The Key to Winning COVID-19 Business Interruption Lawsuits?

I was interviewed last Friday and quoted this morning in Jim Sams' article for the Claims Journal, entitled "The Key to Winning COVID Business-Interruption Claims: Say the Virus is Present".

Sandwiched between two policyholder attorneys, I made some points and said some words on the subject of the developing and refined strategies of policyholder attorneys to keep their clients' COVID-19 business interruption lawsuits from being dismissed on pre-answer dispositive motions.  

I said when I posted that article to LinkedIn that I'm still trying to get my head around policyholder attorney Chip Merlin's "absurd" argument. 

Absurd for policyholder attorneys to allege presence of the virus, or for insurer's to require that policyholders prove it? Listen for yourself and please tell me if you understand Chip's argument.

Then be sure to read my comment to the Claims Journal article.  

What do you think?  Is alleging presence of the virus on property "the key"?  I know of some federal judges who don't think so. 

COVID-19 Business Interruption Analytics -- Metrics for Six Dozen Litigation Rulings (To Date)

 It was in mid-April that I got the call.  I was being drafted to a team of attorneys from over a dozen jurisdictions to defend one of my insurer clients in what was expected to be an incoming tsunami of COVID-19 business interruption lawsuits.  For a seasoned insurance coverage attorney like me, this was my most recent call-up to The Bigs.  The Show.  The reason I spent all those formative coverage attorney years parsing sentences and hunting for the elusive Oxford comma.   

Now seven months and three, fully briefed, pre-answer motions to dismiss (actually four--moved twice in one case) later, I could tell you everything you never wanted to know about the meaning of DPLOODT (direct physical loss of or damage to) property, "loss" and "damage", "of" and "to", and whether a virus is alive or dead or neither and why it might matter to a policyholder's business interruption claim.

But not in this post.  Instead, I'll skip to and share with you the "scorecard" of sorts I've developed for cataloging and tracking the 72 COVID-19 business interruption ("BI" to the cool, commercial property kids) court rulings to date:

Now, if you had been following me all along on LinkedIn, you would already have these metrics.  I've lost count how many times since April I've used the #businessinterrution and #covidBIlitigation hashtags on my LinkedIn posts (but you can count them if you want, in no particular and discernable order, by clicking here).  

I know you're wondering how I keep all these stats or metrics, right?  Easy (not really).  Thank Microsoft and the sortability (not a real word) of the excellent Excel spreadsheet.  Et voilà:

The image above clicks to its PDF source, but for the real spreadsheet geeks who know what insights custom sorting can reveal, I offer you the sortable Excel spreadsheet, itself.  All case rulings are clickable through to PDF documents residing in my Dropbox folder.  If you want updated versions of the rulings metrics and spreadsheet, follow me on LinkedIn and watch for my weekly postings.  

Please feel free to share the rulings metrics, sortable spreadsheet and Dropbox folder link with whomever might find them interesting and useful.  

And stay safe and well, everyone.  

*** COVID-19 BI LITIGATION RULINGS BY THE NUMBERS *** (through Oct. 29, 2020)

I have seen a "scorecard that, together with the cases that I and others on LinkedIn have reported, tallies the COVID-19 business interruption rulings to date as 35-13 in favor of insurers. 

>>  The FEDERAL/STATE COURT SPLT split is 33-15. 

>> The FEDERAL COURT SCORE is 29-4 for insurers. 3 of the 4 rulings favoring policyholders are from the same judge. 

>> The STATE COURT SCORE is 9-6 in favor of policyholders. 2 of the 6 rulings favoring insurers are from the same judge. 

>> Of the 13 TOTAL DECISIONS FAVORING POLICYHOLDERS, only 4 are from federal court and 9 are from state court. 3 of the 4 federal court ruling favoring policyholders are from the same judge. 

>> 28 DIFFERENT FEDERAL JUDGES have ruled on motions -- 26 in favor of insurers and 2 in favor of policyholders. 

>> 14 DIFFERENT STATE COURT JUDGES have ruled on motions – 5 in favor of insurers and 9 in favor of policyholders. 

>> The AVERAGE LENGTH of the STATE COURT rulings FAVORING POLICYHOLDERS is 1.88 pages. 

>> The AVERAGE LENGTH of ALL FEDERAL COURT rulings is 11.37 pages.

What's it all about, Alfie?