To date, approximately 150 business-interruption insurance coverage lawsuits have been filed in federal courts arising from COVID-19 and related government-ordered restrictions. In what appears to be the first substantive ruling on the merits in these cases, the Southern District of New York recently ruled against an insured who could not meet its burden to show a likelihood of success in establishing “property damage” due to the novel coronavirus to support its claim for injunctive relief. Judge Caproni expressed sympathy “for every small business that is having difficulties during this period of time,” but concluded that “New York law is clear” in requiring actual property damage to trigger business interruption coverage. Because the insured’s coverage theory rested on a government shutdown in the absence of any property damage, the Court denied its preliminary injunction motion, reasoning “this is just not what’s covered under these insurance policies.”
Legislators continue their efforts to address the enormous cost of business continuity losses. Most recently, Representative Mike Thompson of California, introduced H.R.6494, labeled the “Business Interruption Insurance Coverage Act of 2020”.
Enacted on March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) is the largest economic stimulus package in American history, providing $2 trillion in essential financial, medical and economic assistance to industries, businesses and individuals affected by this global health and financial crisis. Since the early stages, the Duane Morris COVID-19 Strategy Team has been closely monitoring developments and advising clients on the complex legal issues and far-reaching implications of the pandemic. Our attorneys have reviewed the key provisions of the CARES Act and have summarized the significant benefits, resources and opportunities that may be available to you.
To read the full text of this Duane Morris Alert, please visit the firm website.
Based on growing concerns over the spread of COVID-19, large public gatherings, such as conferences and other events, are being cancelled at an increasing rate throughout the United States, and internationally. More than 50,000 people signed an online petition requesting the cancellation of the multi-day South by Southwest event in Austin, Texas. That and other conferences and large events are being cancelled daily. With at least 3,300 world-wide deaths, and approximately 200 confirmed cases in the U.S., large public events will continue to be cancelled for the near future.
Impacting the decision to cancel conferences and other large public events, large corporations are issuing policies (changing almost daily) such as: no nonessential travel; employees can attend conferences only if the conference has a travel ban from certain countries (i.e., you, employee, can attend the conference, but only if the conference bans attendance of people from certain COVID-19 troubled countries); and no attending public events larger than 10 people (last week the policy was 1,000 people or more). Most recently, companies have issued bans on guests being allowed onto their premises, and/or issued a mandatory work from home policy.
What are the legal ramifications of each of these edicts? Or of cancellations of conferences and other large public events? What happens to the contracts for each of these events, such as contracts with the attendees, the site, the vendors, the airlines, consultants, speakers, performers etc. What are the legal ramifications and what will be the financial impact from these cancellations? Will you be able to make an insurance claim to protect you?
Insurance companies are starting to see numerous notifications under Event Cancellation insurance. But will the cancellation be covered by your policy? Are you trying to submit a claim for cancelling an event due to the attendees’ fear, or event organizer’s fear of spreading or catching COVID-19 even though there is no ban on the event going forward? That may not be a covered claim. While you may decide to cancel the event, just know that the cancellation may not be covered because the cancellation was not beyond the control of the event organizer. Additionally, the typical cancellation insurance policy likely contains exclusions that come into play (e.g., the Communicable Disease exclusion – excluding coverage where fear causes a cancellation due to the World Health Organization’s world epidemic determination). Don’t assume your Event Cancellation Insurance will cover your expenses related to canceling.
Other insurance companies are seeing notifications of claims for Business Interruption coverage. Presenting a covered claim under a Business Interruption Insurance policy may be difficult. The first question will be: Does the cause of loss qualify under the policy for coverage? Recently, the UK made COVID-19 a registered notifiable disease to allow insurance claims to be filed. What will happen in the U.S.? And, what is the “loss”? Are there applicable exclusions precluding coverage? Unless you have a specific and unusual insurance policy, recovering under an insurance policy for expenses due to COVID-19 may be very difficult.
These are just some of the legal issued to be sorted out in the coming months. But without recourse to insurance coverage, the contract disputes become even more key.
For more on Force Majeure Contract Clauses and COVID-19, see the March 4, 2020 Duane Morris Alert.