This Week At The Ninth: Insurance Coverage For COVID And In-Person Informed Consent For Abortion

• Jurisdiction: United States,Federal
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Insurance, Coronavirus (COVID-19), Insurance Laws and Products, Insurance Claims
• Author: Joel F. Wacks
• Published date: 08 August 2023

This week, the Court considers insurance coverage for business losses sustained as a result of COVID-19 and the constitutionality of Guam's in-person informed consent requirement for abortion.

THE OREGON CLINIC, PC V. FIREMAN'S FUND INSURANCE CO.

The Court affirms dismissal of Oregon Clinic's claims that Fireman's Fund improperly denied insurance coverage for business losses sustained as a result of the COVID-19 pandemic.

The panel: Chief Judge Murguia and Judges Forest and Sung, with Chief Judge Murguia writing the opinion.

Key highlight: "The Parties dispute whether Oregon Clinic adequately alleged a 'direct physical loss or damage' to property under the Policy, and they offer competing interpretations of that phrase. Fireman's Fund contends that '[t]o establish direct physical loss or damage to property, an insured must have suffered a distinct, demonstrable physical alteration to property that requires repair or replacement.' Oregon Clinic, on the other hand, argues 'loss' and 'damage' mean different things, and that 'loss' can mean 'the impairment and loss of the functional use of insured property for its intended purpose (as medical clinics) due to the Coronavirus and/or the governmental orders.' In other words, Oregon Clinic argues that it need not allege 'physical alteration to property' to adequately allege a 'direct physical loss or damage' to property under the Policy. A plain reading of the Policy as a whole, Oregon caselaw, and a plethora of state and federal appellate decisions in COVID-19 insurance cases, including our decision in Mudpie, support Fireman's Fund's position."

Background: Plaintiff Oregon Clinic held a commercial property insurance policy purchased from defendant Fireman's Fund. In March 2020, Oregon Clinic sought coverage under the policy for business losses sustained as a result of the COVID-19 pandemic and ensuing governmental orders. Fireman's Fund denied coverage because it concluded that Oregon Clinic's losses were not the result of "direct physical loss or damage" to its properties, as required by the policy.

Oregon Clinic sued, seeking a declaratory judgment of coverage and asserting assorted Oregon state law claims. The district court dismissed Oregon Clinic's complaint with prejudice. The Ninth Circuit granted Oregon Clinic's request to certify questions to the Oregon Supreme Court regarding the meaning of the phrase "direct physical loss or damage." The Oregon Supreme Court declined the Ninth Circuit's request.

Resu...