From the beginning of the pandemic, coverage for business interruption claims or lack thereof has been one of the largest issues for businesses that were forced to close under government order. The claims in large part are not covered due to a variety of reasons, primarily lack of physical damage to property or virus exclusions. The industry has advocated from the beginning that pandemics are similar to terrorism or flood, cannot be properly rated at a reasonable cost to insureds, and need to be handled by a federal solution.

Businesses are losing an estimated $1 trillion a month because of the disruption, yet the insurance industry collects $4.5 billion a month for all commercial properties. Even if all those premiums were for business interruption coverage, the industry falls short by $995 billion dollars monthly. The insurance industry would be destroyed in the first month, leaving everything uninsured. 

At the outset a number of ideas were proposed, including a Pandemic Reinsurance Act, which would create a reinsurance program similar to the Terrorism Risk Insurance Act; a COVID-19 Business and Employee Continuity and Recovery Fund providing assistance directly to businesses, a revision of TRIA to include pandemics, and others discussed here: Will there be a Pandemic Version of TRIA? 

The American Property Casualty Insurance Association (APCIA) in conjunction with the National Association of Mutual Insurance Carriers (NAMIC) and the Independent Insurance Agents and Brokers of America (Big I) have drafted a Business Continuity Protection Program (BCPP) as an alternative to backstop plans similar to TRIA. Pandemics are fundamentally uninsurable as they are too widespread, severe, and unpredictable. Virtual meetings with members of the US House Financial Services Committee are planned over the next two weeks to promote the plan. 

The BCPP is designed to work for customers of any size to protect against shutdowns due to future pandemics. The plan would provide up to 80 percent of payroll and other expenses for those participating in the program. Businesses would be required to certify that they will use funds to retain employees; pay necessary operating expenses and that they will comply with federal pandemic guidance. Relief would be triggered by a federally declared public health emergency. 

Businesses would purchase revenue replacement assistance with a one page electronic application using data from past tax returns. Applications would be made through state-regulated insurance entities voluntarily participating in the program. Protection must be purchased at least ninety days before a Presidential viral emergency declaration is made in order to prevent fraud and adverse selection. Businesses could select up to three months of protection for up to 80 percent of payroll (excluding highly paid employees), employee benefits and operating expenses. Multistate companies would need to provide a specific allocation of protection at the time of application or renewal so that it was clear what coverage was provided in what state. Coverage can be provided for any business incorporated in the United States or territories, including nonprofits. 

Relief would be triggered immediately following a Presidential viral emergency declaration, and closure declarations would specify which types of businesses are fully or partially closed by using NAIC classifications. The program would be administered by FEMA with assistance from private contractors. Audits would be conducted post-relief to ensure funds had been used properly and fines, repayment and criminal penalties would be used to ensure that funds had been used as designed. The program would consider purchasing reinsurance on an annual basis, and would work with mitigation experts to develop pandemic and viral mitigation and safety guidelines for businesses that would be provided to those purchasing coverage at the time of application and payment.

What is apparent is that the industry cannot support the number of claims that rise from a pandemic. Many have already been filed and denied, and many suits are in play because insureds believe there should be coverage. Pandemics are rare enough that individual carriers, even if coverage was developed, could not develop affordable rates to provide coverage for subsequent claims. A program of some sort needs to be developed in order to protect both insureds and the industry.

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