Draft Federal Legislation Reinforces Advice to Promptly Notify Insurers of COVID-19 Losses

April 13, 2020 Published Article

Insurers across the country are nearly universally denying claims for business interruption stemming from the COVID-19 pandemic.  Those denials have in turn been met with swift litigation and potential legislative action.  The first business interruption coverage lawsuit related to COVID-19 was filed in New Orleans on March 16.  There are now no less than 13 such cases nationwide and many more are likely to follow.  Further, legislatures in at least seven states are considering legislation that would, to varying degrees, mandate business interruption coverage for COVID-19 losses, notwithstanding any seemingly contrary policy provisions.

From the early stages of the pandemic, we have consistently advised our clients to promptly notify their insurers of all COVID-19 related losses, even where coverage appeared uncertain.  The deluge of coverage litigation and contemplated legislation could drastically alter how insurers handle COVID-19 claims.  But policyholders who have failed to satisfy policy notice requirements could miss out on the benefits of those changes.  Therefore, policyholders would be ill-advised to sit on the sidelines and wait it out. 

Now, draft Federal legislation appears to add further impetus to instructions to “tender early.”  The contemplated “Pandemic Risk Insurance Act of 2020” would reportedly devote billions of dollars of federal funds through a Department of Treasury administered reinsurance program designed to offset losses sustained by insurers who actually pay business interruption losses.  The legislation is still taking shape but would reportedly create “a Federal program that provides for a transparent system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease.”  President Trump is also reportedly pressuring insurers to provide business interruption coverage.  The massive influx of federal funds and pressure from the White House could encourage insurers to reconsider denials of COVID-19 business interruption claims. 

While the draft legislation is in its infancy and the end-result far is from clear, the reinsurance component will likely be a key feature.  Therefore, in order to obtain any benefit, policyholders will likely need to have complied with the notice provisions of their policies. Thus, the proposed legislation once again confirms that policyholders should promptly notify carriers of their COVID-19 losses.

Newmeyer Dillion is tracking these trends and issues to counsel our clients whose businesses are at stake during these unprecedented circumstances. Please reach out to our COVID-19 Task Force, [email protected] for any questions, or contact our office directly at 949-854-7000.