Will Your Business Interruption Insurance Cover Your COVID-19 Losses?

As businesses continue to shut down across Louisiana and the nation in response to city and state “stay at home” orders, business owners are worried about whether this public health disaster is covered under their business interruption insurance protection plans.  If they listen to their insurance agents or the many media articles on the topic, they probably think they are out of luck.  However, business owners have nothing to lose by filing a claim to test the waters, and if that claim is denied they always have the option to file a lawsuit to enforce their insurance plan

Whether your claim is covered or not is likely dependent on the type of policy and the specific language in it. If you have a business that has been affected by closures, check your business policies to see what losses may be covered.  Even if your insurance policy contains a specific exclusion related to viruses or pandemics, there are several angles to possibly overcome the exclusions.

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While our building at Canal Place in New Orleans has closed to the public, it remains open to essential staff members of certain tenants including our office.  Thus, we remain open to serve your needs during these strange times of global pandemic.  Please do not attempt to come see us though.  Your safety and health is very important to us, as is the well being of our support team. 

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While many courts across the state and nation continue to close their doors and postpone trials and hearings to later dates, the three Bankruptcy Courts in Louisiana have thankfully remained functioning to some degree.  Bankruptcy filings remain electronic as always, but the requirement to submit original signatures in some instances is temporarily suspended.  Each of the courts are closed to the public but have implemented measures to conduct hearings via telephone and/or video during this time of public health crisis related to the novel coronavirus, COVID-19:

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The Social Security Administration (SSA) announced last night that effective today, all field and hearing offices are closed to the public due to the ongoing public health crisis related to the novel coronavirus, COVID-19.  If you are already awarded benefits, this will not affect your ongoing payments.  If you have a hearing scheduled, however, you can expect a call soon to request that you either agree to moving forward via telephonic hearing or to continue the matter to a later date.  While SSA will remain open to conducting business online and on a limited basis via telephone, it is not yet clear at what capacity they will be processing information.  

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The Social Security Administration and the Administrative Law Judges (ALJ) that decide cases at the hearing level frequently use a grid of the Medical-Vocational Rules to determine if a claimant is disabled or not.  If the “grid rules” indicate a finding of disabled, then it is referred to as “gridding out” and the analysis essentially stops in the claimant’s favor.  On the other hand, if the grids indicate a finding of not-disabled, it is still possible that you can be found disabled if your functional capacity is further eroded by other limitations and restrictions that prevent you from working.  It is noteworthy to point out that the grid rules are primarily a Step 5 tool.  For instance, if DDS or the ALJ find you are capable of light-duty work, but if your past relevant work (PRW) includes light-duty work then you will be denied at Step 4 of the analysis regardless whether the grid rules would otherwise dictate a finding of disabled.

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Louisiana is a “direct action” state, meaning a plaintiff may name an insurer in a lawsuit.  In most other states, if you bring a personal injury lawsuit, you cannot name the insurance carrier in that lawsuit.  Louisiana on the other hand was one of the first to enact a direct action statute.  It expresses Louisiana’s long public policy that “an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public.” Davies v. Consolidated Underwriters, (La. 1942).

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comparative fault

Who’s at Fault and How Much?

The term “comparative fault” refers to a system of apportioning damages between negligent parties based on their proportionate shares of fault.  Under a comparative fault system, a plaintiff’s negligence will not completely bar recovery like states that employ the harsh contributory negligence rule, but it will reduce the amount of damages the plaintiff can recover based on the plaintiff’s percentage of fault. The “pure comparative fault rule” allows a damaged party to recover even if it is 99% at fault, although the recovery is reduced by the damaged party’s degree of fault.  

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