claim, i.e. a dispute the insured’s estimate including non-covered damage or to request an inspection, should be done by the adjuster, not the insurer’s counsel, in order to protect the attorney-client privilege as to the communications between the insurer and its counsel.

Another recent case that deserves attention is Water’s Edge, A Condominium Owners Association v. Affiliated FM Insurance Company, 2022 WL 3054209 (W.D. Wash. August 2, 2022).  In Water’s Edge, the Federal District Court for the Western District of Washington ordered the deposition of the insurer’s counsel as the Court found that the counsel had engaged in claims processing and handling (quasi-fiduciary) tasks by reviewing, on behalf of the insurer, the documents that Water’s Edge submitted to the insurer in support of its claim; participating in the investigation into the nature and extent of the property damage; and drafting the denial letter on behalf of the insurer. Id. at *3.  The deposition of insurer’s counsel was limited to those three categories. 

At first glance, this decision seems to indicate that reviewing materials submitted by the insured would qualify as a quasi-fiduciary task.  However, we believe that context is important in this regard – in Water’s Edge, the documents were reviewed presumably to draft the denial letter, which has already been established as a quasi-fiduciary activity.  As a result, to the extent the insurer’s counsel is reviewing insured’s documents in order to draft anything other than a coverage opinion that outlines and evaluates the insurer’s potential legal liability under the policy, then such activity could presumably be deemed as claims-handling.  If insurer’s counsel is reviewing the insured’s documents for purposes of coverage assessment and drafting a coverage opinion, such conduct and all documents related to that conduct would be protected by the attorney-client privilege. 

There is some ambiguity in the Water’s Edge decision with respect to the Court’s identification of insurer’s counsel’s participation in the investigation into the nature and extent of the damage as a quasi-fiduciary task.  Generally, an analysis of the “nature” of damage is conducted in order to assess coverage under the policy, i.e. is the damage covered property damage or precluded under an exclusion?  An analysis of the “extent” of damage, though, would presumably involve some aspect of claims handling in that it generally addresses the repair costs of damage.  We can only hope that other decisions will eventually shed some light on the issue of “nature” versus “extent” of damage.

This area of the law is ever-evolving and complex.  If you have questions about the implications of Cedell or any of the cases discussed herein, or have any general questions in regard to pending insurance claims and compliance with Washington insurance law, please feel free to contact our office.

Bad Faith in Oregon? The Oregon Court of Appeals Cracks Open the Door…

Oregon has for years been well known as a jurisdiction that generally does not recognize “bad faith” claims against insurers. This is because the Oregon courts have long suggested that such a tort claim by an insured generally exists only where the insurer has a “special relationship” with its insured, beyond the mere existence of an insurance policy. Such a relationship arises, for example, where the insurer agrees to defend its insured in a lawsuit brought by a third party. Unless that special relationship exists between the insured and insurer, the Oregon courts historically have limited an insured’s remedies against its insurer to contractual remedies.

Until now. In what appears to be a dramatic expansion of insurance coverage bad faith law in Oregon, the Oregon Court of Appeals held that an insurer’s alleged violation of Oregon claim handling regulations set forth in ORS 746.230(1) can provide the basis for a negligence per se claim against the insurer. Moody v. Oregon Community Credit Union and Federal Insurance Company, 317 Or. App. 233, ___ P.3d ___ (January 26, 2022). Resolving an issue of first impression in the policyholder’s favor, the Court concluded that the insurer’s breach of those regulations opened the door to tort damages, including the insured’s emotional distress damages caused by the insurer’s conduct.

The Moody case arose out of a claim for accidental death and a $3,000 life insurance policy. The insurer concluded there was no coverage and the insured sued, alleging breach of contract and negligence per se, the elements of which are that (1) defendant violated a statute; (2) plaintiff was injured as a result of the violation; (3) plaintiff was a member of the class of persons meant to be protected by the statute; and (4) the injury plaintiff suffered is of a type that the statute was enacted to prevent. At some point the insurer conceded coverage and paid the $3,000 policy limits.

The insurer moved to dismiss the negligence per se claim and the claim for emotional distress damages, arguing that well-established Oregon common law does not permit a policyholder to assert a negligence claim for what is essentially a breach of contract.

The insured opposed the motion, arguing that the insurer’s failure to conduct a reasonable investigation and settle the claim violated Oregon’s claim handling statute, thus providing the foundation for a negligence per se claim. That statute, ORS 746.230, prohibits the following actions by insurers during the claim handling process:

  1. Misrepresenting facts or policy provisions in settling claims;
  2. Failing to acknowledge and act promptly upon communications relating to claims;
  3. Failing to adopt and implement reasonable standards for the prompt investigation of claims;
  4. Refusing to pay claims without conducting a reasonable investigation based on all available information;
  5. Failing to affirm or deny coverage of claims within a reasonable time after completed proof of loss statements have been submitted;
  6. Not attempting, in good faith, to promptly and equitably settle claims in which liability has become reasonably clear;
  7. Compelling claimants to initiate litigation to recover amounts due by offering substantially less than amounts ultimately recovered in actions brought by such claimants;
  8. Attempting to settle claims for less than the amount to which a reasonable person would believe a reasonable person was entitled after referring to written or printed advertising material accompanying or made part of an application;
  9. Attempting to settle claims on the basis of an application altered without notice to or consent of the applicant;
  10. Failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made;
  11. Delaying investigation or payment of claims by requiring a claimant or the claimant’s physician, naturopathic physician, physician assistant or nurse practitioner to submit a preliminary claim report and then requiring subsequent submission of loss forms when both require essentially the same information;
  12. Failing to promptly settle claims under one coverage of a policy where liability has become reasonably clear in order to influence settlements under other coverages of the policy;
  13. Failing to promptly provide the proper explanation of the basis relied on in the insurance policy in relation to the facts or applicable law for the denial of a claim…

ORS 746.230(1).

The trial court agreed with the insurer and dismissed the claims regarding negligence per se and emotional distress.

The Court of Appeals reversed, however, thereby opening the door to first-party and third-party “bad faith” claims against insurers in Oregon, even though the Court did not utter the words “bad faith”. Such claims would appear to now be permissible if an insurer violates any of the above claim handling provisions.

In reaching its conclusion the Court first held that an insurer’s violation of Oregon’s claim handling statute could support a claim for negligence per se. Because the plaintiff alleged violations of ORS 746.230(1)(d) and (f), and also alleged the applicability of the other negligence per se elements, the Court held that plaintiff was entitled to proceed against the insurer on her negligence theory.

In its analysis the Court of Appeals expended much effort in attempting to distinguish Oregon case law that, up until that point, had been relied upon by insurers to reject related claims by policyholders. See Abraham v. T. Henry Construction, 230 Or. App. 564, 217 P.3d 212 (2009), aff’d on other grounds, 350 Or. 29, 249 P.3d 534 (2011); Georgetown Realty v. The Home Insurance Co., 313 Or. 97, 831 P.2d 7 (1992); Farris v. U.S. Fidelity, 284 Or. 453, 587 P.2d 1015 (1978). Farris in particular has been cited by insurers in Oregon for years to keep bad faith claims at bay, but the Moody court concluded that the insurers read Farris too narrowly and that Farris did not foreclose the relief sought by the insured.

In addition to holding that the insured’s negligence claim could proceed, the Court of Appeals also held that plaintiff could seek emotional distress damages arising from the statutory violations, another theory that had previously appeared to have been rejected by the Oregon courts.

Given the break with longstanding precedent that appeared to foreclose such causes of action and damages, it seems likely that this case is heading to the Oregon Supreme Court, which will have the last word on this subject.

McLaughlin v. Travelers

The Washington State Supreme Court recently issued a decision that clarified whether a bicyclist is a “pedestrian” for purposes of personal injury protection (“PIP”) coverage. McLaughlin v. Travelers Commercial Ins. Co., 476 P.3d 1032 (2020).

The case involved an accident whereby a parked motorist opened his car door and hit McLaughlin while he was riding a bicycle, resulting in injury. Travelers insured McLaughlin under an auto policy that provided up to $5,000 in MedPay coverage, which provides payments for injuries to an insured similar to PIP. Travelers issued the policy to McLaughlin when he lived in California, and continued to insure him after he moved to Washington. However, the MedPay coverage only applied to an “insured,” which was defined in the policy as “a pedestrian when struck by[] a motor vehicle.” The policy did not define the term “pedestrian.” Thus, the pertinent coverage issue in the case was whether McLaughlin could be considered a “pedestrian” while riding a bicycle.

Travelers denied coverage on the grounds that the vehicle codes of Washington and California excluded bicyclists from the respective State’s statutory definition of “pedestrian.” The Washington State Supreme Court disagreed and held that the applicable definition of “pedestrian” was found in the Washington statutes that apply to casualty insurance (RCW 48.22 et seq.), and not in Washington’s general motor vehicle code (RCW 46, et seq.) or the statutory title that applies to public highways or transportation (RCW 47, et seq.).

Specifically, the Supreme Court reasoned that RCW 48.22.005(11) defines “pedestrian” for purposes of casualty insurance as “a natural person not occupying a motor vehicle as defined in RCW 46.04.320.” In relevant part, RCW 46.04.320 defines “motor vehicle” as “a vehicle that is self-propelled[.]” The Supreme Court further noted that Washington case law has previously interpreted RCW 46.04.320 to mean that “a bicycle is not a motor vehicle.” City of Montesano v. Wells, 79 Wn. App. 529, 532, 902 P.2d 1266 (1995). The Supreme Court therefore concluded that because McLaughlin was not occupying a motor vehicle at the time of the accident, he qualifies as a “pedestrian” under RCW 46.04.320. McLaughlin, 476 P.3d at 1036.

The Supreme Court further supported its finding of coverage by acknowledging the public policy implications of insurance contracts and “Washington’s strong public policy in favor of the full compensation of medical benefits for victims of road accidents.” McLaughlin, 476 P.3d at 1037. The Supreme Court explained that “applying RCW 48.22.005(11)’s definition of pedestrian affords the insured the maximum protection provided by the insurance policy and is not unfair to the insurer.” Id.

As an additional, independent basis for finding coverage, the Supreme Court also concluded that the undefined term “pedestrian,” as used in the subject policy, was ambiguous. The Court noted that where there is ambiguity, “[a]ny legal ambiguity must be resolved in favor of the insured.” Id. Given the ambiguity surrounding the term “pedestrian,” the Court concluded that the term should be construed to encompass bicyclists because “[t]he average purchaser of insurance would expect to be covered by this policy when injured by an automobile.” Id. at 1038.

In contrast, the dissent objected to interpreting the policy pursuant to a Washington statutory scheme. It reasoned that the parties had not considered Washington law at the time they entered into the policy while the insured lived in California. Instead, the dissent would have applied the normal rules of contract interpretation to evaluate what the parties intended “pedestrian” to mean when they entered into the insurance contract in California. According to the dissent, the plain, ordinary meaning of “pedestrian” as provided for in a standard English dictionary does not include bicyclists. As a result, the dissent would not have found coverage in this instance, without any consideration as to Washington’s insurance statutes. McLaughlin, 476 P.3d at 1040-42 (dissent).

This case demonstrates the technical nature of interpreting legal terms in an insurance policy, and the Washington Court’s inclination to find coverage when it supports Washington’s public policy to provide full compensation for auto accident victims.

If you have questions regarding policy interpretation or insurance coverage generally, please feel free to reach out to a member of the insurance team at Gordon Rees Scully Mansukhani, LLP.

New Washington Regulation Requires Mandatory Language in an Insurer’s Denial Letter

The Washington State Office of the Insurance Commissioner (the “OIC”) has issued a new regulation, WAC 284-30-770, which mandates that insurers include specific advisory language in “adverse notifications” sent to insureds. Beginning on August 1, 2020, insurers will be required to include the mandatory language in any notice, statement, or document, wherein the insurer denies a claim, issues final payment for less than the amount of the claim submitted, makes an adverse benefit determination, or rescinds, terminates, cancels, or does not renew a policy. In any such notice, the insurer must include the following language:

“If you have questions or concerns about the actions of your insurance company or agent, or would like information on your rights to file an appeal, contact the Washington state Office of the Insurance Commissioner’s consumer protection hotline at 1-800-562-6900 or visit www.insurance.wa.gov. The insurance commissioner protects and educates insurance consumers, advances the public interest, and provides fair and efficient regulation of the insurance industry.”

This language must appear on either the first page or at the end of the adverse notification, and must be in the same font and font size as used in the majority of the notification. The OIC has advised that the purpose of the new rule is to “increase consumer awareness of available agency assistance and to help consumers with their insurance questions by requiring contact information for the Office of the Insurance Commissioner on adverse notifications.”

Many insurers already include similar language in claims correspondences sent to insureds in states other than Washington. Please be advised that beginning on August 1, 2020, insurers will also be required to include the above-stated language in certain adverse correspondences regarding insurance matters in Washington.

To the extent you have questions regarding this new regulation or another insurance-related issue, please do not hesitate to contact the insurance coverage team at Gordon Rees Scully Mansukhani, LLP.

Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits

Despite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met.

The Bill:

On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:

  • The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
  • The information is not available to the insurer without the assistance of the insured;
  • The written request provides the insured 60 days to respond;
  • The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
  • The insurer gives the insured an opportunity to cure, which must:
    • Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
    • Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.

A failure to cooperate defense acts as a defense to the portion of the claim materially and substantially prejudiced to the extent the insurer could not evaluate or pay that portion of the claim.

The duty to cooperate in a policy does not relieve the insurer of its duty to investigate or to comply with Colo. Rev. Stat. § 10-3-1104, the Unfair Claim Settlement Practices Act. Any language in a first-party policy that conflicts with this section is void as against Colorado public policy.

An insurer is not liable in a civil action based on a common law bad faith claim or under statutory violation of Colo. Rev. Stat. §§ 10-3-1115 and -1116 because the insurer provides the insured with the required amount of time to: (a) respond to the insurer’s written request with 60 days and (b) to cure the alleged failure to cooperate as required by the statute.

This act takes effect on September 14, 2020, except that if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section or part will not take effect unless approved by the people at the general election in the November 2020 election. In such case, it will take effect on the date of the official declaration of the vote by the governor.

Effect on Claims Handling:

Consistent with prior Colorado legal decisions, for an insurer to assert the failure to cooperate as a defense, the insurer must prove the insured failed to cooperate in some material and substantial respect and that the insurer was prejudiced. If these conditions were met, the insured forfeited his or her right to benefits under the insurance policy. This bill now requires an insurer to give written notice of a request for information, give the insured 60 days to respond, and the requested information must be information that a reasonable person would determine the insurer needs to adjust the claim or to prevent fraud. Further, the insurer must give the insured an opportunity to cure the failure to cooperate, including furnishing written notice of the failure to cooperate within 60 days of the alleged failure. These steps must be taken in advance of pleading a failure to cooperate defense in a court of law or an arbitration.

Attention must be paid to this bill as it will impact claims handling in first party insurance matters. If there are any questions regarding the above or if you need assistance with bad faith issues in Colorado, please contact the attorneys at Gordon Rees Scully Mansukhani, LLP.

Insurers Face Two New Cases Seeking Commercial Property Coverage For COVID-19; One Alleges Extracontractual Claims

Two Napa-based restaurants and a number of Chicago-area businesses claiming economic losses from closing their doors to prevent the spread of COVID-19 filed suits in California and Illinois, respectively, late last week. The plaintiffs in the Illinois suit allege statutory bad faith based, in part, on a memorandum setting forth the insurance company’s views on coverage and an alleged failure to investigate.

The owners of French Laundry, a prominent restaurant in Napa, California and another Napa establishment owned by prominent restauranteur Thomas Keller filed suit in Napa County Superior Court. See French Laundry Partners, LP d/b/a The French Laundry, et. al. v. Hartford Fire Insurance Company, et. al. The plaintiffs are represented by counsel including the Louisiana-based attorneys who filed the Cajun Conti case, believed to be the first case of its kind seeking coverage under a commercial property policy for business closures related to COVID-19. Additionally, owners of restaurants, pubs, and a theater in Chicago filed suit in the United States District Court for the Northern District of Illinois. See Big Onion Tavern Group, LLC, et. al. v. Society Insurance, Inc. In what appears to be one of the first cases to do so, the Big Onion plaintiffs assert extra-contractual claims based on an alleged failure to investigate and seek statutory penalties.

The French Laundry plaintiffs make allegations similar to the Cajun Conti plaintiffs. However, the French Laundry plaintiffs further allege that their “Property Choice Deluxe Form specifically extends coverage to direct physical loss or damage caused by virus.” The French Laundry plaintiffs further rely on an order of the health officer of Napa County which they assert “specifically states that it is being issued based on evidence of physical damage to property.” The Order states, in part, that it is “issued based on evidence of increasing occurrence of COVID-19 throughout the Bay Area, increasing likelihood of occurrence of COVID-19 within the County, and the physical damage to property caused by the virus.”

The French Laundry complaint goes on to allege that “property that is damaged is in the immediate area of the Insured Properties.” This allegation is apparently aimed at triggering Civil Authority Coverage, which can provide coverage following civil action or order by a civil authority where there is direct physical loss or damage to other or adjacent property. The common allegation in the initial COVID-19 coverage lawsuits that the presence of a virus on any property—whether the covered property or adjacent property—will continue to be a hotly contested issue in the absence of any actual evidence that COVID-19 is present inside the insured premises or nearby properties, let alone causes direct physical loss or damage. Further, the primary bases for the orders that are being issued by various state and local governments and agencies are to prevent the spread of COVID-19 due to public health concerns and to promote social distancing.

The Big Onion plaintiffs allege that they obtained business interruption coverage “to protect their businesses from situations like these, which threaten their livelihoods based on factors wholly outside of their control.” The Big Onion complaint cites to the lack of a virus exclusion in the subject policies. According to the Big Onion plaintiffs, such exclusions typically provide that the insurer will “not pay for loss, cost, or expense caused by, resulting from, or relating to any virus. . . that causes disease, illness, or physical distress or that is capable of causing disease, illness, or physical distress.” Some exclusions go on to provide that the policy does not apply to any expense incurred as a result of contamination or “denial of access to property because of any virus. . . .” The plaintiffs in Big Onion appear to focus more on the lack of an exclusion for viruses for the proposition that the presence of a virus should be viewed to involve physical harm, rather than on specific allegations that COVID-19 is present within any covered premises or other or adjacent property. They contend that if viruses could never cause “physical harm,” there would be no need for a virus exclusion, which is a debatable proposition at best.

Of note, the Big Onion complaint cites to and attaches a memorandum purportedly issued “before many of the Plaintiffs had submitted their claims” by “the CEO of Society Insurance . . . prospectively concluding that Society Insurance’s policies would likely not provide coverage for losses due to a ‘governmental imposed shutdown due to COVID-19 (coronavirus).’”1 The complaint asserts a claim for “Statutory Penalty for Bad Faith Denial of Insurance Under 215 ILCS 5/155” based on an alleged failure by Society Insurance to conduct an investigation as well as the referenced memorandum. The Big Onion plaintiffs allege that “[t]o make matters worse, based on information and belief, Society Insurance directed its insurance agents, who are not Plaintiffs’ agents, to make sham claim notifications before Society Insurance’s policyholders even noticed their claims. Society Insurance took these actions, before claims were even submitted, as part of its plan to discourage claim notifications and to avoid any responsibility for its policyholders’ staggering losses. . . .”

It remains to be seen whether the insurer defendants in these cases will seek to dismiss these complaints based on the lack of a triggering event. Indeed, without any evidence that COVID-19 contaminated covered property or adjacent property, the mere order to close a business to prevent the spread of the virus should be insufficient to trigger coverage. This is in addition to the fact that case law across the country supports the conclusion that the presence of a virus, which can be removed with ordinary cleaning products, does not constitute physical harm. Nonetheless, insurers should take heed of the inclusion in the Big Onion complaint of the memorandum, possibly prepared in anticipation of a request for such a statement from state regulators, before preparing such statements for public distribution.

Visit our COVID-19 Hub for ongoing updates.


1 The risk of—and due process implications of—states such as New Jersey attempting to require insures to issue such advance statements is demonstrated by the Big Onion complaint. The Maryland Insurance Administration took a different approach and on March 18, 2020 issued an Advisory on Business Interruption Insurance that states, in part:

“Business Interruption coverage is typically triggered under a commercial insurance policy when a covered risk / peril causes physical damage to the insured premises resulting in the need to shut down business operations. . . . Some commercial policies provide Business Interruption coverage when a business is shut down due to an Order by a civil authority. However, the policy still typically requires a physical loss from a covered peril as the underlying cause of the business shut down to apply.”

COVID-19 Is Not Direct Physical Loss Or Damage

Is a cash register that is not being used damaged property? When you need to wash a table, a chair, or a section of flooring with readily available cleaning products to make them safe and useable, are you repairing damaged property? Is a spilled cup of coffee waiting to be wiped up actual damage to the premises? If your customers stay home to help stop the spread of a virus, has there been a physical loss inside your shuttered store or restaurant?

The insuring agreements typically found in commercial property insurance policies require “direct physical loss of or damage to” covered property as the triggering event. Without establishing direct physical loss or damage a policyholder cannot meet its burden to trigger coverage for a purely economic loss of business income resulting from shuttering its business due to concerns over exposure to—or even the actual presence of—COVID-19. Despite this well-understood policy language, it is already beyond question that insurers will confront creative—albeit strained—arguments from policyholder firms attempting to trigger coverage for pure economic loss. The scope of the human and economic tragedy we all face will be matched by the scope of the effort to force the financial harm onto insurance companies.

The plaintiffs in what appears to be the first-filed case seeking a declaratory judgment in the context of first-party insurance coverage rely on the assertion that “contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces” of its establishment, a New Orleans restaurant, to trigger coverage for business interruption.[1] See Cajun Conti, LLC, et. al. v. Certain Underwriters at Lloyd’s, London, et. al. Civil District Court for the Parish of Orleans, State of Louisiana. The complaint alleges that the property is insured under an “all risk policy” defining “covered causes of loss” as “direct physical loss.” The plaintiffs rely on the alleged presence of the virus on “the surface of objects” in certain conditions and the need to clean those surfaces. They go so far as to claim that “[a]ny effort by [the insurer] to deny the reality that the virus causes physical damage and loss would constitute a false and potentially fraudulent misrepresentation. . . .”

The complaint cites a case from the Court of Appeal of Louisiana, Widder v. Louisiana Citizens Property Insurance Corporation, 82 So. 3d 294 (La. App. 2011), writ denied, 76 So. 3d 1179 (La. 2011), for the proposition that “[s]imilar to the Coronavirus, Louisiana Courts have interpreted that the intrusion of lead or gaseous fumes constitute a direct physical loss under insurance policies that would need to be remediated.”

The assertion of fraudulent misrepresentation seems to be largely a matter of projection, as the truth seems to have been stretched by the claims that the possible presence of an easily cleaned virus damaged the restaurant sufficiently to trigger coverage for business interruption at the plaintiffs’ restaurant. As an initial matter, Widder involved a house contaminated with “inorganic lead which makes it uninhabitable until it has been gutted and remediated.” 82 So. 3d 294, 296. Gutting and remediating a home to remove materials which must be treated as hazardous waste is a far cry from cleaning property with disinfectant. In Widder an inspection revealed the presence of lead dust on walls, which originated in part from lead paint outside of the house. Id. at 295. Apparently without any scientific foundation, the Widder court compared the loss before it to the emission of gaseous fumes from Chinese drywall and reversed the trial court’s summary judgment in favor of the insurer.

Glaringly, the alleged presence of a virus on objects is not analogous to noxious odors or gaseous releases. In Widder the alleged physical harm involved tangible damage. Further, gaseous emissions from Chinese drywall corroded building components and in some instances required demolition and rebuilding of entire physical structures to remediate the condition. The proposition that the alleged presence of Coronavirus is somehow analogous to this type of harm is, at best, a contrived argument to attempt to trigger coverage. Indeed, whether and to what extent Coronavirus stays present on physical surfaces is as yet untested under Daubert. We do know that government health officials believe that proper cleaning with standard disinfectants will kill the virus. In any event, there is no indication or evidence that the virus corrodes physical surfaces.

Courts in other jurisdictions have addressed more analogous circumstances and found a lack of coverage. For instance, a federal district court applying Michigan law found that the presence of mold and bacteria in ductwork and a resulting odor did not constitute direct physical harm despite that the ductwork needed to be physically cleaned as part of remediation. Universal Image Productions, Inc. v. Chubb Corp., 703 F. Supp. 2d 705 (E.D. Mich. 2010). A water leak caused the mold, bacteria, and odor, and the policyholder argued that the “pervasive odor, mold and bacterial contamination (both visual and aerosolized), as well as water damage” constituted direct physical loss. The court concluded that the policyholder did not demonstrate “that it suffered any structural or any other tangible damage to the insured property. Rather, the bulk of [the policyholder’s] argument relies upon proof that it suffered such intangible harms as strong odors and the presence of mold and/or bacteria in the air and ventilation system within its Building which, in its judgment, rendered the insured premises useless.” Id. at 719. Citing a case from Oregon, the court stated that “even physical damage that occurs at the molecular or microscopic level must be ‘distinct and demonstrable.’” Id. (citing Columbiaknit, Inc. v. Affiliated FM Ins. Co., No. Civil No. 98-434-HU 1999, U.S. Dist. LEXIS 11873 (D. Or. Aug. 4, 1999)).

At least two courts—a federal court in Florida and an appellate court in Ohio—have recognized that if the alleged physical harm can be cleaned, then there is no physical harm. Mama Jo’s, Inc. v. Sparta Ins. Co., No. 17-CV-23362-KMM, 2018 U.S. Dist. LEXIS 201852 (S.D. Fla. June 11, 2018) (debris and dust from road work required the insured to clean its floors, walls, tables, chairs, and countertops and the court held that “cleaning is not considered direct physical loss.”); Mastellone v. Lightning Rod Mut. Ins. Co., 884 N.E.2d 1130 (Ohio 2008) (affirming lower court’s ruling that dark staining from mold did not constitute “physical loss” where plaintiff’s expert testified that mold could be removed from wood surface by cleaning).

Further, the mere risk of contamination has been deemed insufficient to trigger coverage. Specifically, loss of income due to an embargo by the United States Department of Agriculture because of the risk that “mad cow disease” contaminated beef product was not “direct physical loss” to beef product. Source Food Tech., Inc. v. United States Fid. & Guar. Co., 465 F.3d 834 (8th Cir. 2006) (applying Minnesota law). The Eighth Circuit distinguished between the actual presence of contamination and the inability to sell a product because of the fear of contamination. “Although Source Food’s beef product in the truck could not be transported to the United States due to the closing of the border to Canadian beef products, the beef product on the truck was not—as Source Foods concedes—physically contaminated or damaged in any manner. To characterize Source Food’s inability to transport its truckload of beef product across the border and sell the beef product in the United States as direct physical loss to property would render the word ‘physical’ meaningless.” Id. at 838.

As of this writing the insurers had not yet moved to dismiss the Cajun Conti complaint. However, we believe that on the face of the complaint, which expressly incorporates the policy language requiring direct physical loss or damage, there is no triggering event. Even assuming that COVID-19 is, at a molecular level, present on physical surfaces, we also believe that disinfecting of surfaces does not constitute physical harm sufficient to trigger coverage.

Gordon & Rees is carefully tracking the coronavirus (COVID-19) pandemic and working to assist clients with the evolving legal ramifications of the outbreak to their businesses.

Visit our COVID-19 Hub for ongoing updates.

Emerging Coverage Considerations for Insurers Relating to Claims in Connection with COVID-19

The only thing equally inevitable to the spread of the novel coronavirus 2019 disease (“COVID-19”) will be the resulting onslaught of first-party and third-party insurance claims and insurance coverage litigation seeking to mitigate business losses through recoveries from the insurance industry. Prominent policyholder firms are already pitching corporate America to seek coverage first and ask questions later. The immediacy of claims and litigation will be expedited and their impact multiplied because of the economic downturn. Policy language and actual coverage will be subject to sustained attacks and creative arguments reflecting the huge sums of money that will be at stake. The impact and aftermath of the COVID-19 pandemic stands to present coverage questions for insurers under a variety of coverage forms, including Commercial Property, Commercial General Liability, Professional Liability and Healthcare Liability, and Directors and Officers Liability coverage forms. We summarize below the issues that have already arisen, as well as those that we expect to arise as policyholders submit claims under their insurance assets in connection with COVID-19.

First Business Income Claim Filed

Louisiana appears to be the first state in which an insured filed a lawsuit seeking first-party insurance coverage for business income loss related toCOVID-19. Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s London, et al., Civil District Court for the Parish of Orleans, Louisiana. In response to the New Orleans mayor’s restrictions on restaurant operation in relation to the public health emergency, the restaurant owner sought coverage under its “all risks” policy, which provides coverage for “direct physical loss unless the loss is specifically excluded or limited.” In its complaint the policyholder asks the court to declare that s “because the policy provided by Lloyd’s does not contain an exclusion for a viral pandemic, the policy provides coverage to [the business] for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination and that the policy provides business income coverage in the event that the contamination has contaminated the insured premises.” Notably, however, the declaratory judgment specifically “do[es] not seek any determination of whether the Coronavirus is physically present in the insured premises, amount of damages, or any other remedy besides the declaratory relief.” Gordon Rees Scully Mansukhani will continue to monitor this developing litigation and advise of developments that may impact insurers.

ISO Commercial Property Forms Typically Exclude Coverage for Communicable Diseases

Essential to the resolution of the Cajun Conti case and future claims like it will be the scope of coverage afforded under ISO Commercial Property forms. In 2006, after learning from prior major viral outbreaks, ISO adopted a mandatory exclusion for business interruption policies that specifically excludes coverage for lost business income arising from viruses. ISO form CP 01 40 07 06, “Exclusion for Loss Due To Virus Or Bacteria,” specifically applies to business income, and provides in relevant part that the underwriter “will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.”

Absent this exclusion, however, triggering business interruption coverage under the ISO form fundamentally requires “direct physical loss of or damage to property at premises which are described in the Declarations.” Needless to say the proper interpretation of the terms “direct physical loss of or damage to property at premises” is expected to be one of the foremost topics of disagreement between policyholders and their insurers as these claims begin to mount. From a policyholder advocate perspective, the presence of COVID-19 in the building may be sufficient. In this regard, recent articles published by policyholder firms point to cases in which courts have held that the presence of gaseous or other non-visible substances constituted a “direct physical loss” to premises where the substance rendered the premises uninhabitable, even absent physical alteration to the structure itself. These arguments unreasonably expand the plain meaning of the language used in property policies. Indeed, many courts confronted with coverage disagreements involving similar conditions—such as the presence of asbestos, mold, or other debris in a building–concluded that the requisite “direct physical loss of or damage to” covered property was lacking

In Some Instances Manuscript Policies May Present A Closer Question

The focus of coverage disputes under manuscript policies are far less easy to predict, as they contain terms negotiated by the insured or its broker. One such area of attention may be the applicability of Civil Authority Coverage, which in some cases may extend business interruption coverage to orders or actions of a governmental agency or other civil authority. With everything from auto production factories to nail salons closing pursuant to state government emergency orders this will likely be hot button issue in the courts. As is the case with all coverage questions, the scope of coverage will be determined by the particular facts and circumstances of the loss and the plain meaning of the terms of the policy.

State Efforts to Extend Coverage

Insurers are cautioned to pay particular attention to state efforts to mandate the payment of business income losses related to COVID-19 under the property provisions of the Commercial Package and Business owner policies. The first state to offer legislation of this type is New Jersey, which has proposed a law titled as an act “concerning certain covered perils under business interruption insurance.” The draft bill in the state is aimed to force insurers to cover business income loss relating to COVID-19 and the governmental efforts to prevent its spread—including for policies that explicitly exclude viral coverage (such as policies bearing the ISO exclusion)—regardless of the policy terms and provisions.

Despite the legislature’s effort to hold harmless a segment of the business sector with the foresight to purchase business interruption coverage, this proposed legislation seemingly shifts the burden of compensating businesses for virus-related losses from the state or federal government onto private insurers, including those who have specifically contracted out of this coverage. It also raises a significant question of due process and the freedom of insurers to contract to limit the coverage provided under their policies.

The State of New York has also entered the fray, but not to coerce insurers to pay uninsured losses. On March 10, 2020, the New York Department of Financial Services (NYDFS) issued a letter directing insurers who write business interruption coverage to “explain” to policyholders the benefits under their policies and the protections provided in connection with COVID-19. While the directive is targeted to preemptively address insured questions concerning the scope of business interruption coverage, it fosters an erroneous “one size fits all” approach to construing policy coverage and it arguably requires insurers to issue advisory opinions concerning the interpretation of “covered perils” and “physical loss or damage” in their policies without first knowing the particular facts and circumstances of any given loss or claim. Notably, in October 2019, NYDFS implemented Section 308 of the Insurance Law requiring insurers to complete a questionnaire in order to ascertain the level of pandemic influenza preparedness, purportedly in the hope that this information would help raise the general level of preparedness of our licensees.

Most recently the Maryland Insurance Administration released and Advisory or Business Interruption on Business Interruption Insurance on March 18, 2020, which states that it has been received a high volume of inquiries related to business interruption insurance. The Advisory states in pertinent part:

Business Interruption coverage is typically triggered under a commercial insurance policy when a covered risk / peril causes physical damage to the insured premises resulting in the need to shut down business operations. For example, if a fire damages a business and the business cannot operate during repairs, business interruption coverage would be available subject to the terms and limits in the policy.

. . .

Some commercial policies provide Business Interruption coverage when a business is shut down due to an Order by a civil authority. However, the policy still typically requires a physical loss from a covered peril as the underlying cause of the business shut down to apply.

. . .

All insurance policies have exclusions of coverage for risks that are too great to be underwritten at an affordable price. For example, commercial and personal property insurance policies typically contain specific exclusions for loss or damage caused by war, nuclear action and radiation. The potential loss costs from such perils are so extreme that providing coverage would jeopardize the financial solvency of property insurers. Global pandemics like COVID-19 usually fall into this category. However, policies can be different. We recommend that businesses review their policies and reach out to their insurance professionals with any questions.

This approach is less aggressive than those taken by New Jersey and New York, and at least at this time Maryland has not required insurers to take on obligations for which they did not contract or otherwise issue advisory opinions. We will provided updates as other states and insurance departments begin to take positions on insurance coverage related to COVID-19.

Commercial General Liability

Commercial General Liability (“CGL”) policies will surely also be noticed by insureds and lead to extensive coverage litigation given the myriad of possible factual situations that will arise. Since CGL provides coverage for liability to third parties arising from “bodily injury” or “property damage” resulting from unintentional acts, there are many potential avenues for negligence claims around issues of exposure to COVID-19.

In CGL policies, the definition of “bodily injury” generally includes “sickness” or “disease.” The most likely avenue for claims will most likely be parties alleging liability for the spread of the coronavirus. Considering the ubiquitous effects of the virus on businesses worldwide, claims could come in many forms: restaurants, bars, or gyms that did not close, or theaters or concert venues that did not postpone events, are just a few examples. The early outbreak at the nursing home in Washington will raise many questions about the standard of care that should have been in place in any facility handling vulnerable populations. Airlines, hotels, conference centers, travel agents, or cruise ship companies could also be targets for moving forward with events or bookings in the face of worldwide news cycle warning of dangers. All of these entities could face liability for failing to take appropriate action to prevent infection from employees that appeared sick, or high-touch surfaces that were not appropriately de-contaminated. Similar claims could allege a lack of preparedness or training of employees that led to the spread of infection.

Other claims not directly related to the spread of disease, but rather as a result of the actions taken to prevent the spread, may arise. For example, if a real estate owner closes a building, there may be claims for wrongful eviction. This would fit within the standard definition of “personal and advertising injury.”

While it is true that CGL policies often include pollution exclusions, the effect of such exclusions will depend largely on the precise language of the exclusion and law of the state where it is being applied. Some CGL policies also contain exclusions for viruses or communicable diseases. The most difficult obstacle for claims will be sickened individuals attempting to pinpoint where they were sickened, and by whom. However, even the smallest claims that stick past the motion to dismiss stage may lead to a copycat effect. There are many jurisdictions where the insurance industry struggles to get fair treatment in the courts, which will present even greater peril if COVID-19 impacts a measurable percentage of the local population with serious permanent impairment or death.

Directors & Officers Liability

It is also worth considering the potential for claims against Directors & Officers, Errors & Omissions, Management Liability, or any form of Professional Liability Insurance policies, including Healthcare Professional Liability policies. Claims could be made against managers, directors, officers, or professionals for a failure to make decisions that would have prevented the spread of disease. Potentially more costly could be claims by investors, who have seen the value of their holdings dwindle, seeking to assert claims against officers alleging that a lack of response (or inadequate response) led to a reduction in share price. Policyholders will argue that pollution exclusions have limited effect against such claims.

Visit our COVID-19 Hub for ongoing updates.