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Tuesday, 05 January 2021 09:46

New Year, New Claims: Preparing for Surge in COVID-19 Liability Litigation

Written by Jonathan T. Viner and Amy J. Cassidy, PropertyCasualty360
As potential injury litigation over COVID-19 exposure ramps up, it will be critical to watch the creative arguments presented by each side, and how courts resolve these issues. As potential injury litigation over COVID-19 exposure ramps up, it will be critical to watch the creative arguments presented by each side, and how courts resolve these issues. Shutterstock

Index

...there is bodily injury, typically defined in relevant part as bodily injury, sickness or disease.

 

However, an interesting issue is presented by putative class actions or mass tort claims by individuals who were supposedly exposed to the virus at a particular place or time, who all seek compensation for the fear they experienced about contracting the virus and/or a fund that would pay for COVID-19 testing and treatment if needed.

 

Given the uncertainty as to precisely how and where the virus spreads, as well as possible variation among how much exposure is required to cause illness in different people, insureds will not necessarily face enormous difficulty in establishing that injury was caused by an occurrence, especially when it comes to showing the potential for coverage often required to trigger an insurer’s duty to defend.

 

Nevertheless, it is not a given that the injury was caused by an occurrence, typically defined to mean an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Rather, depending upon the liability theories asserted and the evidence generated, it might be argued that an insured’s failure to take certain precautions rendered it sufficiently likely that others would fall ill that the resulting bodily injury was not caused by an occurrence.

 

A significant issue that will be presented in almost every COVID-19 liability claim, though, is whether the claim triggers a CGL policy’s so-called pollution exclusion---or, in some instances, whether the claim is within the scope of the insuring agreement of a party’s pollution liability policy.

 

Determining the answer requires analyzing whether the COVID-19 virus is a pollutant. "Pollutant" is often defined as a solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste, or something similar. 

 

As of this writing, only a few courts have addressed the issue. However, most of those have concluded that absent express language to the contrary, viruses are irritants or contaminants. 

 

Of note,  more courts have addressed the issue---arguably similar---as to whether bacteria can be considered a pollutant. Those courts reached diverging opinions.

 

But even if a court determines the virus is a pollutant, or is considering a definition that explicitly includes viruses, some courts may determine...