Big Win for Restaurant Policyholders in COVID-19 Litigation in North Carolina


CLE credits earned: 1 General Credit (WA 1 Law and Legal)

The COVID-19 pandemic has dramatically impacted operations of “non-essential businesses,” such as restaurants and retail establishments, over the past 9 months, placing the continued existence of many businesses in jeopardy. This program will discuss the potential for insurance recovery for business-interruption losses caused by COVID-19 and the resulting civil authority orders under commercial property policies. Specifically, this program will update you on the current state of the law and discuss the impact of recent court rulings. As background, we will identify the typical insuring language in property policies for business income and extra expense losses, civil authority coverage, and additional communicable-disease type coverage that may be available; and how policyholders can trigger coverage under those insuring agreements. We will then delve into the arguments policyholders are making in favor of coverage and the common defenses raised by insurance companies, including the lack of “direct physical loss of or damage to property” argument and the virus exclusion. We will analyze recent court decisions, often dependent on the applicable state law and the black-letter law of policy interpretation typically favorable to policyholders, and the trends in the law. Finally, we will list specific and practical steps policyholders should take to preserve and maximize coverage for their COVID-19 losses.


Key topics to be discussed:

• The key policy language for coverage for business losses from COVID-19 and resulting state closure orders in commercial property policies.
• Contract interpretation principles favoring coverage and ambiguous policy provisions.
• Court trends on coverage rulings to date – with a focus on pro-policyholder decisions.
• Practical steps for preserving and maximizing coverage for business interruption losses.

Date / Time: December 29, 2020

•   3:00 pm – 4:00 pm Eastern
•   2:00 pm – 3:00 pm Central
•   1:00 pm – 2:00 pm Mountain
•   12:00 pm – 1:00 pm Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 5 Business days after the original recording date and are view-able for up to one year.

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Original Broadcast Date: December 2, 2020

Katherine Henry | Bradley

Katherine is the Chair of the Policyholder Insurance Coverage team. Katherine’s practice focuses on meeting clients’ business objectives in matters involving insurance. She regularly advises Fortune 10 and other companies on complex insurance programs involving manuscript and specialty policies, including programs with multi-national coverage towers of $500 million to $1 billion, and programs incorporating various risk transfer and financing mechanisms, such as fronting programs, paid deductible programs, and collateral agreements. Her practice spans all aspects of policyholder insurance coverage, from initial policy placement and renewals to claims management and litigation, both in the United States and abroad. Her past and present policyholder clients include two of the world’s largest automakers, the world’s largest home improvement specialty retailer, an auto insurance company, a vacuum cleaner manufacturer, a quasi-governmental defined benefit plan, numerous healthcare-related entities, a private-equity investment firm, various banks and financial institutions, and a national trade association for the gases and welding industry.

Katherine has handled insurance matters involving virtually every type of property and casualty insurance policy available in the market today, including agricultural and crop insurance, commercial auto (including UM, UIM, and PIP), commercial general liability, crime, cyber, directors and officers and entity liability (for both public and private companies), errors and omissions and professional liability (including Owners Protective Professional Indemnity (OPPI)), employment practices liability, fidelity bonds, fiduciary liability, flood, inland marine, pollution and environmental, products liability, property (including BI and CBI), title insurance, workers’ compensation, and wrap‑up insurance programs (OCIPs and CCIPs). Disputed matters include civil litigation in state and federal courts at all levels (including bankruptcy courts) arbitration, mediation, and regulatory proceedings before state insurance commissioners.

In addition to disputed matters, Katherine advises clients on insurance procurement and renewal, including terms and conditions for standard-form and manuscript insurance policies of all types. She also advises clients on claims submission and management, prospects for obtaining coverage of a disputed claim, transactional due diligence, recovering proceeds from insolvent insurers, and locating historic insurance policies.

Katherine also provides clients with strategic advice and solutions for complex legal disputes outside of the insurance coverage arena. Her experience includes formulating a litigation and negotiation strategy that led to the industry-wide settlement of claims brought by the entire payphone industry as well as crafting a nationwide insurance coverage strategy for welding distributors.
Katherine is an effective appellate advocate and has appeared before numerous federal and state appellate courts, including en banc panels, on a wide variety of matters.
Christine S. Davis | Bradley

Christine Davis represents corporate policyholders in coverage disputes involving various types of commercial insurance policies, including comprehensive general liability, directors and officers, errors and omissions, and products liability policies. She has almost 20 years of experience representing policyholders in all stages of insurance coverage disputes, including negotiations, mediation, arbitration and litigation through trial and appeal. She also advises clients on their insurance placement programs.

Prior to joining Bradley, Christine practiced in the litigation group of several national law firms, with a focus on insurance recovery work. Christine was also an attorney in the claims department of a prominent insurance company where she supervised the handling of catastrophic personal injury and umbrella claims, provided liability and coverage analysis, and oversaw the handling of civil RICO and common law fraud actions against medical providers.
After law school, Christine served as a law clerk to the Hon. Ann O’Regan Keary, an associate judge on the Superior Court of the District of Columbia.

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Coverage for Business Interruption Losses Stemming from COVID-19: The Impact of Recent Key Rulings
• Potential Coverages and Elements for Each 3:00-3:10
1. Communicable Disease-Types of Coverage
2. Business Income and Extra Expense Coverage
3. Civil Authority Coverage

• Policyholder Arguments for Each Type of Coverage 3:10-3:20

• Insurance Company Defenses to Each Type of Coverage

• Black Letter Law on Contract Interpretation Favors Policyholders, including 3:20-3:30
o Ambiguous Provisions – in Favor of Coverage
o Reasonable Expectations Doctrine
o Superfluous Language

• Recent Trends in Case Law: Pro-Policyholder Rulings versus Pro-Insurer Holdings 3:30-3:40

• Steps to Your Protect Business Interruption Coverage 3:40-4:00