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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

...a pollution exclusion still does not apply, reasoning that the pandemic is not “traditional” environmental pollution.

 

Two courts have recently reached this conclusion: the first finding a pollution exclusion would not apply, and the second finding a pollution liability policy is not implicated.  

 

Ultimately, whether COVID-19 claims trigger pollution exclusions of CGL policies---or, conversely, are deemed within the scope of a pollution liability policy’s insuring agreement---is likely to hinge upon a jurisdiction-by-jurisdiction analysis of the specific policy language being used.

 

Other coverage issues are also likely to arise in at least some instances. For example, an employee’s claim against an insured employer could require evaluation of whether it triggers the employer’s liability exclusion, which typically precludes coverage for bodily injury to an employee of the insured if the injury arises out of and in the course of employment by the insured or performance of duties related to the conduct of the insured’s business. 

 

The exclusion typically also applies to bodily injury to a spouse, child, parent, brother or sister of the employee if such bodily injury is a consequence of the bodily injury to the employee. Although the language is typically irrelevant, because the virus is highly contagious, it could prove important here.

 

Other exclusions that could conceivably have relevance are fungi and bacteria-type exclusions, typically included in an endorsement, and virus exclusions, perhaps more frequently found in property policies.

 

Of course, these are just a few of the potential coverage issues that could arise under CGL policies that are called upon to respond to these claims or suits.

 

In addition, as suggested above, parties might seek coverage under other kinds of liability policies, including pollution liability and workers compensation/employers liability policies. 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.

 

Jonathan T. Viner (jviner@nicolaidesllp.com) is a partner at Nicolaides Fink Thorpe Michaelides Sullivan LLP, where he focuses his practice on counseling and risk management. He has 25 years of experience serving a domestic and international client base that has come to rely on him for his veteran perspectives and sharp insight into novel and complex insurance coverage issues. 

 

Amy J. Cassidy (acassidy@nicolaidesllp.com) is a partner at Nicolaides Fink Thorpe Michaelides Sullivan LLP, where she focuses her practice on insurance coverage litigation. With more than 19 years experience, Amy is a passionate advocate for her clients with a proven track record of favorable settlements, summary judgments and trial and appellate victories.

 

We thank PropertyCausalty360 for reprint permission.

 

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