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Despite the seemingly calm tropics, hurricane season is still going strong and will be for another two months. Is your business prepared in the event a hurricane hits? Andrea DeField and Alice Weeks recently published an article in Risk Management Magazine which is full of tips to minimize losses and maximize recovery in the event…

Last week, a New York federal court ruled that an insurer’s “exceedingly broad duty to defend the insured” extended to the policyholder’s indemnification of its landlords in an underlying tort claim. ConMed Corporation (“ConMed”), a medical technology company, filed suit against Federal Insurance Company (“Federal”), a division of Chubb, alleging that Federal breached the terms of its insurance contract when it refused to defend ConMed’s landlords in a Georgia lawsuit.

The coverage dispute stemmed from ConMed employees’ claims that they were exposed to unsafe levels of ethylene oxide, a chemical used to sterilize ConMed’s equipment. Initially, the employees sued ConMed and its contractor that conducted the sterilization, but in April of 2021 the employees initiated a separate suit against ConMed’s landlords (“Landlord Action”). In the Landlord Action, plaintiff employees alleged negligence, aiding and abetting tortious conduct, fraud, wrongful death, and vicarious liability/respondeat superior claims, all stemming from their exposure to ethylene oxide. Pursuant to the lease agreement with ConMed, the landlords tendered the defense and indemnity of the Landlord Action to ConMed, which subsequently tendered the defense to Federal. Federal failed to accept defense of the Landlord Action, and ConMed filed suit.…

Continue Reading NY Federal Court Rules Insurer Must Cover Policyholder’s Landlords Under Lease Agreement’s Indemnity Provision

In 2020, Americans faced a shortage of toilet paper. This year, companies face a shortage of microchips. Microchips are a crucial component in a growing number of electronic products, everything from smartphones to cars and household appliances. As the shortage trickles down the supply chain, downstream businesses are now unable to obtain the microchips or other components they need to make their products. This forced companies to slow or, in some cases, totally shut down their production lines until the supply of microchips can be restored. These slowdowns and closures have led to substantial losses of income for affected businesses. Fortunately, insurance coverage is likely available for these types of business income losses.
Continue Reading Can’t Find Microchips? Insurance May Help Ease the Pain

On Wednesday, a federal judge in New York denied FM’s Rule 12(c) motion for judgment on the pleadings after finding the Contamination Exclusion in the Factory Mutual policy to be ambiguous as to whether it bars coverage for business interruption losses resulting from communicable disease.  The case is Thor Equities, LLC v. Factory Mutual Ins. Co., No. 20 Civ. 3380 (AT) (SDNY).  This is a critical decision under the Factory Mutual policy form, which is substantively the same as policies issued by Factory Mutual’s sister company, Affiliated FM Insurance Company.  Factory Mutual and Affiliated FM have maintained that the contamination coverages are “exceptions” to this exclusion, with the exclusion precluding coverage for communicable disease loss under other policy coverages.  But the ruling validates what policyholders have been arguing – that communicable disease “loss” is covered throughout the Factory Mutual policy, in addition to under the sublimited communicable disease emergency response coverages.
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Continue Reading Factory Mutual’s “Contamination” Exclusion Is Ambiguous; May Not Limit Coverage For COVID-19 Business Interruption Loss

The unprecedented impact of COVID-19 on the American economy has forced many businesses of all sizes and in all industries to seek some form of financial relief. Perhaps the most prominent source is the Coronavirus Aid, Relief, and Economic Security Act (commonly known as the CARES Act), which provides more than $2 trillion in assistance…

On May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co.  The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire.  The issue was whether the homeowner’s policy covered the loss.  The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part.
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Continue Reading California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies

Louisiana joins a growing list of states, including New Jersey, Massachusetts, Ohio, and New York that are considering legislation, here and here,  that would require insurance coverage for the business interruption losses caused by COVID-19.  We have discussed other legislative efforts here and here.  The Louisiana House and Senate have each put forth…

Following New Jersey, where similar legislation remains under informal discussion, lawmakers in Ohio, Massachusetts, and New York have now introduced legislation that would provide relief to small businesses for COVID-19 business interruption losses.  The legislation is conceptually identical to the legislation introduced in New Jersey, discussed here last week.  Although the New Jersey bill was…

Last week, we reported that the New Jersey General Assembly passed a bill that would force property insurers to cover certain business interruption losses arising from COVID-19.  The bill presented a lifeline to small businesses in New Jersey that are being racked by the economic fallout stemming from COVID-19.  Before reaching the New Jersey…

On March 16, 2020, the New Jersey General Assembly passed a bill that would force property insurers to cover business interruption losses arising from the COVID-19 virus sustained by small businesses (less than 100 employees working more than 25 hours a week); a copy of the bill can be found here.  Significantly, the bill would force coverage even where the insurer believes its policy should not apply.  In particular, the bill provides that property policies in effect as of March 9, 2020, will be construed as providing “coverage for business interruption due to global virus transmission or pandemic,” including COVID-19.  As written, the law would defeat any attempt by insurers to rely on exclusions that purport to preclude coverage for business income loss resulting from viruses, including the much-touted ISO CP 01 40 07 06 Virus or Bacteria Exclusion that insurer-side advocates have been championing as a purported bar to COVID-19 losses.  The bill would provide much-needed relief to the New Jersey policyholders that are enduring the worst of COVID-19’s economic impact with the least ability to withstand it.
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Continue Reading The New Jersey General Assembly Passes Bill Ensuring Business Income Coverage for COVID-19 Losses