Insurer Files Dec Action Against Insured Re COVID-19 Coverage

We’ve touched on numerous declaratory judgment actions being filed by policyholders against their property insurers. In those cases, restaurants, bars, movie theaters and other consumer-facing businesses are asking courts to affirmatively state that these entities are entitled to coverage for COVID-19 related losses. Last week, an insurer fired back and sued its policyholder in federal court asking the court to declare that the no coverage was available under the insured’s policy.

Although the insurer’s suit was filed a week after the policyholder originally sued the insurer in state court, the new case, Travelers Casualty Insurance Company of America v. Geragos & Geragos, A Professional Corporation, was not a response to the state court claim. It appears instead to be a strategic play by the insurer; a loud affirmative “our policy does not cover these losses!”. The suit was filed by the insurer on the same day it sent a denial letter in response to the policyholder’s COVID-19 related property claim for coverage.

Why does this case appear to be a great one for the insurance industry? For one, the insurer, Travelers, is a well-known insurer with a long-standing favorable reputation in the insurance industry. Two, the lead attorneys representing Travelers are from the firm Gibson, Dunn & Crutcher, a highly-respected law firm. The policyholder is the law firm Geragos &Geragos. Yes, that Geragos…Mark Geragos, the famous criminal defense attorney who has represented people like Michael Jackson, Scott Peterson and Colin Kapernick. Mr. Geragos’ name is widely recognized in the US, and he is, to put it lightly, quite vocal. Publicity from this case may actually be a good thing for Travelers? Finally, the policy at issue has a broad virus exclusion, which should be a slam dunk for the insurer in denying coverage. There will undoubtedly be more to come on this suit, and we will keep you posted.

EEOC’s Updated Guidance

Last week the EEOC issued additional guidance in its ongoing outreach entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. According to The National Law Review, the new update includes a provision that allows companies to test their employees for the virus before they come in to a workplace. The testing must be done in compliance with the American With Disabilities Act. Additionally employers have to take steps to ensure that all of the testing administered is “accurate and reliable” in accordance with guidance given by the USDA, the CDC and local health authorities. The EEOC was careful to emphasize that the testing was no substitute for proper “workplace infection control practices, such as social distancing, regular handwashing and other measures designed to prevent transmission of COVID-19.”

Sources:

Mike Curley, Travelers Sues Geragos Law Firm in Virus Coverage, Law360, April 21, 2020.

Travelers Casualty Insurance Co. of America v. Geragos & Geragos APC, 2:20-cv-03619, U.S. District Court for the Central District of California.

Mark Geragos Fast Facts, CNN.com, September 26, 2019.

Laura Stutz, Updated EEOC COVID-19 Related Workplace Guidance: COVID-19 Testing, The National Law Review online, April 24, 2020.