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Insurers’ COVID-19 Notepad: What You Need to Know Now - Week of (February 7, 2022)

February 7, 2022

Courts Dismiss COVID-19 Business Interruption Claims

On January 26, 2022, the U.S. Court of Appeals for the Fifth Circuit denied a tea and spice shop’s petition for rehearing and confirmed that coverage for business losses are not covered under the shop’s policy. Because the plaintiff failed to allege “any tangible alteration or deprivation of its property,” its losses do not fall under the business interruption or civil authority provisions. Order at 5. The case is Aggie Investments, L.L.C. v. Continental Casualty Co.

On February 3, 2022, the district court for the Southern District of Indiana granted Factory Mutual Insurance Company’s motion to dismiss several manufacturers’ COVID-19 business interruption complaint. The court reasoned that the plaintiffs could not show the presence of the coronavirus or economic damages caused tangible physical harm or loss. Order at 12. “A policy provision premised on 'physical loss' provides coverage when a loss from a physical alteration to the insured property has occurred, rather than for a reduction in the usefulness of the property due to its inability or failure to function in accordance with its intended purpose.” Id. at 13. Physical loss or damage are linked to repair or replacement of property. Id. The case is Stant USA Corp. v. Factory Mutual Insurance Co.

On February 1, 2022, the district court for the District of Oregon granted Ohio Security Insurance Company’s motion to dismiss a restaurant owner and operator’s putative COVID-19 business interruption class action. The court adopted the presiding magistrate judge’s report and recommendation, which held that the plaintiff failed to allege a direct physical loss. Order at 2; Report & Recommendation at 6. The case is Zedan Outdoors, LLC v. Ohio Sec. Ins. Co.

On January 27, 2022, the Supreme Court of New York, Kings County, granted Zurich American Insurance Company’s motion to dismiss an apparel retailer’s COVID-19 business interruption claims. The court held dismissal was appropriate because the complaint “fail[ed] to present any allegation the virus itself caused any physical damage.” Order at 16. The case is Rainbow USA Inc. v. Zurich Am. Ins. Co.

On January 31, 2022, the district court for the Eastern District of Pennsylvania granted Nationwide General Insurance Company’s motion to dismiss a restaurant operator’s COVID-19 business interruption claim. The court concluded that COVID-19 closure orders are not a “direct physical loss” because “Plaintiff’s property remains in the condition it was in before the closure orders; all that changed was that Plaintiff was prohibited from carrying on certain activities.” Order at 6-7. The court further rejected the plaintiff’s contention that the spread of COVID-19 in its premises constituted a loss of or damage to property, because “[a]lthough the virus incidentally contacts the property as it spreads, there is no ‘causal relationship’ pleaded between that incidental contact and the business loss Plaintiff alleges.” Id. at 7. The case is KWB Enterprises, Inc. v. Nationwide Gen. Ins. Co., et al.

New Business Interruption Suits Against Insurers:

A medical diagnostic testing company sued nine insurance companies in Washington state court (King County) for declaratory judgment and breach of contract. The plaintiff’s “all risk” policies allegedly provide business interruption and civil authority coverage. Complaint at ¶¶ 19-20. The complaint alleges the plaintiff’s losses were covered under its policies because COVID-19 causes property “to become physically uninhabitable” and because “civil authority orders prohibited access of patrons to the business premises of [plaintiff’s] customers.” Id. at ¶¶ 59-60. The case is Quest Diagnostics, Inc. v. AIG Specialty Ins. Co.

The operator of movie theater circuits sued Allianz Global Risks US Insurance Company, Liberty Mutual Fire Insurance Company, and Zurich American Insurance Company in California state court (Los Angeles County) for declaratory relief and breach of contract. The “all risk” policies allegedly provide business interruption, extra expense, civil authority, ingress/egress, and communicable disease decontamination costs coverage. Complaint at ¶¶ 68, 72, 73, 74. The Complaint alleges that “the ubiquitous presence of COVID-19 and the coronavirus, including in the air and on property in Regal’s insured theaters, and in infected customers and employees at Regal’s insured theaters, has interrupted [Regal’s] business model by causing physical loss and/or damage to the insured properties and rendering them unusable for their intended purpose.” Id. at ¶ 53. The case is Crown Intermediate Holdco, Inc. v. Allianz Global Risks US Ins. Co., et al.

Global Gypsy, Inc. sued ACE Fire Underwriters Insurance Company in California state court (Los Angeles County) for breach of contract and breach of the covenant of good faith and fair dealing. The policy allegedly provides business income and civil authority coverage. Complaint at ¶ 11. The Complaint alleges that the plaintiff suffered business income loss as a result of California’s COVID-19 closure order, which “was an order by a civil authority and was covered under the policy[.]” Id. at ¶ 33. The insurer allegedly “refused to make a payment and unreasonably delayed payment to the insured causing business losses.” Id. at ¶ 14. The case is Global Gypsy, Inc. v. ACE Fire Underwriters Ins. Co.

Benihana Inc. sued Allied World Assurance Co. (U.S.) Inc., Axis Surplus Insurance Co., James River Insurance Co., and Maxum Indemnity Co. for declaratory judgment and breach of contract. The “all-risk” policy allegedly provides coverage for business interruption, extra expense, time element, and civil or military authority. Complaint at ¶ 36. The restaurant alleged it suffered substantial losses after governmental authorities used orders to restrict its operations in multiple states and countries. Id. ¶ 19. The case is Benihana, Inc. v. Allied World Assurance Co. (U.S.).

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Laura Foggan
Partner – Washington, D.C.
Phone: +1.202.624.2774
Email: lfoggan@crowell.com
Adam J. Singer
Associate – Washington, D.C.
Phone: +1.202.688.3508
Email: asinger@crowell.com
Rachel A. Jankowski
Associate – Washington, D.C.
Phone: +1.202.624.2647
Email: rjankowski@crowell.com
Samuel H. Ruddy
Associate – Washington, D.C.
Phone: +1.202.624.2564
Email: sruddy@crowell.com