Insurance companies should prove the reason for not paying a claim under an all risk insurance policy. The denial should not stand on false opinions of fact. This was the point of a brief filed by a medical society in a covid business income claim pending before the New Hampshire Supreme Court.1
The New Hampshire Medical Society concluded its argument as follows:
It is often said that someone is entitled to their own opinion but they are not entitled to their own facts. This is just such a case. The Insurers and the APCIA devote large portions of their briefs to COVID Denial –denying the severity of COVID-19, claiming surface cleaning removes it once and for all from a business premises, claiming SARS-CoV-2 is ‘evanescent’ and that the virus does not render property uninhabitable. While those positions may be the Insurers’ opinion, they are simply unmoored from any scientific facts. The science refutes each and every one of those positions. Their adoption by this Court would shatter public trust and confidence in medicine and in the physicians who compose the Society’s members, imperiling the public health in this state.
The Society implores this Court to rely on the real science advanced by the Society in this brief – not the opinions found in the Insurers’ and the APCIA’s briefs – in rendering a decision in this case.
The Medical Society’s brief should be required reading by everyone involved with a covid-related business income loss claim. For instance, the brief notes:
…SARS-CoV-2 cannot be removed by routine surface cleaning. A number of studies have similarly demonstrated that Coronavirus is ‘much more resilient to cleaning than other respiratory viruses so tested.’
Studies have demonstrated that even extraordinary cleaning measures do not remove Coronavirus from surfaces. For example, a 2021 study by the largest hospital network in New York State demonstrated that even after trained hospital personnel used disinfection procedures in Coronavirus patient treatment areas, much of the virus survived in those areas – proving even intense, non-routine surface cleaning does not remove it from surfaces – let alone from the air. Stated simply, if even trained hospital workers using hospital-grade disinfectants could not remove all SARS-CoV-2, Lysol and a rag will not. As such, the Insurers’ and the APCIA’s assertion that routine cleaning removes SARS-CoV-2 from property has no basis in science and should not guide this Court’s decision.
The problem is that these false opinions have been a basis for many court decisions. For example, in Wisconsin Supreme Court Rules Covid Does Not Cause Physical Loss or Damage, I quoted a portion of that decision which states:
The virus does not necessitate structural ‘repairs or remediation’; it can be removed from a surface with a disinfectant. See Uncork & Create LLC v. Cincinnati Ins. Co., 498 F. Supp. 3d 878, 883–84 (S.D. W. Va. 2020), aff’d, 27 F.4th 926 (4th Cir. 2022).
Then I noted that “the courts are simply placing their own version of science and what Covid 19 does to property in lieu of allowing cases to move to the stage where evidence is presented.” The reason courts are doing this is because the insurers continue to propagate this false narrative. The medical society calls them out for it:
The insurance coverage issue is beyond the Society’s mission but the statements by the insurer-appellants (the ‘Insurers’) and their supporting amicus curiae, the insurance industry-funded American Property Casualty Insurance Association (‘APCIA’) – repeatedly minimizing the seriousness of COVID-19 and inaccurately claiming SARS-CoV-2 can be removed from a property with simple surface cleaning – strike at the heart of the Society’s mission.
Simply put, these statements are not grounded in science and utterly ignore the actual scientific understanding of COVID-19, its transmission and the inability to completely remove SARS-CoV-2 from a property with routine surface cleaning.
I again remind readers of my recent post, The Insurance Industry Teaches That a Cause of Loss Does Not Have to Alter Property. However when it comes to Covid, there is scientific evidence that it does.
Thought For The Day
The best and most beautiful things in the world cannot be seen or even touched – they must be felt with the heart.
1 Schleicher and Stebbins Hotels, LLC v. Starr Surplus Lines Ins. Co., No 2022-0155 [Amicus Brief of New Hampshire Medical Society] (N.H. 2022).