In an interview with Law360, Goldberg Segalla’s Jonathan L. Schwartz provided his viewpoint on an Ohio appeals court ruling in a ransomware case that appears to contradict hundreds of COVID-19 coverage decisions.
On November 29, 2021, a three-judge panel of Ohio’s Second Appellate District found that medical billing company Electronic Medical Office Integration (EMOI) had potentially experienced property damage that could be covered under its property insurance policy after hackers encrypted its software.
Jonathan, chair of the firm’s Cyber Risk Coverage practice, said the Ohio court viewed “direct physical loss” in a way that ignores “virtually every” COVID-19 coverage ruling.
In COVID-19 claims cases, courts have repeatedly ruled that a company’s temporary loss of access caused by government closure orders is not considered property damage, and that a property has to be tangibly changed to be covered.
“The suggestion that the policy needs to say the word ‘tangible’ in connection with physical damage is not really coming to grips with the existing body of [COVID-19] case law in Ohio and elsewhere,” Jonathan said. “Courts have rejected the notion that there can be intangible loss of use.”
“Ohio Ransomware Ruling Heightens ‘Silent Cyber’ Worries,” Law360, November 29, 2021
Jonathan L. Schwartz is the chair of the firm’s Cyber Risk Coverage practice. His practice extends to insurance coverage litigation and counseling across many product lines, including primary and excess commercial general liability, professional liability, errors and omissions (E&O), directors and officers (D&O) liability, municipal and law enforcement liability, commercial property, business auto and cargo liability, employer’s liability, and employment practices liability insurance policies. A mainstay of Jonathan’s practice is extracontractual actions against insurers, and with a nationwide focus, his clients include myriad property and casualty insurers from coast to coast.