October 22, 2020

Volume X, Number 296

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Business Interruption Insurance Coverage Issues Arising from the COVID-19 Pandemic

Business interruption (BI) insurance is an optional coverage available as part of a company’s commercial property insurance.  It is intended to protect businesses against income losses and extra expenses sustained as a result of certain disruptions in their operations arising from a “covered cause of loss.” There may also be riders, endorsements and other types of specialty coverage policies such as Dependent Property Time Element coverage that may address losses relating to the COVID-19 Pandemic.

In order to ascertain whether you have coverage and the type of losses that may be covered, some factual questions to consider include:   

  • Is your business interruption policy a standard ISO policy?

  • What exclusions are there to your policy and, what other policies may address losses arising from the COVID-19 Pandemic?

  • Is there or has there been a known or suspected coronavirus contamination in your business premises or in other tenants’ spaces or the common areas of your building?

  • Has any employee of your business tested positive for coronavirus? 

  • Has a customer who has visited your business premises tested positive for coronavirus? 

  • Have you had to close your business premises as a result of known or suspected COVID-19 contamination in your business premises or in other tenants’ spaces or the common areas of your building?

  • Has premises upon which you rely on to remain in business closed because of COVID-19 contamination anywhere in the building?

  • Have you been ordered to close your business by a local, state or federal authority (and identify facts to support why your business should be closed)?

  • Have you incurred expenses in setting up a temporary business location?

  • Did you obtain coverage from a broker and, if so, what representations did the broker make in regard to what the policy would cover?

Another issue to consider is a possible errors and omissions claim against your insurance broker. Broker liability law differs from state to state, however, New Jersey recognizes broad broker liability in tort, while some states like New York have narrower contract-based broker liability.

We note that many consider the analog to business interruption insurance to be rent insurance which generally protects against loss of a contractual stream of income, such as rental income paid by a tenant to a landlord, and should be considered where applicable to the context.

Finally, please note that certain governments are considering legislation to help policyholders in dealing with certain exclusions under standard BI policies.

© Copyright 2020 Sills Cummis & Gross P.C.National Law Review, Volume X, Number 94
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About this Author

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Mr. Novak has focused on insurance law for 33+ years and has represented insurance carriers, insurance producers and policyholders. He has handled insurance and reinsurance coverage disputes involving Director and Officer, professional errors and omissions, excess and umbrella, surety, fidelity, property and general liability policies.  He has recovered over a hundred million dollars of reinsurance on product liability, asbestos, environmental and surety losses.  He has handled a wide variety of insurance producer litigation including brokerage errors and omissions claims by policyholders...

(973) 643-5383
Elissa Glasband, Sills Cummis Law Firm, Newark, Litigation Attorney
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Elissa J. Glasband is a Member of the Sills Cummis & Gross Litigation, Mass Tort and Product Liability Practice Groups. She litigates cases for clients in the areas of complex civil litigation, including product liability, toxic tort, environmental, consumer fraud and securities litigation on behalf of Fortune 500 companies in state and federal courts throughout the U.S. and before the Judicial Panel on Multidistrict Litigation.

Ms. Glasband has extensive experience formulating litigation strategies based on complex medical and scientific issues and responding to toxic tort allegations, including assessing the scientific issues related to such claims. She regularly identifies and retains experts and has worked with some of the country’s most prominent exposure and liability experts to develop scientific defenses for her clients.

Ms. Glasband advises clients on electronic discovery matters and has extensive experience counseling clients on record retention compliance policies and procedures. She routinely advises clients regarding preservation notices and electronic discovery matters. She has coordinated and managed many large-scale electronic and hard copy document collections, reviews and productions in complex federal and state litigations, including class actions. Her experience spans the entire litigation process, from the investigatory and pleading stages through discovery, witness preparation, trial and appeals.

973-643-5567
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