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Property Law
hospitality businesses. Rulings on the merits for insurers have been as high as 70% in the state courts and nearly 87% in the federal courts. To the extent that any cases have not been dismissed, it has been because the trial court believed that the plaintiff had plead sufficient facts to overcome dismissal. A few courts have also left open the door to the argument, if proven, that the COVID-19 virus can cause “physical loss or damage.”
At their peak, there were more than 2000 cases on file. Those numbers have been whittled down significantly. It remains to be seen whether any of the remaining lawsuits will be successful, but a situation that seemed catastrophic to the insurance industry has now faded to the extent that it is no longer the hottest topic when insurers and defense lawyers get together. It is likely that almost all of the cases will be gone within the next two years. The insurance industry paid millions in legal fees, but all in all it dodged a bullet. We are likely to see significant changes and endorsements to commercial policies to hedge against a similar litigation challenge if and when another pandemic strikes.
Prediction: The COVID-19 business interruption and extra expense litigation will be largely over within two years.
John C. Trimble is an FDCC Defense Counsel Member and a Partner with the Indianapolis firm of Lewis Wagner, LLP. Contact him at: jtrimble@lewiswagner.com.
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FDCC ANNUAL FIVES 2023