Insurers Have Edge in Georgia COVID-19 Coverage Fights
Attorneys defending insurers in COVID-19 business-interruption coverage disputes have felt comfortable litigating in Georgia, attributing their many victories to what they call a deep bench of federal judges who understand insurance law and a supportive Eleventh Circuit.
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Lisa Campisi, a partner at Blank Rome LLP, said nearly all the Georgia decisions misread a Georgia appeals court's decision in Aflac Inc. v. Chubb & Sons Inc. to reach the conclusion that COVID-19 cannot physically impact a property. The case ruled that a computer coding flaw, Y2K, did not cause physical damage and that there needs to be a change in a property to make it unsatisfactory for future use.
But the coronavirus has caused that exact physical impact required in the appellate ruling, she said.
Coronavirus particles damage and alter the airspace of a property, but the issue was never addressed in front of the Eleventh Circuit, said Linda Kornfeld, vice chair of the insurance recovery group at Blank Rome. Kornfeld said her team has advanced the argument and their scientific experts are testifying that the virus "causes the airspace of the building to become unsatisfactory and repairs are necessary" in other federal courts.
"It's really the same thing as if your building was filled with carbon monoxide," she said. "COVID is just like carbon monoxide: It's odorless, tasteless and dangerous. But you can't see and touch it."
Whether the virus can simply be wiped off a property surface is "not something that a court can or should delve into at the motion to dismiss stage," Campisi said.
The federal judges don't know that coronavirus particles do not damage properties or fully understand the dangers of the virus because the judges are not scientists, Kornfeld said. But they never gave policyholders the opportunity to move to discovery as the traditional court process would allow, she said.
"The fact that most of these cases are getting resolved on motion to dismiss is very, very unique," Kornfeld said. "It's unfortunate because at the pleading stage, you shouldn't have to prove anything. But what you put in a complaint in a COVID case has morphed into something that you would normally put into a summary judgment motion."
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Only 40% of the 1,285 pandemic insurance suits filed in federal courts have been decided so far, according to Law360's COVID-19 case tracker. Policyholder lawyers have remained relatively unfazed by the growing list of pro-insurer decisions at the federal appellate level.
"We are in it for the long game," said Campisi and Kornfeld of Blank Rome. The attorneys have reached out to state insurance regulators to try to find what they call insurers' inconsistent coverage positions, seeking documents detailing what insurers said to regulators when they first drafted the policies.
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“Insurers Have Edge in Georgia COVID-19 Coverage Fights,” by Daphne Zhang was published in Law360 on November 19, 2021.