Taking It To The Courts

The ongoing debate over business interruption coverage is not likely to be quelled anytime soon. It already has moved into the legal arena with the recent filing of multiple lawsuits by restaurateurs in Chicago, New Orleans and Napa Valley. In a preemptive move last month, New Orleans attorney John Houghtaling filed a lawsuit on behalf of acclaimed restaurateur Thomas Keller of French Laundry fame, hoping to secure a ruling declaring that when a governmental entity shuts down businesses because of a "dangerous property condition in the area," that triggers coverage.

He filed the suit when he began hearing that Keller's insurance carrier, The Hartford, was denying business interruption claims throughout California.

Houghtaling rejects the insurance industry's stance that the government orders to effectively shutter businesses had nothing to do with concerns about property damage to businesses. He points to the verbiage of various orders, including San Francisco's, where it states that its emergency declaration was issued because the virus is "physically causing property loss or damage due to its proclivity to attach to surfaces for prolonged periods of time."

Said Houghtaling, "The insurance companies don't want to talk about the danger coronavirus poses to property because then they would owe for the entire time the businesses are shut down. They're crying, poor us, don't let us go bankrupt, we only have $822 billion in cash. You've got to be kidding. If you hold that money any longer and the economy collapses, that's $1 trillion to the economy each year for just restaurants."

Sampson, of the industry trade group, in turn, accused the lawyers who are going after insurance companies of orchestrating creative strategies for making their case, including working closely with local governments to "lay a predicate in their orders that would expand coverage that is not covered in the standard business interruption policy."

While the industry says it's unwilling to alter its stance on coverage, the country's four major insurance associations last week sent a letter to California's congressional delegation affirming their support of what they're calling a COVID-19 Business and Employee Continuity and Recovery Fund that would be backed by the federal government and could potentially be part of a subsequent stimulus package.

"When the unexpected happens, you count on insurance," said Joanne Mera, who has owned her business for 30 years. "If not now, for God's sake when will you need your insurance policy to help you. I feel like I'm in a rowboat during a tsunami, praying that when (not if) I capsize and get shredded, I can hold onto whatever is left of my little boat and live. I'm too concerned right now with keeping my business afloat to read a million-page insurance document, but this was not our fault. It's a natural disaster so at what point will the government step in and say someone has to help with this?"