Hunton Insurance Recovery Blog

Over the past couple of months, we have written on decisions by various European insurers to pay policyholders for their COVID-19 related losses. That positive trend is now moving across continents.

On August 6, 2020, in Rose’s 1 LLC, et al. v. Erie Insurance Exchange, Civ. Case No. 2020 CA 002424 B, a District of Columbia trial court found in favor of an insurer on cross motions for summary judgment on the issue of whether COVID-19 closure orders constitute a “direct physical loss” under a commercial property policy.

On June 29, in a development that may fundamentally change the landscape for California businesses which have sustained COVID-19 related business interruption loss, two California legislators amended pending legislation to address several of the most hotly contested issues regarding insurance recovery for these devastating losses.

Last month we wrote a piece concerning AXA’s agreement to pay COVID-19 related business interruption claims by a group of restaurants in France after a court ruled that the restaurants’ revenue losses resulting from COVID-19 and related government orders were covered under its insurance policies. AXA reportedly has already agreed to pay over 200 COVID-19 related claims.

A group of Las Vegas-based restaurants recently filed a class action lawsuit to recover business interruption damages against their insurer. The Egg Works chain alleged that U.S. Specialty wrongly denied their claims for financial losses stemming from the Nevada governor’s closure of non-essential businesses during the COVID-19 pandemic. The governor’s orders limited the restaurants to takeout and delivery service only.

Following the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, Tony McDade, and Rayshard Brooks, protests against systematic racism in general, and police brutality in particular, have swept the globe. These protests have largely been peaceful, but a small, fractious group of individuals has used the protests as cover to incite violence, damage property, and loot businesses. While it might be cold comfort to the affected business owners to hear that property damage is not the norm, most have insurance that protects their pecuniary interest.[1]

AXA, one of the biggest insurance companies in the world, has agreed to pay COVID-related business interruption claims by a group of restaurants in Paris after a court ruled that the restaurants’ revenue losses resulting from COVID-19 and related government orders were covered under AXA’s policies.

Evolving government orders will affect the way many retail businesses operate and the potential insurance available for losses and expenses. For instance, on April 28, 2020, the State Health Officer of Alabama issued an Order allowing some businesses to reopen, but under strict sanitation and social distancing guidelines. Retail stores, for example, will be allowed to reopen but must maintain a maximum occupancy rate of 50%. While a partial opening may restore some level of activity, because these businesses must operate at a reduced capacity, their operations will not return to normal. Beyond that, while some states are loosening social distancing requirements, others have extended them. Indeed, on the same day that Alabama announced its partial reopening, the Governor of Massachusetts extended the closures of non-essential businesses. Regardless of location, many businesses will likely sustain substantial losses because of these orders, and will incur expenses to comply with evolving requirements and operational guidelines.

A recent outbreak of Legionnaires’ Disease has been traced to a Sheraton hotel in Atlanta, Georgia.  According to the Georgia Department of Public Health, 11 cases are confirmed and 55 more cases are “probable.”  The Atlanta Sheraton closed on July 15 to investigate the outbreak.  The closure is certain to result in a substantial immediate loss of revenue for the property.  The closure and loss of advanced reservations also will likely result in an extended interruption of hotel revenue.  Add to that potential stigma-related losses that will result from those afraid to reenter the property after the hotel reopens.  Sheraton will likely turn to its insurers to seek payment for its business interruption costs.

In the first part of a 3-part series, the Hunton insurance team discusses how policyholders can plan for this year’s hurricane season. Part 2 will address how to prepare a claim after a loss in order to maximize the potential recovery, including by taking photographs of any damage and tracking curfews that affect your operations.  Part 3 will discuss how to prevent denials of pending claims based on suit limitations periods.  The team’s goal is to provide a comprehensive outline that will guide policyholders before and after a loss.

Hurricane Florence will affect the U.S. east coast later this week with significant damage to property and resulting business disruption.  Businesses far-removed from the impact zone also will be affected as manufacturing, retail, travel and supply chains, among other industries, are disrupted by the physical damage.  For those in the impact zone, knowing the fundamentals about your property insurance is critical.  For those in remote locations, now is a good time to refresh yourself as well, since post-storm disruptions and losses require prompt notice to insurers and fast action to help mitigate any resulting loss.  A failure on either front could jeopardize coverage.

On Wednesday, my colleagues Walter Andrews and Katie Miller published a timely article in Florida’s Daily Business Review discussing the availability of insurance coverage for continuing losses suffered by businesses directly and indirectly affected by Hurricane Irma.  The article, titled After Irma: Is Your Business Entitled to Insurance Coverage for Additional Lost Profits?, has equal application to those affected by Hurricanes Maria and Harvey.  As the article explains, continuing business income losses may be covered under common property insurance policy provisions.  Where they are not, the article provides insightful advice for policyholders as they approach policy renewal so they can fill gaps that may exist in their current coverages.  A copy of the article can be found here.

Homeowners and businesses are beginning the painful recovery process following the devastating fires in California. Insurance money will be critical to that process. Read Lorie Masters' and Michael Levine's article in Law360 about how you can protect your right to access those critical funds.

Hunton & Williams' Insurance Recovery Team Head, Walter Andrews, was spotlighted in an article published in the Houston Chronicle last week regarding insurance for losses from Hurricanes Harvey and Irma. While the storms were devastating in their own unique ways – Harvey with extensive flooding; Irma with extreme wind and storm surge – both have substantially impacted local and national businesses.  As Andrews explains, "if you don't have any customers, or if they can't access your facilities, you don't have business.  Many businesses are facing vast amounts of lost earnings ...

In an article published September 12, 2017 in South Florida’s Daily Business Review, Hunton & Williams insurance lawyers Walter Andrews and Andrea DeField explained why it is critical that policyholders act fast to maximize insurance recovery for their hurricane-related losses.  They also provided a checklist to guide policyholders through the claim process.  As Andrews and DeField explain, in addition to providing prompt notice to all potential insurers, policyholders should collect all loss-related receipts and document the damage with photographs.  Good organization of ...

Last week, nearly 200,000 people were evacuated from areas downstream of the Oroville Dam in Northern California. Today, separate recommended and mandatory evacuation orders continue for roughly 50,000 San Jose residents due to rising flood waters along Coyote Creek. Between the Oroville Dam crisis and the torrential storms battering Northern California, California businesses face significant loss arising from the flooding, the threat of flooding, landslides and the like. Fortunately, some of the damage to property and businesses can be mitigated by insurance.

Many communities are breathing a sigh of relief as winter weather kills off a good portion of the Zika-carrying mosquito population – at least in some parts of the US, and at least until next spring.  But dwindling mosquito populations have not diminished business concerns about Zika-related losses.  Since the health effects of Zika may not be apparent until months after birth, businesses in mosquito-popular locales should assess their option to cover the losses caused by Zika, or the mere threat of Zika.  Read my colleagues Walter Andrews, Michael Levine, Andrea DeField’s ...

The World Health Organization (WHO) has called Zika an international public health emergency. The insurance industry is taking notice. Civil authorities have already begun to issue notices, like the Center for Disease Control’s travel notices for areas in which Zika transmission is occurring. As highlighted by Marsh in a recent blog post, the potential for action by civil authorities can create problems for some policyholders.¹