By Jim Sammon
Since the start of the COVID-19 pandemic governmental lockdowns in mid-March 2020, commercial property and business owners across the country have been suffering extreme financial losses and have experienced difficulties maintaining the very basics of their business. Seeking the protection of their business interruption policies brought no relief, as the claims made across the state and country were routinely denied. The courts generally found, in one form or another, that the insurance policies in question did not cover COVID-related losses, as the virus did not create a “direct physical loss or damage to the insured’s property.”
A few trial courts found enough nuance in some insured’s policies to raise a question that coverage may apply. As we reported in January, a judge in the U.S. District Court for the Northern District of Ohio was one such court. That decision was quickly questioned by another judge in a similar case in the same District Court. Due to the disagreement, the court asked the Ohio Supreme Court to address the controversy and advise on how Ohio insurance law should be applied to the question. On April 14, 2021, the Ohio Supreme Court agreed in Neuro-Communication Services, Inc. v. Cincinnati Insurance Company to determine whether these policies should apply. Specifically, the court will answer the following question:
“Does the general presence in the community, or on surfaces at a premises, of the novel coronavirus known as SARS-CoV-2, constitute direct physical loss or damage to property; or does the presence on a premises of a person infected with COVID-19 constitute direct physical loss or damage to property at that premises?”
The Ohio Supreme Court gave the parties 40 days to file briefs to address the issue. The resolution of this matter under Ohio law could have tremendous impact on thousands of property and business owners that have been denied claims under similar prohibiting language within their insurance policies. It is likely that many amicus briefs will be filed on both sides of the issue. A decision will be likely by the end of the summer.
If you have questions about this case and how it might impact your business, or would like to discuss COVID-19 business interruption further, please reach out to Jim Sammon at firstname.lastname@example.org or 216.736.7235