Business interruption claims may still be possible

By Jerome Doraisamy|08 April 2020
Mark Waller and Chris Erfurt

Any business contemplating a claim under business interruption insurance in the wake of the coronavirus outbreak will need to properly check their terms and conditions.

According to two professionals from Clayton Utz, businesses hoping to make claims under business interruption (BI) insurance due to the global pandemic should check over their policy terms carefully, as it is possible that they are covered even if those policies contain a quarantinable disease” exclusion.

CU partner Mark Waller said that he has been advising some clients on BI policies that contain exclusions for “quarantinable diseases under the Quarantine Act 1908 and subsequent amendments” which, in his view, does not include COVID-19.

BI insurance is usually complementary to property insurance, Mr Waller explained, and covers the cost of reinstating or repairing damaged property and the business interruption losses caused by that damage.

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“While BI policies are generally triggered by property damage, policies may also contain extensions for business interruption losses caused by human infectious disease,” the firm noted in a statement.

“These policies usually respond where there is an outbreak of the disease either at the business premises or within a specified radius – 20 kilometres, for example – or where a public authority (i.e. government) has ordered the premises to be closed or evacuated as a direct response to there being infectious disease at the premises or within the specified radius.”

Mr Waller said: Where the policies simply require that the outbreak occur within a specified radius of the premises, the insurance policy should respond, as it is likely that the business will be able to establish that the outbreak is present within that area.”

CU special counsel Chris Erfurt also noted that some businesses are being mistakenly led to believe that their policies will not cover them for COVID-19 because it falls within the quarantinable disease exclusion, which applies to quarantinable diseases under the Quarantine Act and subsequent amendments.

Our view is that it is not correct to interpret the exclusion as applying to COVID-19,” said Mr Erfurt.

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For one thing, the Quarantine Act was repealed nearly five years ago, so it does not apply to COVID-19. While some of the subject matter the repealed act covered is now contained in the Biosecurity Act 2015, that act is not a ‘subsequent amendment’ to the Quarantine Act.”

“In any event, a listed human disease under that act – which does include COVID-19 – does not fit within the description ‘quarantinable disease’ under the exclusion, as that is a distinct concept under the repealed legislation.”

Mr Waller added this is “an important matter of policy interpretation”, given that businesses that have been impacted by COVID-19 will need to carefully consider recovering BI losses under their insurance cover to help support their financial recovery.

Many businesses are suffering major losses, particularly where they have been designated non-essential businesses and have been forced to close. If there is any scope for these businesses to recoup some of those losses through their BI insurance, they should be able to do that, he reflected.  

Moreover, Mr Waller said another matter that is already being litigated in the US is whether the presence of COVID-19 on property that is insured under property or BI insurance is physical damage to property, and so triggers BI cover without the need for an infectious disease extension. 

This is a novel issue and businesses insured under these policies will be watching these developments very closely, he mused.

Business interruption claims may still be possible
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