As editorial board members of the ABA’s Tort Trial and Insurance Practice Section’s The Brief, Goldberg Segalla’s partner Peter J. Biging and Hurwitz & Fine partner Agnes Wilewicz brought together a group of insurance coverage attorneys representing policyholders and insurers to discuss business income loss arising from the COVID-19 pandemic.
As moderators, Peter and Agnes interviewed several attorneys, including Goldberg Segalla’s Larry D. Mason, about types of claims that have been brought and some of the early judicial rulings on the issues. They also discussed the potential applicability of COVID-19 virus exclusions.
In the interview, Larry, a leader in Goldberg Segalla’s Global Insurance Services group based in Chicago, answered a wide range of questions about the type of claims being made, arguments insurers have been relying on to deny coverage, the history of virus exclusions, and more.
“Policyholders are also outright challenging the interpretation of the term ‘direct physical loss or damage,’ arguing that the presence of COVID-19 in a building is suﬃciently akin to other cases where courts have found the presence of certain conditions renders the insured premises uninhabitable,” Larry said. “Policyholders argue that their inability to use the insured premises due to the COVID-19 pandemic constitutes ‘physical loss.’ We are also seeing arguments that the grant of coverage—‘physical loss of or damage to’—is ambiguous. Insureds, as some of us have discussed, are challenging the virus exclusion as well. Insureds sometimes argue that the virus exclusion only applies if the virus is actually present in or on the insured property.”
“COVID-19 Business Interruption Claims: A Discussion with Insurance Coverage Practitioners,” The Brief, June 2, 2021
Peter J. Biging is an accomplished trial and appellate attorney with more than 30 years of experience as a litigator in the state and federal courts of New York. As co-chair of the Management and Professional Liability group, Peter counsels and defends directors and officers against claims alleging fraud, negligence, and breach of fiduciary duties, and a variety of professionals against claims based on alleged errors and omissions (E&O) in the performance of their professional services. He also regularly litigates labor and employment practices liability claims, commercial disputes, and municipal liability claims premised on alleged civil and constitutional violations.
Larry D. Mason is a renowned trial and appellate litigator and counselor to many national and international businesses across diverse industries. Based in Chicago but with experience litigating and counseling clients through complicated and high-profile matters across the country and internationally, he dedicates most of his practice to insurance coverage, reinsurance, commercial litigation, environmental and toxic torts, and complex insurance regulatory matters. He also focuses on professional liability for clients in construction, environmental, and related industries; products liability; and identifying emerging risks.