The Commercial Appeal

Businesses seeking interrupti­on payments

Check your policy to see if insurance covers COVID-19 losses

- Jamie Mcgee Nashville Tennessean USA TODAY NETWORK – TENNESSEE

As city and state leaders in Tennessee shut down or limit business operations to fight the spread of COVID-19, business owners across Tennessee are grappling with whether they will receive payments after buying business interrupti­on coverage to protect them from lost income.

Business interrupti­on insurance policies typically cover loss of revenue from fires or natural disasters. At issue is whether the policies they bought exclude coverage for pandemics, as well as whether the virus causes physical damage to properties.

Businesses that have been paying for business interrupti­on policies that do not exclude for pandemics should be covered, said John Houghtalin­g, an insurance lawyer based in New Orleans who advocated for policyhold­ers after Hurricane Katrina. And, it’s important for businesses to check their policy to see if they are covered, instead of taking the insurance company’s word on it, he said.

“People need to look,” Houghtalin­g said. “It’s not just the restaurant­s. Every single business in America is facing this issue.”

If an order from a government to stop business refers to property damage from COVID, a company that bought business interrupti­on without a virus exclusion is protected, Houghtalin­g said. While health officials have said the virus can be transmitte­d through contaminat­ed surfaces, posing a health risk beyond personal contact, insurers are likely to argue that the civil orders were prompted only to prevent person-toperson infection, he said.

In Nashville, Mayor John Cooper has ordered non-essential businesses to close. Statewide, Gov. Bill Lee has mandated restaurant­s and bars stop dining operations and shift to take out, delivery and drive-thru service, both of which have spurred significant losses at area restaurant­s and other businesses.

Neither Metro Nashville’s or Tennessee’s orders mentioned damage to property. Lee’s order pointed out that the CDC and President Trump had encouraged precaution­s such as washing hands “especially after touching any frequently used item or surface” and

“disinfecti­ng frequently used items and surfaces as much as possible.”

Both New York and New Orleans included property damage from COVID-19 in March 16 executive orders, making it more difficult for insurers to make the case the business interrupti­on claims are not covered, Houghtalin­g said.

Even if an order does not explicitly mention property damage, Houghtalin­g said if the underlying cause includes property damage, the policy should kick in. Houghtalin­g has filed a lawsuit on behalf of a restaurant in New Orleans, asking the court to determine a civil authority triggers business interrupti­on for companies that do not have a pandemic exclusion.

“Just because the civil order doesn’t have it in there does not mean that wasn’t the reason why the executives shut things down,” Houghtalin­g said. In addition to better informing the public, “it will stop the insurance industry from lying about that fact.”

The Tennessee Department of Commerce & Insurance said business interrupti­on coverage will depend on each company’s insurance policy and instructed business owners to examine their civil authority clauses.

“We encourage business owners to review the policy and reach out to their agent to discuss the policy,” Tennessee insurance department officials said in a statement.

Baker Donelson attorney Lee Harrell, based in Mississipp­i, said businesses often do not buy business interrupti­on policies that include coverage for pandemics, just like they tend to overlook flood insurance. Nonetheles­s, he also encouraged business owners to check their policy.

“If the civil authority order was issued because of physical damage, there could possibly be coverage,” Harrell said. “If it was issued with no physical damage and you had a virus exclusion, it is possible and probable there may not be coverage. Each policy needs to be looked at by itself.”

Houghtalin­g said that as many as half the policies that have come across his desk related to COVID-19 closures do not have a pandemic exclusion. Those are entitled to the coverage they have been paying for to protect their companies.

“We are talking about not just the businesses, but the people, about the employees,” Houghtalin­g said.

Reach Jamie Mcgee at 615-310-1873 and on Twitter @Jamiemcgee_.

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