In the last few weeks, since our last blog on this topic, another 50 cases have been filed seeking recovery of business-interruption losses from COVID-19. These include a case brought on behalf of adult entertainment clubs shut down by the virus-related closure orders (Rialto Pockets, et al v. Lloyd’s of London, Civ. No. 2:2020cv07709 (C.D. Cal. Aug. 24, 2020)), and a case claiming that covered governmental negligence in stopping COVID-19 caused the closure orders (Consolidated Restaurant Operations v. Westport Ins., Civ. No. 2020cv58095 (NY Sup. Ct. Aug 5, 2020)).
Since the beginning of the COVID-19 pandemic, hundreds of businesses of all sizes have been forced to file lawsuits against their property insurers for failing to honor their contractual obligations to provide business interruption, extra expense, civil authority, and other coverage for the substantial losses caused by the COVID-19 pandemic. Unfortunately, this onslaught of litigation has produced little progress thus far, leaving hundreds of business-owner plaintiffs and thousands more interested outside observers waiting for the funds they are rightfully owed.
This update discusses the lessons that businesses can learn from these early decisions and proposes guidance on how to generate meaningful progress towards timely resolution of such COVID-19 coverage disputes.
Due to the COVID-19 pandemic, institutions of higher education are facing significant revenue challenges and incurring extra expenses for which their insurance programs should provide relief. Potentially covered sources of loss and damage include (1) efforts to make buildings safe for students, faculty, staff, and administrators, (2) tuition adjustments, loss of athletic and extra-curricular events revenue and related sponsorships, and (3) extra expenses and/or lost revenue related to student housing issues.
In 1964, futurist Arthur C. Clarke predicted that in 50 years, people “will no longer commute—they will communicate.” For a significant portion of the American workforce, the future is now. COVID-19 has fundamentally changed how we communicate: The virtual meeting is suddenly our primary means of interaction with coworkers. Video conferencing platforms like Zoom, Microsoft Teams, and Cisco’s WebEx have seen unprecedented spikes in active users. As companies transition from triage to planning for the new normal, the prevalence of video conferencing has serious implications for commercial litigation. Face-to-face discussions that were only memorialized by meeting notes or related correspondence can be fully preserved as video files, subject to discovery. It is therefore essential to understand the technical functionality of virtual meeting recordings and the likely legal obligations that accompany them.
The insurance industry in the United States continues to thwart legislative solutions for disputed COVID-19-related losses under property/business interruption policies and resists efforts to group lawsuits together into multi-district federal litigation or class actions. Meanwhile, the independent regulator of insurers in the United Kingdom, the Financial Conduct Authority (FCA), is trying to take a more organized and direct approach. Although the FCA indicated that it did not believe coverage existed for most claims for COVID-19-related losses, the FCA has identified the key language at issue in the various insurance policies, the universal or prevalent facts presented, and the legal questions posed. The regulator has announced an initiative to begin resolving these disputed claims by bringing a series of test cases in U.K. courts to answer these coverage questions. Though the test cases are being resolved under the law of the United Kingdom, the outcomes are likely to influence American courts that are grappling with many of the same issues under similar insurance policy language. Depending on the success of the test cases in streamlining these disputes in the U.K., U.S. policyholders may want to consider adopting a similar approach to fast-track their claims towards settlement.
In the latest episode of the podcast series Insurance Considerations Amid COVID-19, we are joined by Deborah White, president of the Retail Litigation Center (RLC) and senior executive vice president and general counsel of the Retail Industry Leaders Association (RILA). Deborah provides insight and analysis regarding the retail industry’s varied and innovative response to the pandemic, including how large retailers deal with the patchwork of evolving state and local regulations and how they are innovating at breakneck speed to meet consumer demand while maintaining safety for employees, suppliers, and customers. Not surprisingly, we also talk about masks, how we all got our start in retail, and a little … insurance.
General liability coverage is insurance that responds to sums that the policyholder is legally obligated to pay as damages because of bodily injury or property damage to third parties (and generally will also include either a duty to defend such claims or to reimburse defense costs). Thus, general liability coverage would respond to such tort claims as slip-and-fall lawsuits and product liability exposures. In addition, most such policies also cover certain enumerated personal or advertising injury offenses (such as defamation or disparagement).
Most general liability policies are written on an “occurrence” basis. An occurrence-based general liability policy is triggered to respond by bodily injury or property damage taking place during its policy period, regardless of when the claim is made against a policyholder. Given multi-year statutes of limitations for many torts and the possibility of latent injuries, this means that it is frequently a prior year’s occurrence policy (or policies, for long-term injury claims) that responds to a claim that comes in during the current year.
As the COVID-19 pandemic spreads across the globe, countries have by and large placed limitations on how certain businesses can operate and have required other businesses to temporarily cease operations altogether. Businesses impacted by these restrictions have suffered substantial financial losses and, unsurprisingly, are looking to their business interruption insurers to cover these losses. As businesses begin to make business interruption claims, a stark contrast is arising between how U.S. and European insurers and governments are handling the influx of such claims related to COVID-19.
What is Business Interruption Coverage?
Business Interruption Coverage is a type of insurance coverage that compensates you for lost revenue when your business is unable to operate for a period as result of some physical property loss or damage caused by a covered peril. The most common example is a fire that damages a business property. If that damage prevents a business from operating as usual, business interruption coverage could provide the revenue your company would have made during the time it was unable to operate because the building was being restored. While a fire could certainly damage a tech company’s property, a tech company might be more vulnerable than other companies to certain types of damage, such as a weather-related event that knocks out the temperature controls in a data center, thereby resulting in the loss of, or damage to, electronic data. While nearly all companies in this day and age store data electronically, a data center can be more of the heart and soul of tech company than other types of companies. Continue Reading Fundamentals of Business Interruption Coverage—What Tech Startups Might Need to Know
Cryptocurrency is a digital or virtual asset that relies on cryptography to verify and secure transactions. Most cryptocurrencies have no central regulatory authority (i.e., the federal government), but rather run on decentralized systems through the use of blockchain technology to record transactions and assign new “tokens.” While blockchains provide a high sense of security and self-regulation, they are not risk-free. The insurance market has been slow to enter the cryptocurrency world, but some insurers have, and others are starting to explore this new terrain. In this blog, we provide a short overview of what you should know about cryptocurrency insurance in order to decide whether it’s right for you and/or your company.