First Circuit holds that deemed-made clause in claims-made policy requires only notice of the possibility that a claim will be brought against the policyholder

On September 23, 2013, the SEC began investigation of an investment advisory firm called F-Squared.  An investigation order (the "Formal Order") indicated that the SEC had information that tended to show that from at least January 1, 2009, F-Squared had distributed false and misleading advertisements to clients or prospective clients in violation of law. 

On October 2, 2013, the SEC served a subpoena on F-Squared in connection with the investigation. On October 18, 2013, upon request from F-Squared, the SEC provided it with a copy of the Formal Order.

F-Squared had been issued a primary insurance policy by Columbia Casualty Company for two consecutive policy years.  For the first year, October 3, 2012 to October 3, 2013, F-Squared had an excess policy from Federal Insurance Company,  The total limit between the two insurers for that  policy year was $10 million.

For the second policy year, October 3, 2013 to October 3, 2014 F-Squared had additional excess coverage from Zurich and XL, for a total of $20 million in coverage.

The policies were claims made policies that provided coverage for "any claim first made against F-Squared during the policy period."  The policies had a "deemed-made" clause under which a claim is deemed "first made" upon "an insured being identified by name in an order of investigation [or] subpoena . . .  as someone against whom a civil. criminal, administrative or regular proceeding may be brought."

F-Squared notified the insurers of the investigation and requested coverage under the policies. Columbia and Federal paid their combined $10 million policy limit for the 2012-2013 policy year.

The other excess insurers denied coverage on the basis that the SEC investigation constituted a claim that was first made prior to the 2013-2014 policy year.

F-Squared filed for bankruptcy.  Craig Jalbert, in his capacity as trustee of the F2 Liquidating Trust, sued the excess insurers.   He argued that the deemed-made clause was inapplicable because the Formal Order did not state that the SEC would bring a proceeding against F-Squared.  He argued that the phrase "may be brought" in the deemed-made clause required a "reasonable possibility," not a  "weak possibility" of a claim.  He asserted that the Formal Order did not indicate whether and to what extent SEC proceedings against F-Squared were a reasonable possibility.

In Jalbert v. Zurich Services Corp. 953 F.3d 143 (1st Cir. 2020), the United States Court of Appeals for the First Circuit disagreed.  It held that the deemed-made clause precluded coverage because the word "may" in the clause required only notice of a possiblity that a proceeding will be brought, and the Formal Order expressed such a possibility.

Insurance coverage for loss of income from business interruptions due to coronavirus

Last time I posted about coronavirus liability insurance issues, a little more than a month and a lifetime ago, I had no idea that I would be writing this post from my home office, taking my temperature every few hours because I need to go three days with  no fever before I can stop self-quarantining away from my kids.  I am grateful for how lucky I have been: that my kids are old enough that they've been able to handle little supervision beyond my pestering them by text; that I did not get sicker; that friends and acquaintances and even strangers have helped my family out in all kinds of ways, from deliveries of toilet paper to making masks for us; and that I have a law practice will survive my not working for a couple of weeks.

Many businesses are worried that they will not survive.  One of the questions for them is whether they can recoup their coronavirus losses from their general liability insurance.  These are the major issues that arise from that question: 

·       Does the business interruption insurance provide coverage for loss of income from coronavirus?  

As with every insurance question, the first place to look is the language of the policy. 

Most policies provide business interruption coverage in the case of "direct physical loss or damage" to the insured property (such as a fire loss).  

There will no doubt be litigation over whether the coronavirus itself is damage to the property, at least where there were known cases of coronavirus at the business which caused it to shut or lose revenue.  

Many policies have an exclusion for losses due to viruses or bacteria.  The courts will have to address whether a “pandemic” comes within that exclusion  

Many policies also provide business interruption coverage if the losses are caused by “civil authority,” where access to the business is prohibited by an act of government.  (For example, after the Boston Marathon bombings, the government shut down businesses near the bomb site.)  Such losses do not require direct physical loss or damage to the business property, but are generally limited in scope to a few weeks.  

·       Is there any chance that insurance will provide coverage even if coverage seems to be excluded by the language of the policy?

The Massachusetts legislature is considering a bill under which insurers would pay business interruption losses from coronavirus up to the policy limit for small businesses.  The insurers would then by reimbursed by the state.  There’s a good summary of the bill here.  

·       What do I do if my insurer denies my business interruption claim?

Don’t give up without consulting with an attorney.  Insurers may reflexively deny claims.  You may have a policy that provides coverage, or a court decision may come down in the future interpreting your policy as providing coverage.  You want to make sure you don’t lose any rights. 

·       What do I do in my insurer says that there is coverage for my business interruption claim?

You should consider hiring a public adjuster to help you make sure you are submitting the full value of your claim.  Public adjusters are non-attorneys who advocate for policyholders on the amount of loss, almost always on a contingency fee.  

·       Upcoming Boston Bar Association webinar

The Insurance and Reinsurance Committee of the Boston Bar Association will be holding a webinar on these issues on Friday April 17, 2020 from noon to 1 PM.  (I am one of the chairs of this committee but the credit for putting the program together goes to my co-chair Sara Perkins Jones as well as to Nathan Cole.)  You do not need to be a member of the BBA to participate in this webinar.