Business Interruption
vs. Event Cancellation: What’s the Big Difference?

As I’ve written previously, the question of whether business interruption provisions in commercial property insurance apply to COVID-19-related losses has become a major topic of debate during this pandemic. Suits have been filed seeking to establish that policyholders are entitled to coverage for such losses – even when losses associated with infectious disease are specifically excluded in the policy language.

This debate has been muddied in some circles by people confusing business interruption coverage with event cancellation insurance.

Citing the fact that the National Collegiate Athletic Association (NCAA) had its claim paid when it cancelled its annual men’s basketball tournament, as did the All England Lawn Tennis Association when it canceled its Wimbledon event, some wonder why many other businesses’ claims are being rejected.

While superficially similar, these claims couldn’t be more different from the business interruption cases currently being litigated.

Business Interruption: Physical Damage Required

Property insurance covers physical loss or damage to an insured’s property. The business interruption provisions of commercial property policies typically require a direct relationship between a physical loss or damage and the resulting lost income. The Insurance Services Office (ISO) form for commercial property coverage – the basis of many policies – specifies that any covered loss due to “necessary suspension” of operations must be caused by “direct physical loss of or damage to property at premises which are described in the Declarations.”

This is a critical point, as most business losses related to COVID-19 are due to employees and customers remaining absent, supply chain disruptions, and other factors – not to physical damage.

 “A property policy may, for example, pay to repair the damage caused by a fire and may cover the loss of business during the reconstruction period,” writes Michael Menapace, a professor of insurance law at Quinnipiac University School of Law and a Triple-I Non-Resident Scholar. “But here’s the rub.  Are the business interruptions related to COVID-19 caused by physical damage to property?”

Insurers say no, arguing that “damage to property” requires structural alteration like one would find when, say, a fire destroys the interior of a building or wind damages windows. The virus leaves no visible imprint. Even if remediation is needed – like cleaning mold from metal surfaces – insurers cite cases in which judges have ruled there’s no physical damage from mold if the mold can be cleaned off.

Add to this the fact that most policies exclude coverage for losses related to infectious diseases and it’s hard to imagine U.S. courts finding in favor of the plaintiffs – particularly when pandemic insurance existed well before COVID-19 and was largely ignored by business owners and risk managers.

Event Cancellation Insurance

COVID-19 has led to the cancellation of events from weddings to business conferences to the Tokyo Summer Olympics. Individuals and businesses buy event cancellation insurance against losses resulting from a cancellation due to circumstances beyond their control, including:

  • Weather or other natural events like hurricanes, tornadoes, and earthquakes, and
  • Human-caused events such as labor strikes and acts of terrorism.

If a policy is an “all-cause” or otherwise unlimited policy, it could cover cancellations due to COVID-19, particularly if purchased before 2020.

Wimbledon’s organizers were among the few who bought event cancellation insurance that specifically included coverage for losses related tocommunicable disease after the 2003 SARS outbreak. They paid about £25.5 million (US$33 million) in premiums since then and are set to receive around £114 million (US$142 million) for this year’s cancelled tournament, according to GlobalData.

GlobalData said the event still faces a net loss. The total Wimbledon revenue loss is estimated at around £250 million (US$328 million).

The NCAA had a policy for its “March Madness” tournament that had to be cancelled.  Its event cancellation policy covered just $270 million, even though the tournament generates more than $800 million a year. The organization reportedly was better prepared for a cancellation several years ago, when it built up savings of nearly $500 million to help mitigate the financial impact of a lost tournament.

“Then, in 2015, new leadership decided to spend more than $400 million of those savings without increasing the NCAA’s insurance coverage by following a questionable theory about the risk of saving that much money,” the Washington Post reports, citing former NCAA employees.

The availability of such coverage without exclusions for infectious disease may be limited or even more expensive in the wake of the current pandemic.

Hurricane Isaias follow-up: 8/11/2020

PSE&G workers work on power lines after Tropical Storm Isaias passed through on August 4, 2020 in Bogota, New Jersey. (Photo by Eduardo Munoz Alvarez/Getty Images)

Thousands of East Coast residents were still without power a week after Tropical Storm Isaias barreled through more than 12 eastern states, including New York and New Jersey, on August 4.

Isaias made landfall in North Carolina on August 3 as a Category 1 hurricane, with maximum sustained winds of 85 miles per hour before weakening to a tropical storm. Damage to Caribbean islands and along the U.S. Atlantic coast stemmed from flooding, power outages, downed trees, and tornadoes.

Isaias was the fifth named storm of the “extremely active” 2020 hurricane season.  Preliminary insured loss estimates from Isaias range from over $1 billion (Aon) to $4 billion (Karen Clark & Co.) Damage is still being tallied, and these estimates are likely to change.

Like every disaster, Isaias will give rise to criminal activity. The National Insurance Crime Bureau (NICB) reminds us that crooks posing as contractors may press homeowners into paying out their insurance claim before repairs are completed. Once they collect the payment, they disappear without completing the promised work. To keep from becoming a victim of these contractor scams, follow these tips from the NICB. The tips include getting more than one estimate and getting everything in writing.

Another post-disaster scam is the sale of flooded vehicles. Dishonest dealers can buy flooded vehicles, clean them up and sell them to unsuspecting buyers. If you are shopping for a used vehicle, NICB recommends checking a few items, such as water stains and mildew that could indicate whether the vehicle is a flood recovery vehicle or not.

NICB also provides a free tool called VINCheck that allows consumers to check a vehicle for a “red flag,” such as theft, accident damage, or salvage titles.

Additional Insureds: How Policy Language Can Create Dramatic Consequences

By John Novaria, Managing Director, Amplify

Underwriters routinely receive requests to add additional insureds to policies. But failure to add insureds correctly can open up insurers to potentially huge losses.

Companies typically need to add additional insureds to allow them to fulfill their obligations with their contractual partners. The requests are commonly associated with coverage for the marine and energy business, but construction and other industries often need to add insureds as well. Those requests can involve commercial general liability, excess and umbrella and other liability policies.

Maritime legal expert Harold “Hal” K. Watson recently conducted an interactive educational webinar on the proper addition of insureds for the American Institute of Marine Underwriters (AIMU). Watson, a partner at Chaffe McCall LLP in Houston, is a former president of the Maritime Law Association of the U.S. and an internationally renowned authority in marine and energy insurance.

Using detailed examples from actual cases — including the Deepwater Horizon disaster — Watson illustrated how policy language surrounding additional insureds can cause claims to go wrong. He offered the audience of underwriters, brokers and claims adjusters practical suggestions for writing policy language in specific ways to prevent problems.

Watson explained how arguably ambiguous policy language became a significant factor in Deepwater Horizon, the offshore drilling rig that in April 2010 blew out, resulting in an explosion that killed 11 crew members and caused billions of dollars in pollution and environmental damage in the Gulf of Mexico. Transocean owned the drilling rig, but it was under contract to BP. Watson noted that the contract between the two companies required Transocean to name BP as an additional insured for some purposes. But there was uncertainty whether or not the insurance policy incorporated the limitations of the drilling contract.

The U.S. Court of Appeals for the Fifth Circuit initially held that the insurance policy did not incorporate the limitations in the contract, but then certified the case to the Texas Supreme Court since Texas law applied. The Texas Supreme Court finally ruled that the insurance policy did incorporate the limitations, but if the Fifth Circuit’s original ruling had stood, BP would have been entitled to all of Transocean’s insurance coverage limits.

Watson explained how wording can be used to avoid situations that essentially give away an insured’s coverage. He also discussed other areas involving risks and exposures including:

  • The distinction and nuances between indemnity clauses and insurance policies.
  • The need for caution when providing broad coverage for additional insureds.
  • How additional insureds come into play in umbrella and excess liability policies, including specialized maritime policies.
  • The effect of anti-indemnity statutes pertaining to oil and gas wells in Texas and Louisiana

AIMU has seen growing interest in its educational offerings as it pivots from live to virtual events. According to AIMU President John Miklus, there were nearly 100 attendees at the “Additional Insureds” webinar and a similar number at another recent webinar on yacht insurance fundamentals.

AIMU’s primary focus is on education of its members and the insurance community at large and continues to deliver its programs using innovative methods. Click here for more information on upcoming classes.

I.I.I. Media Tour: What You Need to Know and Do
as Hurricane Season Peaks

The Insurance Information Institute (Triple-I), along with Colorado State University’s atmospheric research scientist Dr. Phil Klotzbach, will be conducting a satellite media tour on Tuesday, August 11, to talk about what may lie ahead for the remainder of the hurricane season.

Dr. Phil Klotzbach, Colorado State University

We will be talking with news organizations throughout the U.S. about the steps individuals and businesses in hurricane-prone states need to take to protect their property and possessions with the right type—and amount—of insurance.

The following subject-matter experts will be available for interviews:

  • Sean Kevelighan, CEO, Insurance Information Institute (Triple-I)
  • Dr. Phil Klotzbach, Research Scientist, Colorado State University and a Triple-I Non-Resident Scholar
  • Laura L. Favinger, Chief Administrative Officer, Triple-I
  • Mark Friedlander, Director, Corporate Communications, Triple-I

Damage caused by tropical storms and hurricanes can upend lives for months, and sometimes years. Even in the country’s most vulnerable coastal states, individuals and businesses may underestimate their risk or have insufficient insurance coverage, operating without either an evacuation or a business continuity plan.

As the peak of 2020’s already busy Atlantic hurricane season approaches, it’s time to make sure you’re ready.

Nearly 20 media outlets have signed up to participate, and the following stations will be broadcasting live interviews (times are Eastern Standard):

08-11-2020 08:35 am – 08:45 am ET: WRAZ-FOX TV Raleigh-Durham (27) “WRAL’s 8am News on Fox50” Live
08-11-2020 09:20 am – 09:30 am ET: WPBF-ABC TV West Palm Beach-Ft. Pierce (36) “WPBF 9AM NEWS” Live
08-11-2020 09:40 am – 09:50 am ET: WBRC-FOX TV Birmingham (Ann and Tusc) (44) “Good Day Alabama” Live
08-11-2020 10:20 am – 10:30 am ET: WTKR-CBS TV Norfolk-Portsmth-Newpt Nws (42) “Coast Live ” Live

If you’d like to arrange an interview with our experts, please contact MultiVu Media Relations, 800.653.5313 x3

Legislatures Advance
COVID-19-related Bills

As states struggle to identify the best ways to reopen their economies, agencies, and schools from the coronavirus-related lockdown, legislatures have been moving forward legislation to protect them and the people they employ.

Virginia Approves Worker Health & Safety Standard

The Virginia Occupational Safety and Health (VOSH) – the state’s version of the federal Occupational Safety and Health Administration (OSHA) – will enforce a standard that mandates and, in some instances, exceeds guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA, PropertyCasualty360.com reports.

The standard protects employees who raise reasonable concerns about infection control to print, online, social, or other media. It covers most private employers in Virginia, as well as all state and local employees.

The standard also requires building and facility owners to report positive COVID-19 tests to employer tenants. It exempts private and public institutions of higher education with reopening plans certified by the State Council of Higher Education in Virginia (SCHEV) and public-school divisions that submit reopening plans to the Virginia Department of Education. No such exemptions are provided to private elementary and secondary schools.

In addition to CDC and OSHA guidelines, the standard requires employers to:

  • Provide flexible sick-leave policies, telework, and staggered shifts when feasible;
  • Provide handwashing stations and hand sanitizer when feasible;
  • Assess risk levels of employers and suppliers before entry;
  • Notify the Virginia Department of Health of positive COVID-19 tests;
  • Notify VOSH of three or more positive COVID-19 tests within a two-week period;
  • Assess hazard levels of all job tasks;
  • Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
  • Prepare infectious disease preparedness and response plans within 60 days;
  • Post or present agency-prepared COVID-19 information to all employees; and
  • Maintain air handling systems in accordance with manufacturers’ instructions and the American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.

Special Legislative Session for Tennessee Liability Bill

Weeks after Tennessee’s two legislative chambers failed to come to an agreement on legislation surrounding civil liability for coronavirus, Gov. Bill Lee called the state’s General Assembly to return next week for a special session, The Tennessean reports.

Lee issued an order asking members of the legislature to return to Nashville at 4 p.m. on Aug. 10 to take up the matter, which would extend broad immunity to businesses, schools, and other entities against COVID-19-related lawsuits.

The General Assembly also is expected to take up two other bills it failed to pass before adjourning in June. One would expand medical professionals’ ability to offer telehealth services and encourage insurers to cover those costs. The other would increase penalties for protesters camping and engaging in vandalism at the Capitol. A group of protesters has remained across the street from the Capitol for more than 50 days, resulting in the arrest of some for trespassing and writing messages in chalk.

Nevada Senators Advance Liability Shield Measure

State senators in Nevada, by an overwhelming majority, advanced legislation that would extend COVID-19 liability protections to businesses, nonprofits, schools, and governmental agencies and outlining several measures intended to protect hospitality workers, The Las Vegas Sun reports.

The legislation would extend COVID-19 liability protections to many entities that have “substantially complied with controlling health standards.” Provisions of the bill would sunset either upon the termination of the current state of emergency or in July 2023.

The measure wouldn’t extend to most private health care providers.

“Unease with the bill’s focus on the tourism and gaming industry crossed party lines,” the Sun writes. “Sen. Marcia Washington, D-North Las Vegas, said she was concerned why the bill singled out hospitality workers: ‘I’m here to represent, as far as I’m concerned, everybody, all the workers in the state of Nevada,’ Washington said.”

Marie Neisess, president of the Clark County Education Association, said the bill did nothing to help teachers going back into the classroom this year.

“Even with the best safety measures in place, educators and students will still be at risk,” Neisses said. Putting a bill in place that protects the employer rather than the employee is unacceptable.”

The bill now advances to the Senate floor for final action as lawmakers continue to meet in special session.

“Rebuttable Presumption” for Essential Workers Goes to N.J. Governor

New Jersey may become the next state to enact a law presuming that essential workers who acquire COVID-19 did so on the job, Business Insurance reports.

Lawmakers in the New Jersey Assembly and Senate on Thursday passed S.B. 2380 with a 42-27 vote in the Assembly and a 27-12 vote in the Senate. The bill, introduced in early May, would create a rebuttable presumption for essential workers seeking workers compensation for acquiring COVID-19 on the job during a declared state of emergency.

The bill identifies essential employees as those whose duties are considered essential during an emergency response and recovery operation; public or private sector employees whose duties are essential to the public’s health, safety, and welfare; emergency responders and workers at health-care facilities and those performing jobs that support a health-care facility, such as laundry, research, and hospital food service.

The bill moves to Gov. Phil Murphy’s desk. If signed into law, the legislation would take effect immediately and be retroactive to March 9. According to Business Insurance, a spokeswoman for Gov. Murphy declined to comment on whether he intended to sign the legislation.

2020 hurricane forecast updated: “Extremely active” season expected

The 2020 Atlantic hurricane season activity is projected to be “extremely active,” according to Triple-I non-resident scholar Dr. Phil Klotzbach.

Dr. Klotzbach, an atmospheric scientist at Colorado State University (CSU), and his team issued an updated forecast on August 5. They project the 2020 Atlantic hurricane season will have 24 named storms (up from 20 in the previous forecast), 12 hurricanes (up from nine), and five major hurricanes (up from four).

The 24 named storms include the storms that have already formed. An average season has 12 named storms, six hurricanes and three major hurricanes.

The activity is driven in part by reduced vertical wind shear. Strong wind shear tears apart hurricanes. Observed wind shear has been very low in July, which means it’s also expected to be low at the peak of the season from August to October.

The probabilities of U.S. hurricane landfalls are also elevated simply because we are expecting more Atlantic storms. The U.S. has already experienced two landfalls this season with Hanna and Isaias.

People in hurricane-prone areas are advised to have a plan in place and follow the directions of local emergency managers if storms threaten.

Please click on the links below for Triple-I’s hurricane preparedness guides:


National Hurricane Preparedness Week
Hurricane Season Insurance Guide
How to Prepare for Hurricane Season
What to do When a Hurricane Threatens
Video: Create a Home Inventory
Video: Hurricane Insurance Guide

Isaias update: August 4, 2020

During the evening of August 3 Hurricane Isaias hit North Carolina, flooding areas along the shore as well as inland. The National Hurricane Center (NHC) reports that at the time of its landfall near Ocean Isle Beach, North Carolina, shortly after 11 p.m., Isaias carried sustained winds of 85 mph and was classified as a Category 1 hurricane. Isaias was downgraded to a tropical storm early on August 4, when its maximum sustained winds fell to 70 mph.

Forecasters warned that Isaias remains a dangerous, life-threatening storm as it moves up the Eastern Seaboard and could bring the strongest winds to New York City since superstorm Sandy in 2012.

Damaging winds, torrential rain, power outages and tornadoes are expected to affect metro areas including Washington, Baltimore, Philadelphia, New York and Boston. Residents in all coastal states should heed evacuation orders.

Hurricane preparedness guidance is available from Triple-I here.

Isaias Expected
to Approach
Florida This Weekend

Hurricane Isaias is expected to strengthen somewhat, to a strong Category 1 hurricane, as it crosses over the Bahamas Friday and Saturday. The National Hurricane Center (NHC) now forecasts Isaias will come extremely close to the east coast of Florida later this weekend. 

According to the National Weather Service (NWS), the strongest winds in Florida will be felt from Pompano Beach to Palm Bay, where there’s potential for winds from 58 mph to 73 mph. Miami-Dade and most of Broward are predicted to see winds from 39 mph to 57 mph.

The NHC recently posted hurricane watches from north of Deerfield Beach to the Volusia-Brevard County line and forecasts two to four inches of rainfall from south-central to southeastern Florida, with potential totals of six inches. There is also the potential for some storm surge, with exact levels dependent on the future track and intensity of Isaias.

Residents are strongly encouraged to prepare for Isaias and other storms during this above-average hurricane season – particularly with the additional challenge of COVID-19.

Broward County Sheriff Gregory Tony said South Floridians should “start to examine what other opportunities or options they may have to be out of South Florida.”

Florida has recently experienced a surge in COVID-19 cases. In preparation for the storm, the Florida Department of Emergency Management has closed all state-run COVID-19 testing sites.

“The more that we can do as individuals and focus on the things we can do to reduce the burden on government will be extremely helpful as the mayor, the county administrator are tackling different new challenges and trying to be innovative to the point where we’re not shutting down government completely, but at the same time, we’re not unnecessarily allowing for hazards and exposures to this virus,” Tony said.

Wind-caused property damage is covered under standard homeowners, renters, and business insurance policies. Renters’ insurance covers a renter’s possessions while the landlord insures the structure.

Property damage to a home, a renter’s possessions, and a business – resulting from a flood – is generally covered under FEMA National Flood Insurance Program (NFIP) policies, if the homeowner, renter, or business has purchased one. Several private insurers also offer flood insurance.

Private-passenger vehicles damaged or destroyed by either wind or flooding are covered under the optional comprehensive portion of an auto insurance policy. Nearly 80 percent of U.S. drivers choose to purchase comprehensive coverage.

Isaias Meets COVID-19: South Floridians Advised to Consider Evacuation

South Floridians should “start to examine what other opportunities or options they may have to be out of South Florida,” Broward County Sheriff Gregory Tony said in a virtual press conference as a broad area of low pressure looked increasingly likely to turn into Tropical Storm Isaias.

Tropical storm-force gusts could arrive in Florida as early as Friday night, but Saturday is much more likely, according to the National Weather Service (NWS) Miami.  

Tony said the biggest hurdle officials anticipate during the 2020 hurricane season is the ability to effectively maintain social distance while taking in large numbers of people at county storm shelters. Florida has recently experienced a surge in COVID-19 cases.

“The more that we can do as individuals and focus on the things we can do to reduce the burden on government will be extremely helpful as the mayor, the county administrator are tackling different new challenges and trying to be innovative to the point where we’re not shutting down government completely, but at the same time, we’re not unnecessarily allowing for hazards and exposures to this virus,” Tony said.

In preparation for the storm, the Florida Department of Emergency Management has said it will close all state-run COVID-19 testing sites at the end of business day today.

The storm knocked out power to more than 300,000 clients across Puerto Rico, according to the island’s Electric Power Authority. Minor damage was reported elsewhere in the island, where tens of thousands of people still use tarps as roofs over homes damaged by Hurricane Maria in September 2017.

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