With COVID-19, attorneys content that losing the use of a building qualifies as “physical loss of” the building and triggers a business income loss. The courts have been asked to decide.
Courts are being asked to decide whether the phrase, “direct physical loss of or damage to" property at a commercial premises unambiguously excludes the presence or presumed presence of a virus in the absence of a virus exclusion. Essentially, is “physical loss of" ambiguous because of the phrase “damage to?"
Plaintiff attorneys contend that losing the use of a building qualifies as “physical loss of" the building because the insured has lost the use of the building. This would be true and very hard to argue against if not for three key points:
1) The policy states, “direct physical loss of" not just “physical loss of" the property.
2) Exclusion B.2.b. in ISO's Causes of Loss – Special Form (CP 10 30) specifically excludes loss of use.
3) Exclusion B.3.b. in the CP 10 30 specifically excludes the acts or decisions of a governmental body.
Business income is not standalone coverage. ISO's commercial property policy is combined with a cause of loss form—basic, broad or special—and either of the available business income forms—CP 00 30 or CP 00 32. When packaged, the business income forms purposely and unambiguously require direct damage to property by a covered cause of loss before the business income coverage is triggered. In the absence of direct damage, there is no business income coverage.
Why the 'Or'?
Plaintiff attorneys argue that ambiguity is created by the “or" in the phrase “…direct physical loss of or damage to property." They reason that if these phrases do not carry different meanings or have a different intent they are redundant and thus ambiguous.
Surprisingly, the attorneys are right. Each phrase does have a different meaning and intent. These two phrases indicate different degrees of destruction:
- “Direct physical loss of:" The building has suffered a degree of direct damage such that it is unusable.
- “Direct…damage to:" The building has been damaged, but part of it is still usable.
Both phrases are required to assure that business income coverage is triggered following a direct property loss. If only one phrase was used, it might be argued that the lack of the missing phrase precluded coverage for that degree of damage.
Is Direct Physical Damage Necessary to Trigger Coverage?
Regardless of the plaintiff attorneys' contention, the requirement of direct physical damage to the building is unambiguous. The property package, including business income, taken in its entirety as required for contract interpretation, requires direct damage and excludes the indirect damage solely from loss of use or governmental action. Therefore, ISO's policy language is unambiguous.
Chris Boggs is Big “I" executive director of risk management and education.
For more resources, visit the Big “I" Virtual University to read articles on business income and the coronavirus pandemic, including “How Business Income Responds to COVID-19 in Under 975 Words" and “Unwrapping Gregory Packaging: Proving No Business Income Coverage for COVID-19 Closures."