In one of a series of closely watched cases concerning the extent of insurance coverage available to businesses who have suffered damages as a result of the COVID-19 crisis, a federal district court recently ruled in favor of a group of restaurants that were ordered closed by government authorities.
The U.S. District Court for the Northern District of Ohio ruled in favor of the policyholders on cross-motions for summary judgment in Henderson Road Restaurant Systems, Inc., dba Hyde Park Grille, et al. v. Zurich American Ins. Co., No. 1:20 CV 1239, 2021 WL 168422 (N.D. Ohio Jan. 19, 2021). In the Henderson case, the court ruled that business interruption coverage was available to the restaurant group under a policy issued by Zurich American Insurance Company (“Zurich”).
The property policy at issue provided coverage for suspension of operations caused by order of civil authority or a government order that prohibited access to the covered premises. The policy required that the suspension result from “direct physical loss of or damage to” property located within one mile from the covered premises.
The parties disagreed as to whether such “direct physical loss of” or “damage to” the policyholders’ restaurants occurred under the circumstances. Ultimately, the court sided with the policyholders about the meaning of the phrase “direct physical loss of” the real property, construing what it found to be ambiguities in the language in the policyholders’ favor.
The policyholders argued that they “lost their real property” when state shutdown orders were issued that prevented the properties from being used for their intended purposes as dine-in restaurants. Since the policy language was susceptible to this interpretation, and ambiguities are strictly construed against the insurer in Ohio, the court ruled that Zurich was obligated to provide business income coverage since the policy language could be interpreted in the policyholders’ favor.
The court rejected Zurich’s argument that coverage shouldn’t be available because the restaurants could still conduct carry-out business, finding it unreasonable to expect that the restaurants, which previously relied almost exclusively on in-person dining, should be expected to shift their businesses to a carry-out model. The court also rejected Zurich’s assertion that the policy required a permanent loss.
Zurich next argued the applicability of two exclusions to coverage. First, Zurich argued that a microorganism exclusion precluded coverage. However, the court rejected the microorganism exclusion’s application, finding there was no coronavirus at the restaurants themselves and that “it was clearly the government’s orders that caused the closures,” not the coronavirus. Moreover, the court noted that the parties had stipulated that “none of Plaintiffs’ Insured Premises were closed as a result of the known or confirmed presence of SARS-CoV-2 or COVID-19 at any of the Insured Premises.”
Zurich also argued that the policy’s loss-of-use exclusion should exclude coverage. The court rejected this argument, as well, ruling that “the Loss of Use exclusion would vitiate the Loss of Business Income coverage.”
We will continue to monitor and provide updates on other court decisions happening across the country on the extent of insurance coverage for losses related to COVID-19. If you have any questions about these issues, please contact Thad Morgan, Fraser Trebilcock’s Litigation Department Chair.
Thaddeus E. Morgan is a shareholder with Fraser Trebilcock and formerly served as President of the firm. Thad is the firm’s Litigation Department Chair and serves as the firm’s State Capital Group voting representative. He can be reached at tmorgan@fraserlawfirm.com or (517) 377-0877.
Edward J. Castellani is an attorney and CPA who represents clients involved with alcohol beverages as a manufacturer, wholesaler, or retailer. He leads the firm’s Business & Tax practice group, and may be contacted at ecast@fraserlawfirm.com or 517-377-0845.
