Insurers’ COVID-19 Notepad: What You Need to Know Now - Week of September 26, 2022

Courts Dismiss COVID-19 Business Interruption Claims

On September 20, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a jeweler’s COVID-19 business interruption lawsuit. The court held that income lost while being closed due to pandemic-related orders was not the result of “direct physical loss.” Order at 4. The court relied on its earlier decision in Q Clothier New Orleans LLC v. Twin City Fire Insurance Co., 29 F.3d 253 (5th Cir. 2022) and said loss of use from the shutdown orders did not tangibly alter the property.  Id. at 4, 6. The court also affirmed the dismissal of the negligent procurement claims against the jeweler’s insurance brokers, finding that they did not have an affirmative duty to advise the company about the availability of pandemic-related insurance coverage. Id. at 8. Instead, the court said, an agent’s duty ends once the insured receives the insurance it requested; it is the policyholder’s responsibility to request the type of insurance it wants. Id. at 11-12. The case is Coleman E. Adler & Sons, L.L.C. v Axis Surplus Insurance Co.

On September 19, 2022, the district court for the Eastern District of Louisiana granted Continental Casualty Company’s motion to dismiss a hospital and healthcare facility operator’s COVID-19 business interruption claim. The court found that “the weight of jurisprudence and the law of the circuit” required it “to interpret ‘direct physical loss of or damage to property’ to cover only ‘tangible alterations of, injuries to, and deprivations of property.’” Order at 9. The case is Fairway Medical Ctr., LLC v. Continental Cas. Co.

New Business Interruption Suits Against Insurers:

A residential real estate company sued Amguard Insurance Company in California state court (Contra Costa County) for declaratory relief, breach of contract, and breach of the duty of good faith and fair dealing. The policy allegedly provides business interruption and civil authority coverage. Complaint at ¶¶ 112-17. The Complaint alleges that the presence of SARS-CoV-2 within the plaintiff’s properties “caused direct physical loss of or damage to properties (or both) by transforming the property from usable and safe into property that is unsatisfactory and prohibited for use, uninhabitable, unfit for their intended function, and extremely dangerous and potentially deadly for humans.” Id. at ¶ 5. The case is Happy Valley Road LLC v. Amguard Ins. Co.