| As the spread of COVID-19 gathers pace, there is increasing concern over not just the potential public health impact, but the financial consequences anticipated by businesses within all sectors. Containment measures implemented by public authorities will hopefully manage the spread of the disease effectively and minimise the physical impact on public health, but may themselves lead to substantial economic losses across the economy.
Most businesses will have comprehensive insurance programs in place, but where should policyholders look for coverage of anticipated losses associated with the spread of the Coronavirus?
The first in this two-part series looks at the two primary policies which may respond to economic losses caused directly or indirectly by the COVID-19 virus – Business Interruption and Event Cancellation.
BUSINESS INTERRUPTION
What might be covered?
Business Interruption cover for loss of profits and increased costs of working was traditionally attached to property insurance only, but can now be found in a variety of commercial policies. This will be a primary focus for businesses facing a reduction in income and increase in costs as they try to cope with containment measures in the first instance and, in the event of the escalation of a pandemic, potentially severe supply chain disruption and the mass absence of employees and customers.
What are the difficulties?
Coverage Trigger
The first challenge to establishing a BI claim is the trigger for coverage. In a property policy, BI cover will usually only be triggered where covered property damage has occurred. That is unlikely to be relevant in the present circumstances, so policyholders will need to examine any extensions available, or the existence of standalone contingent BI cover. In some cases, express Infectious Disease cover may be provided. If not, other extensions, for example suppliers and customers, denial of access and loss of attraction covers may all be relevant, but the availability of cover will be entirely dependent on an analysis of the factual cause of the loss in the context of the specific wording.
Those policyholders with an express Infectious Disease cover or extension might appear to be well-protected, but the scope of cover tends to be very tightly drafted and may not extend to novel pathogens such as the coronavirus.
Notifiable Diseases
Some policies provide cover for losses caused by any ‘notifiable’ disease, which may give rise to difficulties in the case of a novel disease that does not become notifiable until some way in to the period of loss. A decision of the Hong Kong Court of Appeal in the aftermath of the SARS pandemic established that such a clause had the result of reducing the amount of loss covered in two ways. First, losses suffered before the date on which the disease became notifiable were not covered. The decision of a competent authority to make the disease notifiable did not act retrospectively. Secondly, the starting point for establishing the amount of profit lost was the period after the advent of the disease, but before the disease became notifiable, not the period before the first incidence of the disease. To the extent that the business’s profitability has already suffered before the disease becomes notifiable, this will therefore affect the amount the business is able to claim as loss of profit going forward.
COVID-19 became notifiable in Scotland on 22 February 2020, and in Northern Ireland on 29 February 2020, whilst in England the authorities only took the decision to make it notifiable on 5 March 2020. The wording of any policy will therefore need to be checked carefully to establish which date acts as an effective trigger for BI cover. If multiple triggers apply, calculating the amount of covered loss will be complex and no doubt contentious, given the staggered approach in different regions of the country.
Excluded Diseases
Even where broad coverage for notifiable diseases is provided, policies frequently include an express list of excluded diseases. Whilst this is unlikely to include any reference to Coronavirus or COVID-19 specifically (unless issued very recently), it may include catch-all language such as ‘or any mutant variant thereof.’ We have already seen some suggestion that losses from COVID-19 are excluded as a mutant variant of ‘SARS or atypical pneumonia’ (which was itself a form of coronavirus) and the medical definition or categorization of the disease will no doubt give rise to disputes over coverage.
Specified Diseases
Conversely, some policies provide cover for a specified list of infectious diseases, rather than any notifiable disease. Such policies are unlikely to provide coverage from Coronavirus losses, unless it can be established, as a matter of scientific or medical fact, that the COVID-19 virus does fall within the list of defined diseases where ‘variant’ language is used, as in the case of excluded diseases.
Causation
Even where cover for BI losses is established, there will inevitably then be disputes over causation and measurement of loss. Where a business elects to implement or follow certain measures for the protection of its employees or customers, the position will be different from that where it is following mandatory orders from a public authority. Even where a business is forced to close or scale down its operations, there will be arguments over to what extent the losses are caused by the immediate effects on the business, rather than the effects on the wider marketplace and the absence of customers.
We can therefore anticipate ‘wide area damage’ type arguments being raised by insurers, relying on the principle in the Orient Express case, where a hotel in New Orleans was prevented from recovering its lost profits following Hurricane Katrina, on the basis that damage to the wider area meant that even if the hotel had been able to continue operating, it would have had no custom anyway.
The insuring clause, formula and any trends clause will need to be examined very carefully in order to understand whether such principles have any application to a claim for BI losses in the aftermath of a COVID-19 outbreak.
EVENT CANCELLATION
What might be covered?
Where business interruption cover is unavailable, or inadequate to meet losses suffered, policyholders in certain industries may be able to turn to event cancellation policies to protect them for some of the same losses. These policies cover losses caused directly by the cancellation of a specific event as a result of one of a list of specified perils (or alternatively by any cause not expressly excluded), and where triggered are intended to compensate the business for its lost profits and increased costs as the result of the cancellation.
Event cancellation policies provide coverage for a wide variety of losses suffered by the organiser of the event following cancellation. Cover is not provided for the losses of attendees of cancelled events, who will need to rely on the terms and conditions of the relevant ticketing, travel and accommodation providers, as well as any applicable statutory provisions, to recover their lost costs as a result of the cancellation.
What are the difficulties?
Trigger
The terms of cover provided in event cancellation policies are highly bespoke and there is no standard approach. Some event cancellation policies may simply not provide – or may exclude – cover for cancellation caused by infectious disease. For those that do, the cover may only extend to an outbreak on the insured premises or within a specified radius, and may exclude pandemic circumstances. The reverse can also be true, in that an exclusion may only preclude cover of cancellations due to local outbreaks. As ever, the policy wording is determinative.
Mandatory or voluntary cancellation
The decision to cancel an event is not taken lightly. Even so, insurers may argue that cancellation of an event was not ‘necessary’ or ‘unavoidable’ (depending on the specific policy wording in question) in the absence of any direction or recommendation from a competent authority. Similarly, coverage is unlikely to be provided if a decision is taken to cancel simply because of low ticket sales caused by COVID-19 concerns.
Infectious diseases – excluded, specified, or notifiable.
The comments above in relation to business interruption losses apply equally to event cancellation cover, which may contain broadly equivalent definitions and trigger provisions. The notifiable date of the disease becomes even more critical in the context of event cancellation cover, since any event cancelled before the disease became notifiable will simply be uncovered. The divergent dates on which COVID-19 became a notifiable disease in Scotland, Northern Ireland and England may therefore become particularly relevant to claims in this area.
COMMENT
It can be seen that whilst most businesses face potentially significant, but as yet unknown financial losses flowing from the impacts of the spread of COVID-19, the availability of insurance coverage for such losses is far from certain and likely to be contested. Public comments by insurers indicating that they consider their aggregate exposure to be low, and that most losses will be excluded, confirm this to be case.
Business Interruption and Event Cancellation insurance may not respond at all, or may not be adequate to meet the actual losses suffered by the business. Part 2 of this series will therefore examine potential coverage for specific losses which may be available under a wide range of other existing policies.
Aaron Le Marquer – Email: Aaron.LeMarquer@FenchurchLaw.co.uk
Fenchurch Law
17 March 2020
Also at this link: Jonathan Corman Fenchurch Law PNLA Specialist |
