Every federal appellate court to consider the question so far has ruled that commercial all-risk property insurance policies do not cover income lost due to the Covid-19 pandemic, but policyholders’ lawyers say the fight is just getting started on the battlegrounds that matter the most: the state supreme courts.
“It's definitely not over. That’s the takeaway for 2023,” said Michael Levine of Hunton Andrews Kurth, who is representing policyholders in multiple Covid-19 business interruption disputes nationwide.
The 9th Circuit seemed to rule out that possibility in a 2021 decision, but not all state courts agreed with it. Some appellate divisions ruled in 2022 that plaintiffs must have a chance to show that the virus does, in fact, cause a “physical alteration” by adhering to surfaces. CRO, represented by attorneys at Cohen Ziffer Frenchman & McKenna, says the New York trial and appellate courts improperly grafted a requirement of “tangible alteration” onto the definition of property damage, which would eliminate coverage for pollutants and harmful fumes.
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