Lawsuits filed over denial of claims for business interruption losses as a result of coronavirus pandemic

I am aware of two Massachusetts cases to date against insurers alleging wrongful denials of claims for business interruption losses as a result of the coronavirus pandemic.  Both have been filed in the United States District Court for the District of Massachusetts.

In the amended complaint in the first lawsuit, Legal Sea Foods, LLC v. Strathmore Ins. Co., restaurant chain Legal Sea Foods alleges that its policy issued by Strathmore Insurance Company did not have a virus exclusion -- putting Legal's a step ahead of most policyholders.

Legal's alleges that the coronavirus caused direct physical loss or damage to its insured properties because the virus can be spread through contact with surfaces such as metal and glass used in preparing and serving the restaurant meals.  It also alleges that it is eligible for coverage for losses caused by civil authority.

According to the complaint, Strathmore denied coverage on the grounds that there was no direct physical loss or damage and that the claim was excluded by exclusions for losses caused by ordinance or law or by "acts or decisions, including the failure to act or decide, by any person, group, organization, or governmental body."  Legal's alleged that both exclusions are inapplicable.

The second lawsuit, Rinnigade Art Works v. The Hartford Financial Services, is a class action suit.  The named plaintiff, Rinnigade Art Works, is a graphic design and screen printing business.  Rinnigade alleges that its policy does not contain any applicable exclusions.  The complaint does not specifically discuss whether the policy contains a virus exclusion.

Like in Legal Sea Foods, Rinnigade alleges that it is entitled to coverage for business interruption losses under the policy because the coronavirus caused direct physical loss or damage and that that the state-ordered closings created a loss caused by civil authority.

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.