Insurers' COVID-19 Notepad: What You Need To Know Now - Week Of December 12, 2022

• Published date: 16 December 2022
• Subject Matter: Insurance, Coronavirus (COVID-19), Insurance Laws and Products, Insurance Claims
• Law Firm: Crowell & Moring
• Author: Ms Laura Foggan, Adam J. Singer, Rachel A. Jankowski and Samuel H. Ruddy

Ohio Embraces "Clear Trend" and Sides with Insurers in COVID-19 Business Interruption Case

Yesterday, in Neuro-Communication Services, Inc. v. Cincinnati Insurance Co., the Ohio Supreme Court embraced the "clear trend in the law in other jurisdictions" and held that "direct physical loss or damage to property does not arise from (1) the general presence of COVID in the community, (2) the presence of COVID on surfaces at a premises, or (3) the presence on a premises of a person infected with COVID." Order ' 26, 29.

The Court said the term "direct 'loss'" requires there be some "loss or damage to Covered Property that is physical in nature," and any potential exception to this rule for situations in which there was no physical alteration to the property does not apply here. Id. ' 17, 25. The term "direct 'loss'" does not include the policyholder's COVID-related loss of the use of its offices for business purposes. Id.

An audiology practice sued its insurers for business interruption and income losses it suffered during the COVID-19 pandemic, seeking property coverage. The Ohio Supreme Court accepted a certified question from the U.S. District Court for the Northern District of Ohio:

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?

Noting first that "direct 'loss'" and "loss" are defined as "accidental physical loss or accidental physical damage," the Court said the "language is clear and unambiguous" that none of the three factual scenarios in the certified question fall within the policy language. Id. ' 14. For the policyholder to resume its business activities, its property did not need to be "repaired, rebuilt or replaced," the Court noted. Id. ' 19. Instead, it required that the government lift the shutdown orders. Id. (citing Santo's Italian Café, LLC v. Acuity Ins. Co., 15 F.4th 398, 403 (6th Cir. 2021)).

The Court said that pre-pandemic cases the policyholder cited to support its argument that physical alteration to the property was not required, including...