Following up on yesterday’s post, Large Business Interruption Verdict Results in Post-Trial Fights, the business interruption requirement to determine the period of restoration was a major issue pre-trial. Studying the pre-trial motions and the ruling denying the insurers’ motion in limine 1 on the period of interruption issue is one of those moments that made me smile and think that long-time readers of this blog could have predicted the court’s ruling.

The insurers tried to keep the jury from hearing any evidence that their alleged delay in adjusting and paying the claim might extend the period of restoration beyond a neat, insurer-friendly 40 weeks. Their argument was simple enough. The policy defines the period of interruption. The court once referenced 40 weeks. End of discussion. Nothing to see here. Move along.

The judge was not persuaded.

Instead, the court did what courts are supposed to do when facts matter. It recognized that whether insurer delay hampered repairs and whether that delay should affect the length of the period of restoration are factual questions for a jury. In other words, the real world where adjustment time affects restoration still matters. Claims do not get adjusted instantaneously. Repairs do not begin in a vacuum without the ability to finance the construction. Money is required, decisions are made, delays occur, and sometimes those delays are caused by insurers.

This should sound familiar to anyone who has followed my writing over the years. I have written more than once about the fiction insurers try to sell that the period of restoration exists in a universe where adjustment time magically does not count. Courts across the country have repeatedly rejected that idea, recognizing that when insurers delay, deny, or obstruct, the clock does not just keep ticking as if nothing happened. I would suggest that those interested in this topic read Is the Loss Adjustment Process Factored in a Period of Restoration? Understanding Business Interruption Claims, Part 2, Adjustment Time and Wrongful Denial Considered in Period of Restoration, and Period of Restoration – Should the time to adjust the claim be considered? Part II.

The insurers’ motion in limine was really an attempt to relitigate that fiction under the guise of evidentiary rules. They argued relevance. They argued prejudice. They argued that equity doctrines should not interfere with their preferred reading of policy language. The court saw through it and allowed the policyholder to present evidence of claims handling, delay, and its effect on rebuilding efforts.

Here is where I get a little tongue in cheek. As I read the briefs and then read the court’s ruling, I could not help but think that the policyholder’s lawyers missed an opportunity. Somewhere in the policyholder’s opposition brief, there really should have been a citation to this blog. After all, I have been pointing out for years that adjustment time and wrongful delay are part of the period of restoration. I even gave them three ready-made citations. Sometimes I wonder if judges would appreciate a footnote that says, “See Merlin, who has been yelling about this for a decade.”

Joking aside, the ruling is an important reminder for policyholders and public adjusters. Insurers will almost always try to slice the period of interruption down to the shortest possible theoretical timeframe, divorced from how claims are actually adjusted. Courts, however, continue to recognize that business interruption coverage is supposed to indemnify real losses in the real world, not losses in an insurer’s spreadsheet fantasy.

This decision fits squarely within that growing body of law. It reinforces that insurers cannot delay payment, complicate adjustment, and then argue that those same delays are legally irrelevant. Juries get to hear that story. And when they do, insurers often regret having made the argument in the first place.

Thought For The Day

“The truth does not change according to our ability to stomach it.”

— Flannery O’Connor

1 JW Aluminum Co. v. Ace American Ins. Co., No. 2:21-CV-1034 (D. S.C. Nov. 7, 2025).