Ernesto Palomo

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In 1990, the Second Circuit in Bellefonte Reinsurance Co. v. Aetna Casualty & Surety Co., 903 F.2d ‎‎910 (2d Cir. 1990), affirmed a District Court judgment that reinsurers were not obligated to pay ‎additional sums for defense costs over and above the limits of liability specified in a facultative ‎reinsurance certificate. Since then, the Bellefonte rule acted as a de facto cap for both indemnity and ‎expense under a facultative certificate. This issue of ‘limits’ had been hotly contested, and Bellefonte ‎seemed to put it to rest. ‎…

On September 15, 2020, the UK’s High Court issued its highly-anticipated ruling on the “test ‎case” for COVID-19 business interruption insurance coverage. The case was brought by the UK ‎Financial Conduct Authority (FCA) on behalf of several policyholders – many small and medium ‎sized enterprises (SMEs) – to determine how the Court would rule on several different policy ‎wordings for business interruption insurance in relation to losses arising out of the COVID-19 ‎pandemic. ‎…

Opening day might be delayed, but first pitches have already been thrown in courtrooms across the U.S. by insureds seeking business interruption cover for Covid-19 related losses. The judges calling balls and strikes in such cases may see some tough pitches, but the general dispute appears clear enough – can the insured prove the damage claimed is the result of a “direct physical loss” to property? …

On Monday, March 17, 2020, the Oceana Grill, a popular restaurant in the heart of the French Quarter in New Orleans, filed the first known business interruption lawsuit arising out of the COVID-19 pandemic.  Oceana Grill alleges that it purchased an “all risk policy” from defendant Certain Underwriters at Lloyd’s London (“Underwriters”) which covers all direct physical losses to its property “unless the loss is specifically excluded or limited in the policy.”  According to Oceana Grill, the coronavirus is “physically impacting public and private property, and physical spaces in cities around the world.” …

As the U.S. and the rest of the world grapple with the appropriate means and steps to mitigate the spread of the COVID-19 version of Coronavirus, insurers and reinsurers can expect their insureds to submit all manner of claims if they are not already inundated with them. Third-party claims against insureds are also likely, with requests for defense and indemnity soon to follow.…