According to the online Covid Coverage Litigation Tracker (CCLT) run by Penn Law there have been more than 2,300 insurance coverage cases filed over denial of claims relating to Covid-19. Restaurants and bars were hardest hit by the pandemic and so led the way in seeking – and being denied – coverage, too. They are also leading the way in suing their insurers. The top five insurers in the defense position are Chubb Limited at #5, then #4 Lloyds of London, #3 Cincinnati Financial, and #2 Zurich. And in the #1 position facing the most coverage suits is Hartford.

The insurance industry started off strong when this litigation began, winning the vast majority of the coverage suits. And they continue to do well, scoring with the argument that many of the claims do not involve actual property damage. Government closures don’t cause property damage, they argue. Courts have largely been siding with the carriers – but not all. Policyholders, a tenacious bunch, appear to be chipping away at the body of law in this suddenly expanding category. A recent case involving a New Orleans restaurant against Lloyd’s was penciled into the win column for carriers by a trial court , but an appeals court erased it and wrote the policyholder a narrow 3-2 victory. The appeals court said the language of the policy was ambiguous, and therefore had to be construed in favor of the restaurant. What's it mean? Does this bode well for policyholders? Or can we expect to see, as we did in previous coverage wars, a mixed bag of decisions across the nation?

For more on that case and today’s Covid coverage landscape, listen to my interview with Marshall Gilinsky, a shareholder in the New York office of Anderson Kill. Marshall has represented policyholders of various policy types for two decades, including those seeking coverage in the aftermath of the 9/11 attacks, Hurricane Katrina, and Superstorm Sandy. Thanks to Marshall for sharing his insights.

This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

P.S. Please excuse my periodic memory lane strolls as I waxed nostalgic while stroking the gray bristles of my chin about the pollution exclusion, the sudden and accidental exception to the exclusion, and, you know, what really does it mean for something to "occur"? I've led a heart-stopping existence. And so can you.