But first…

Update on Financial Conduct Authority’s Test Case:

As mentioned in an earlier post, the UK’s Financial Conduct Authority (FCA) is conducting a “test case” with eight property insurers’ policies to determine whether or not COVID-19-related losses are covered under their policies. According the FCA’s website:

(t)he result of the test case will be legally binding on the insurers that are parties to the test case in respect of the interpretation of the representative policy wordings considered by the court. It will also provide persuasive guidance for the interpretation of similar policy wordings and claims, that can be taken into account in other court cases including in Scotland and Northern Ireland, by the Financial Ombudsman Service and by the FCA in looking at whether insurers are handling claims fairly. The test case is not intended to encompass all possible disputes, but to resolve some key contractual uncertainties and ‘causation’ issues to provide clarity for policyholders and insurers. It will not determine how much is payable under individual policies, but will provide the basis for doing so.

The parties have filed defenses and “skeleton arguments” (remember this is in the UK, and the legal procedure is different), and an eight day court hearing began July 20th. On the first day of testimony, the FCA came out swinging:

In his (counsel for the FCA, Colin Edelman, QC) opening arguments, he questioned why many insurers had not restricted cover to a list of defined diseases if they didn’t intend to insure against new and emerging diseases. ‘They price [policies] on the basis that very nasty diseases will never happen… That’s just insurance. Insurers are probably feeling like they’ve made a mistake now with these policies.’ But, he told the court, ‘they’re not protected from the possibility that a cataclysmic event could happen…That’s just bad luck being an insurer.”

For those of you keeping tabs on the case, you can find additional information here.

The Heat is On Congress to Again Act Swiftly on Relief:

Three months after Congress passed massive stimulus packages to assist in buoying the COVID-19 thrashed economy, Congress is under pressure to pass a new bill that would, among other things, continue to provide economic and other forms of assistance to those individuals and businesses in need. For the unemployed, the additional $600 per week federal unemployment stimulus that has helped augment state funded unemployment checks will sunset unless Congress re-ups on the benefit. For individuals and families living in federally funded or federally backed properties, the moratorium on evictions which has been in place since the CARES Act passed, will be lifted, and August 1st rent/mortgage payments will be due. Also on the table is the possibility of another stimulus check for individuals.

A smaller point in the grand scheme of things, but one of interest to the legal and insurance communities, is the issue of limitations of liability. As a result of the complexities of the virus and the ease of its transmission, lawmakers are searching for a way to encourage businesses and schools to reopen by protecting them from liabilities that would inevitably flow if employees/patrons/students contract the virus on premises. Although many legislators are in favor of some kind of limited immunity from COVID-19 related lawsuits being brought against businesses and schools, the appropriate scope of immunity is still up in the air. The idea is to lower the applicable standard of care so that the entities are not subject to a rash of lawsuits, while at the same time to ensure that the individuals are protected from negligent exposure to the virus. We will keep you posted on developments.

Swapping an Exclamation Point for an Asterisk:

I was texting with a friend on the east coast this morning, and he asked me how I was doing. It is such an odd question to answer truthfully now-a-days My typical go-to has always been “great!” or at a minimum “good!” or, if I’m being grammatically sound, “very well, thank you!”. But texting back any of those, especially with that exclamation point, seems disingenuous. Because the definition of a great! summer day is not benchmarked against a COVID-19 summer day. It just isn’t.

I think my new response is going to be “great*” or “good*” or “very well*, thank you”. Notice the positioning of the asterisk. It is not at the end of the “very well, thank you” phrase, but after the description of how I am doing. The fundamentals of my life are still pretty great! I am very lucky to have three healthy teenage kiddos. I am blessed to work in insurance and have many of you as my colleagues and friends. I have a nice community of friends and neighbors in my town who are always just a phone call or a socially distanced catch-up away. I spent a few weeks on the gorgeous Atlantic coast earlier this summer. (Count your many blessings; name them one by one.)

I think the asterisk may just be my new way of acknowledging that things are different. For me, for the recipient of my text, for you, for everyone. I don’t always know what kind of “different” you are experiencing, and the same goes for you not knowing mine. But my little asterisk can help put me at ease to the fact that I’m being truthful (I’m doing great in this new reality, understanding that some days are better than others, that I feel deeply the suffering of those who are suffering, that I rejoice with those who are rejoicing, that I am here to help you if your husband has lost his job, that I am cheering you on as you diligently create for another day of “Camp Stay-at-Home” for your kids) yet not a total Debbie-downer.

So, now you know. That asterisk is not a typo. It is purposeful. And you are free to use it too*

Sources:

Business Interruption Insurance, fca.org.uk first published May 15, 2020, last updated July 20, 2020.

Martin Croucher, FCA Says Insurers’ Virus Liabilities ‘Just Bad Luck’, Law360, July 20, 2020.

Annie Nova, $600 Unemployment Boost. Stimulus Checks. Government Relief is Coming to an Abrupt End, CNBC.com., July 20, 2020.

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Carrie O’Neil

Senior Vice President, Legal & Claims

,,carrie.oneil@cacspecialty.com

,www.cacspecialty.com