Huge financial losses are among the lingering effects of the COVID-19 pandemic, and Colorado businesses and public institutions are among those suing their insurance companies to get some relief. However, experts say the courts might not be a cure.
IHS Markit in Centennial, which provides analytics and information to governments and financial markets, is suing the global insurance company Chubb, or the Great Northern Insurance Co., for more than $100 million in losses because of the pandemic.
IHS Markit said in a lawsuit filed at the end of 2022 in Arapahoe County District Court that its insurance policy is broad and doesn’t exclude viruses or pandemics, yet Chubb has denied coverage for “coronavirus-related losses in their entirety.”
IHS Markit, whose brands include CARFAX, declined to comment on the lawsuit. It is a wholly owned subsidiary of S&P Global Inc.
Chubb didn’t respond to a request for comment.
A lawsuit by the University of Colorado Board of Regents accuses Factory Mutual Insurance Co. of breach of contract for failing to honor its obligation to cover the tens of millions of dollars in losses across all its campuses because of the pandemic.
The regents’ lawsuit, filed in Boulder County District Court, says the insurance policy specifically covers expenses related to responding to communicable diseases and associated interruptions. The regents, who are seeking a trial, sued after Factory Mutual refused to investigate the claim, according to the complaint.
IHS Markit, the CU regents and others suing insurance companies to recoup pandemic-related business losses are trying to buck a trend that favors the insurers, said Tom Baker, a professor at the University of Pennsylvania Carey Law School. Baker created a database to track COVID-related insurance litigation in state and federal courts.
“Other than one trial in Texas, there’s been no case where there’s been a final result in favor of a policy holder and that case is on appeal,” Baker said.
In 2022, the Baylor College of Medicine won a $48.5 million jury verdict in state court against a unit of Lloyds of London, Bloomberg Law reported. The college sought compensation under coverage for losses due to the interruption of business.
But decisions in hundreds of lawsuits across the country have overwhelmingly gone to the insurance companies. Baker said federal courts have “almost uniformly found in favor of the insurance companies in the very preliminary stage in the litigation.”
In state courts, the results are a bit more mixed. Penn’s litigation tracker shows that 162 state-level cases, the majority listed, have been dismissed with prejudice, meaning the case can’t be refiled in that court. Other cases have been partially dismissed. Motions to dismiss cases have been denied 46 times.
Federal courts have dismissed 622 lawsuits with prejudice, the vast majority of the cases. In late January, the lawsuit by IHS Markit was moved to federal court from state district court after Chubb filed for the transfer, a move that didn’t surprise Baker.
“In Colorado, there have been some trial court level decisions that are favorable to policyholders,” Baker said.
The law professor noted that the CU regents’ lawsuit, filed in March 2021, is still making its way through the court, with depositions being taken and motions being filed. In a previous Colorado case, a church won an insurance claim for damages due to gas fumes.
Overall, the courts are primarily siding with the insurance companies, a trend that Ken Stoller of the American Property Casualty Insurance Association expects to continue. Court decisions or legislation mandating retroactive business-interruption coverage to include COVID-19 losses would undermine the insurance industry’s stability, said Stoller, the trade association’s assistant vice president and amicus counsel.
“Business interruption insurance is part of property insurance policies that cover actual physical loss of or damage to covered property. Actual physical loss is the total destruction of covered property by fire or tornado or the loss of covered property due to theft, for example,” Stoller said in an email.
The policies aren’t intended to cover diseases or pandemic related losses, Stoller added. “In the vast majority of cases, insurers did not price policies to include such coverage, and policyholders did not pay for it.”
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