Ohio becomes the heart of COVID BI claim litigation
Insureds might be in a race to get lower court cases to trial if rulings in favor of insurers are upheld on appeal.
With two federal courts in the state handing down divergent rulings on whether COVID-19 would constitute a physical loss for business interruption (BI) claims, Ohio is the center for these cases, with judges around the country watching to see which side prevails during appeals.
Through the first three quarters of 2020, business interruption claims stemming from COVID were largely going in favor of insurers, according to K. James Sullivan, leader of the insurance recovery practice and partner at Calfee, Halter & Griswold LLP.
However, a North Carolina court ruled having the virus on a business’s property would constitute physical loss as the building could no longer function as before. Ohio became the epicenter for this issue on Jan. 19, Sullivan explained, when a federal court in the state handed down a ruling in line with that of the North Carolina court. This ran counter to previous rulings on BI claims from courts in the state.
A federal court judge has asked the Ohio Supreme Court to weigh in, but the state’s top court has yet to pick up the case.
“So far, we have seen a patchwork of state and federal trial court cases,” Sullivan told PropertyCasualty360.com. “That was year one. In year two, we are going to see higher authorities weighing in.”
The race is on in year two
He explained rulings in the first year typically went to insurers because of the flexibility companies had in choosing which BI claims to litigate around the country and the position of being able to achieve motions to dismiss early in the proceedings.
Additionally, this area is ripe for bad faith litigation because many of these cases were filed swiftly from the onset of the pandemic, according to Hannah Smith, editor of PC360 sister site Insurance Coverage Law Center. As a result, the industry responded to the influx of lawsuits by moving quickly on cases that were poorly pled or were filed by attorneys without substantial experience in the insurance coverage realm, resulting in early decisions being found for insurers.
Now that trend is beginning to reverse itself as courts have had the opportunity to evaluate better complaints and strategies by policyholders. Motions to dismiss have been denied, and more cases have been allowed to proceed.
“For a policyholder to win, they need to get to a later stage, either summary judgment or the trial phase,” Sullivan said. “The deck was stacked in favor of insurers during year one just because of the procedural timing of things.”
This has set up a race of sorts, as policyholders sprint to get to later stages of the litigation process in lower courts before higher courts start ruling on appealed BI-claim cases, he said, adding: “If higher courts around the country start collectively ruling in favor of insurers that is basically the end of the story for a lot of the cases going on. Not all of them, but for a lot of them.”
Appeal reversals could trigger settlement surge
If higher courts begin to rule in favor of policyholders, while cases in lower courts rush to summary judgment or trial, tides would shift radically.
“The real consequence of that is you aren’t seeing insurance companies willing to negotiate settlements in these higher court cases, but if more lower courts rule in favor of policyholders, that is when you’ll start to see claims settled,” Sullivan said.
The implications of these court cases stretch beyond COVID, as they could come to bear during future pandemics and even potentially impact claims stemming from environmental hazards or climate change, he explained.
“This could define and set the scope of these coverages for many decades to come and as a secondary outcome change policy languages,” Sullivan said. “Insurance companies could also start selling products intended to cover losses like this. There is nothing stopping a smart insurer from creating standalone BI products that aren’t tethered to a commercial property company.”
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