Category: Commercial Property

It’s Not Just About “Direct Physical Damage”

A primary focus of many COVID-19 business income insurance articles is whether or not there has been any “direct physical damage.” For most policy forms, that may be important when it comes to business income coverage for damage ON the described premises, but it may be far less important when it comes to coverage for business income loss due to orders of civil authority. Here’s why.

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Having Your COVID-19 Cake and Eating It Too

If a COVID-19 lawsuit asserts that a virus “contamination” constitutes direct physical loss that triggers coverage in a business income policy, doesn’t the plaintiff also have to recognize that a pollution exclusion in the policy for “contaminants” removes coverage? How can something be a contaminant in one part of the policy, but not in another?

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Is a Viral Contamination “Physical Damage”?

Many policyholder attorneys are hanging their hats on the premise that the mere existence of a virus on a surface constitutes direct physical property damage. But what really is “physical damage” to property? I believe it requires more than mere surface presence and that “physicality” and “permanence” are thresholds that must be met before coverage is triggered.

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