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the court system, eliminating the ability of the insured’s attorneys to appear in courts and provide their professional services.135 On October 29, 2012, Sandy made landfall.136
The insured contended that the governor’s and mayor’s declarations restricted access to its building for 72 hours commencing October 29, 2012, and court closures prevented the insured from resuming its business operations through November 4, 2012.137 However, the court held there was no civil authority coverage because the civil authority orders did not specifically prohibit access to the insured’s premises; they only made it more difficult to access the premises.138 The insured’s “mere difficulty in accessing the premises is not sufficient to constitute a prohibition.”139
The curfew orders issued after the 2020 riots generally did not completely prohibit access to specific premises. Therefore, they likely do not trigger coverage under a commercial property policy’s civil authority provision that requires access to the insured premises to be specifically prohibited.
4. Civil Authority Exclusions
Many commercial property policies contain an exclusion that precludes coverage for “loss caused by order of any civil authority, including seizure, confiscation, destruction, or quarantine of property.” Although courts have not addressed this provision in the context of an order prohibiting use of property, a New York appellate court has implied that this exclusion would preclude coverage for loss or damage due to a civil quarantine order.140 In Massi’s Greenhouses, the insured sought to recover the costs of removal, clean-up, and lost business opportunities associated with the bacterial contamination of geraniums in its greenhouses following a quarantine order of the New York State Department of Agriculture and Markets.141 The court held that there was a question of fact with regard to whether the losses were caused by the quarantine order, but indicated that if it was determined that the losses were caused by the quarantine order, they would be precluded by the civil authority exclusion.142 Thus, in its ruling, the court indicated that the civil authority exclusion would preclude coverage for loss or damage due to a civil quarantine order.
It is unclear whether this exclusion would apply to business losses resulting from curfew orders. On one hand, it is a “loss caused by order of [a] civil authority.” On the other hand, it does not fit into any of the provision’s specific examples: it is not a seizure, confiscation, destruction, or quarantine of property. This is an open question, and courts have yet to address it.
D. How Many Occurrences?
1. Policy Definition
135 Id.
136 Id.
137 Id.
138 Id. at *12.
139 Id.
140 See Massi’s Greenhouses, Inc. v. Farm Family Mut. Ins. Co., 233 A.D.2d 844, 844, 649 N.Y.S.2d 307, 308 (4th Dep’t 1996).
141 Id. at 844.
142 Id.
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