SDV Insights

Saxe Doernberger & Vita's ("SDV") Natural Disaster Recovery Group presents the Hurricane Season Policyholder's Handbook.

Amid the current movement for racial justice, a new trend has emerged in the world of Directors and Officers insurance. A recent wave of lawsuits that are expected to trigger D&O policies has been brought against major corporations in the U.S., with a message reflective of the movement: that racial diversity belongs in the boardroom.

In Optical Services USA/JCI v. Franklin Mut. Ins. Co.,1 the New Jersey Superior Court denied the insurer's motion to dismiss the policyholders' COVID-19 coverage suit. The Plaintiffs in this case were optometrists' offices forced to close by New Jersey Governor Phil Murphy's Executive Order No. 107, which temporarily shut down non-essential businesses to help slow the spread of COVID-19 in New Jersey.

Shutdowns resulting from the COVID-19 pandemic have prompted an unprecedented number of business income and business interruption insurance claims. Many claims have resulted in litigation and require judicial intervention to determine whether private insurance carriers owe policyholders indemnification for pandemic related losses.

The Hartford's so-called virus exclusion in its commercial property forms is getting a workout, and policyholders now have an argument that may help their cases move past the pleadings stage. A U.S. District Court in Florida has deemed the exclusion ambiguous and denied an insurer's motion to dismiss.

Recently, federal courts in California and Florida dismissed claims brought by restauranteurs against their insurance companies after the insurers denied business-interruption coverage for losses related to COVID-19 quarantine orders. In both cases, the courts held that the policyholders had not sufficiently alleged that their properties had suffered "direct physical loss or damage," as required by both policies to trigger coverage.

In the case of Port Consolidated, Inc. v. Int'l Ins. Co. of Hannover, PLC, the Eleventh Circuit Court of Appeals recently held that an insurance claim involving repeated thefts of fuel from a singular scheme constituted multiple "occurrences" under the insurance policy at issue. Moreover, because none of the thefts exceeded the policy's per occurrence deductible, the Court found that the insurer properly denied coverage.

On September 15, 2020, in a matter entitled The Financial Conduct Authority v. Arch & Others1, the High Court of Justice of England and Wales, the equivalent of a trial court in the U.S., issued a ruling on a COVID-19 business interruption insurance case (the "Judgment"). Significantly, the Court sided with policyholders on most key coverage issues under specific non-damage business interruption insurance coverage forms

The Seventh Circuit Court of Appeals recently held that a subcontractor's insurer was obligated to defend and indemnify the project owner's insurer for damages associated with the subcontractor's employee's personal injury lawsuit where the underlying complaint alleged negligence by the additional insureds. The case cements the notion that under Illinois law, one can significantly benefit from the facts presented in third party complaints as a basis for additional insured coverage.

Although the Construction SuperConference has been canceled this year, Michael V. Pepe was recently featured in their construction monthly reader. Check out "Ten Clauses You Need in Your Insurance Exhibit," as he addresses insurance terms that are vital to construction contracts and subcontracts.