Source: Wall Street Journal
Businesses suing insurers for billions in losses from COVID-19 shutdowns are entering a new phase: jury trials.
Over the past year, judges have ruled in favor of insurers in hundreds of cases, backing up the carriers' rejections of "business interruption" insurance claims. Many of those rulings have involved policies with virus-specific exclusions, which can make the cases more open-and-shut for judges.
But last month, a jury in federal court in Kansas City heard a restaurateur duke it out with a unit of Cincinnati Financial Corp. in a case without the virus-specific exclusion. It was the first coverage dispute, out of more than 1,800 COVID-19 lawsuits filed so far, to reach jurors, according to a COVID-19 litigation-tracking effort at the University of Pennsylvania Carey Law School.
The trial signals that policyholders may be entering a new phase, in which their cases survive early motions to dismiss and get a fuller hearing than they have generally gotten so far.
The plaintiffs in this new wave are expected to feature some large companies and organizations, such as Major League Baseball, a far cry from the local restaurants and other small businesses that so far have dominated action. And these big clients in many instances are represented by law firms with deep experience in insurance-coverage disputes, potentially setting the stage for some dragged-out, high-stakes legal fights.
Large companies often have tailored policies, which don’t always have the boilerplate virus-specific exclusion that is common in policies sold to smaller businesses, said Tom Baker, a Penn law-school professor who runs the litigation-tracking project.
An example of the litigation's new face was on display in a federal-court hearing in Roanoke, Va., last month. There, a lawyer with a policyholder law firm argued against an insurer's motion for dismissal of a suit brought by a large Virginia healthcare system, Carilion Clinic. The lawyer emphasized the need for continued proceedings to delve into the science of how COVID-19 might damage property. Carilion argues it lost income when elective procedures weren't performed. The policy didn't have the boilerplate virus-specific exclusion.
Scott Greenspan, a Pillsbury Senior Counsel and one of Carilion's lawyers, told the judge that the research supports his side's contention that COVID-19 transforms the content of the air, making it hazardous and causing the requisite property damage. He drew on past judicial rulings favorable to policyholders involving ammonia leaks, asbestos fibers, methamphetamine odor and even cat-urine odor. The ruling is pending.
COVID-19 business-interruption lawsuits have shaped up to be one of the biggest fights the insurance industry has ever waged with policyholders.