Insurance Law Hawaii

Washington Federal District Court Grants Stay of COVID-19 Coverage Action

    To await a decision from the Washington Supreme Court, the federal district court stayed the COVID-19 coverage action pending before it. Reckless Enter. v. First Mercury Ins. Co., 2022 U.S. Dist. LEXIS 120832 (W.D. Wash. July 8, 2022). 

    Plaintiff owned and operated a restaurant that lost income during the height of the COVID-19 pandemic after the governor issued shut-down orders. Plaintiff tendered a claim for loss of income during the pandemic under its policy with First Mercury. The claim was denied because COVID-19-related losses did not constitute direct physical loss or damage.

    The federal district court had previously issued its decision in Nguyen v. Travelers Cas. Ins. Co. of Am., 2021 WL 2184878 (W.D. Wash. May 28, 2021), where it denied coverage for a COVID-19 loss of income matter because such losses did not constitute "direct physical loss of or damage to property." Nevertheless, Plaintiff moved to stay this current case until the Washington Supreme Court ruled in Hill & Stout PLLC v. Mutual of Emumclaw Ins. Co. which, involved identical policy language. First Mercury opposed the motion claiming it was "based on the remote possibility that the Washington Supreme Court colud issue a decision diametrically opposed to the prior decision of this Court, the Ninth Circuit, every other state and federal appellate court, hundreds of state and federal courts across the country and the basic tenets of contract interpretation."

    The court granted the motion for stay. It would not be in the interest of judicial economy for this court to predict how the Washington Supreme Court would rule when very soon the court would issue its ruling. First Mercury would not be prejudiced by a stay. The Washington Supreme Court had already held oral argument in Hill & Stout and presumably would issue a ruling shortly. 

Rest in Peace, Justice Moon

    The Hawaii legal community lost a legendary member of the judiciary with the passing of retired Chief Justice Ronald T.Y. Moon on July 4, 2022. While serving as Chief Justice, the Supreme Court decided landmark cases including same sex marriage to protecting native Hawaiian rights and the environment. Justice Moon served as Chief Justice of the Hawaii Supreme Court for 17 years before retiring in 2010.

    Justice Moon was also instrumental in developing Hawaii jurisprudence in insurance law. Some of the significant insurance-related cases he authored are as follows:

AIG Hawaii Ins. Co. v. Smith, 78 Haw. 174, 891 P.2d 261 (1995) - insurer is estopped from denying coverage after failing to reserve rights and retaining control of the defense.

Christiansen v. First Ins. Co., 88 Haw. 136, 963 P.2d 345 (1998) - application of equitable tolling in coverage action. 

Enoka v. AIG Hawaii Ins. Co., 109 Haw. 537, 128 P.3d 850 (2006) - insurer may be in bad faith even if there is no coverage under the policy.

Hough v. Pacific Ins. Co., 83 Haw. 457, 927 P.2d 858 (1996) - workers' compensation insurer owes contractual duties to the worker, as an intended beneficiary of the employer's policy; employee may enforce those duties, including the duty to handle and pay claims in good faith. 

Sentinel Ins. Co., Ltd. v. First Ins. Co. of Hawaii, Ltd., 76 Haw. 277, 875 P.2d 894 (1994) - adopted the Legal Ambiguity rule for duty to defend, whereby, if there is no Hawaii decision on a coverage issue and competing decision exist across the country, the interpretation most favorable to the insured is used. Justice Moon also found the injury-in-fact trigger was applicable in CGL policies where progressive bodily injury or property damage continued across many policy periods. Finally, the decision addressed the consequences when an insurer breaches the duty to defend.

    A special session of the Hawaii Supreme Court will convene on August 8, 2022, at 3:30 p.m. to honor Justice Moon. Due to social distancing, the ceremony is by invitation-only, but the session will be live-streamed for public viewing on the Judiciary's YouTube Channel. 

    Rest in Peace, Justice Moon

Cyber Heist Excluded From Coverage

    The court found there was no coverage for the insured's transmission to a foreign account held by someone who gained unauthorized access to the account. Construction Fin. Admin. Services, LLC v. Fed Ins. Co., 2022 U.S. Distl LEXIS 103042 (E.D. Pa. June 9, 2022). 

    The insured, Construction Financial Administration Services, LLC (CFAS) was a thirty-party construction funds administration company. CFAS disbursed funds for contractors whose clients required performance and payment bonds from sureties. One of CFAS's clients was SWF Constructors (SWF). In 2017, SWF agreed to perform construction work in California for the U.S. Army Engineer District involving fence replacement over two miles. 

    A surety issued performance bonds and required SWF to deposit all payments received from the project owner into a disbursement account administered by an independent third-party. SWF entered into a funding agreement with CFAS in order to meet the surety's requirement that project payments be administered by an independent third party. 

    CFAS established a disbursement account and arranged for project payments from the owner to be directly deposited into the disbursement account. On April 9, 2018, CFAS received a request from what it believed to be SWF to make a payment from the account of $600,000 by wire transfer to a company in Hong Kong named HK Canopy Technology Limited (HK). HK was no listed in SWF's budget as a subcontractor, nor had CFAS received a copy of any executed agreement between HK and SWF. Further, the invoice did not refer to the project nor identify what work or materials were supplied. Nevertheless, the payment was made. 

    The next day, another request was received from what CFAS believed was from SWF seeking payment from the disbursement account for $700,000 by wire transfer to HK. Again, no disbursement voucher nor any item identification was received. The payment was sill authorized.

    When SWF submitted a disbursement voucher, CFAS stated that the two payments to HK had left insufficient funds to make the requested disbursement. CFAS borrowed $1,000,000 and placed those funds into the disbursement account in order to avoid SWF's default  of payment to its actual subcontractors and supplies. 

    An investigation revealed that a SWF employee's email had been hacked by an unknown fraudster. The fraudster gained access to SWF's network prior to the unauthorised transfers. Posing as a SWF employee the fraudster sent emails to CFAS requesting the transfers.

    CFAS submitted a claim to its insurer, Federal Insurance Company (FIC). The policy excluded claims arising from unauthorized access to any computer program, computer, or computer system. Further, the policy provided that the insured could not settle or offer to settle any claim without FIC's prior written consent. Under these provisions, FIC denied the claim. CFAS filed suit.

    After discovery, cross-motions for summary judgment were filed. The court found in favor of FIC. There was no breach of the policy because it did not cover the loss. The language of the exclusion clearly contemplated losses precipitated by social engineering events such as hacking. Even if the exclusions did not apply, CFAS failed to provide notice of the loss to FIC before settling the claims. Summary judgment was therefore granted to FIC. 

Allegations that COVID-19 Virus Lives on Surfaces Adequately Alleges Direct Physical Loss or Damage

    The California Court of Appeal reversed the trial court's granting of the insurer's demurrer and found the insured adequately pled a claim of direct physical loss or damage due to the presence of COVID-19. Mariana Pacific Hotel & Suites, LLC v. Fireman's Fund Ins. Co., 2022 Cal. App. LEXIS 608 (Cal. Ct. App. July 13, 2022).

    Fireman's Fund issued a general property policy to the Hotel which provided coverage for direct physical loss or damage to the insured property. Business interruption coverage was extended for the actual loss of business income due to the necessary suspension of operations during the period of restoration arising from direct physical loss or damage to covered property. 

    The Hotel's first amended complaint alleged, on information and belief, that "the presence of COVID-19 on property, including on and within Insured Properties, caused and continues to cause physical loss and/or damage to property by causing, among other things, a distinct, demonstrable or physical alteration to property."

    The first amended complaint further alleged, "A study by the Virology Journal showed that COVID-19 can survive on surfaces up to 28 days, serving as a vehicle for transmission during that time span." The Hotel alleged that COVID-19 had been present in and before March 2020 on a variety of physical objects in the insured properties, including furniture, countertops, walls, bedding, appliances and food and other packaged items, as well as in the air. By government order, the Hotel had to be evacuated, decontaminated, or disinfected and one employee was ordered by the Department of Health to evaluate the hotel and quarintine. The physical loss or damage to property required the closure or suspension of operations at the Hotel. 

    Fireman's Fund demurred to the first amended complaint, arguing the Hotel had failed to allege facts showing direct physical loss or damage to covered property. Fireman's Fund pointed out that courts across the country had ruled the pandemic did not equate to physical loss or damage and argued loss of use alone did not constitute direct physical loss or damage.

    The trial court granted Fireman's Fund's demurrer. The court relied on MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins. Co., 187 Cal. App. j4th 766 (2010), which held "accidental direct physical loss required 'an actual change in insured property then in a satisfactory state, occasioned by accident or other fortuitous event directly upon the property causing it to become unsatisfactory for future use or requiring that repairs be made to make it so." The court explained, "[W]here the property has simply been rendered unusable based on a virus, rather than an external force, the loss of use of the property in a typical manner is not a 'directly physical loss' contemplated by the insurance policy."

    On appeal, the Hotel pointed to prior cases in which the Court of Appeal held a home had suffered physical loss or damage when the land underlying the home slid away, leaving the home standing on the edge of a newly formed cliff. In another case under a third-party liability policy, the existence of asbestos fibers on surfaces in a building constituted property damage. 

    The Hotel pleaded direct physical loss or damage to covered property within the definition articulated in MRI Healthcare - a distinct, demonstrable, physical alteration of the property. The Court of Appeal agreed. The firs amended complaint adequately alleged direct physical loss or damage within the MRI Healthcare definition. The court did not have to decided whether direct physical loss or damage could be shown without evidence of a physical alteration in the insured property. 

    The court recognized its conclusion was at odds with almost all decision considering whether business losses from the pandemic were covered. Federal case law, however, was not binding on the court. Further, the pleading rules were different in federal court when evaluating a trial court order sustaining a demurrer. To survive a motion to dismiss under the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under California law, however, the plausibility of the insureds' allegations had no role in deciding a demurrer which required the court to deem as true, however improbable, facts alleged in a pleading. 

    Further, many prior cases, including Inns-by-the-Sea v. California Mutual Ins. Co., 71 Cal. App. 5th 688 (2021, involved allegations of loss of use of insured property as a result of government-ordered closures to limit the spread of COVID-19, rather than a claim the presence of the virus on the insured premises caused physical damage to covered property, which in turn led to business losses. 

    Because the insureds adequately alleged losses covered by Fireman's Fund's policy, they were entitled to an opportunity to present their case, at trial or in opposition to a motion for summary judgment. 

Claim for Punitive Damages Based on Insurers' Alleged Bad Faith Business Practices Fails

    The court granted the insurer's motion to dismiss the bad faith claim based upon allegations of a general business practice of acting recklessly toward an insured's rights under the policy. Sandpiper Isle Condo. Ass'n v. Empire Indem. Ins. Co., 2022 U.S. Dist. LEXIS 114279 (M.D. Fla. June 28, 2022). 

    Sandpiper suffered property damage from Hurricane Irma. Empire accepted the claim but there was disagreement on the value of the damage. An appraisal issued an award in favor of Sandpiper but Empire failed to pay the benefits for two years.

    Sandpiper filed suit and included a claim for punitive damages. Sandpiper argued Empire intentionally subjected insureds to "an error-ridden, lackadaisical adjustment process" to reduce Empire's payments. Sandpiper noted other instance in which "Empire engaged in conduct to omit their financial obligations to the insured, including a similar investigation process." 

    Florida law only permitted a claim for punitive damages where acts giving rise to the violation occurred with such frequency as to indicate a general business practice. But Sandpiper failed to demonstrate that Empire had a general business practice of acting with reckless disregard for an insured's rights under the policy. In a conclusory manner, Sandpiper made such claims as asserting its belief that "such conduct runs rampant within Empire prior to and at the time of the Claim, and further believes that such conduct continues with Empire today." Sandpiper did not explain how many different claims the "rampant" behavior occurred in or over what span of time.

    Therefore, Sandpiper's pleading failed to sufficiently implicate Empire's general business practices. Empire's motion to dismiss was granted without prejudice.

    

Awarding Insurer Summary Judgment Before Discovery Completed Reversed

    The Florida Court of Appeal reversed the trial court's awarding of summary judgment to the insurer because discovery was not completed. Sacramento v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 4292 (Fla. Ct. App. June 22, 2022).

    The insured filed a claim under the all-risk policy for water damage caused by Hurricane Irma. Citizens denied the claim based upon a policy exclusion. The insured filed suit on March 8, 2019.

    On April 24, 2020, Citizens moved for summary judgment. A hearing was set for August 10, 2020. Citizens filed a notice for a deposition of a Mitigation Company representative scheduled to occur on December 1, 2020. On August 14, 2020, the insured filed an opposition to the summary judgment motion arguing that it would be premature to grant the motion because there were still pending depositions. The insured specifically requested that the trial court not enter summary judgment until the mitigation company's representative was deposed because he was a key witness who would be testifying regarding the cause of loss. 

    On August 18, 2020, the trial court heard the motion. Summary judgment was entered in favor of Citizens. The insured appealed.

    While the insured did not file a motion for continuance of the hearing, he did note the deposition in his opposition and called opposing counsel to ask to reset the hearing while the deposition of a key witness had already been noticed. Citizens itself defeated its own summary judgment motion by filing a notice of deposition of a key witness. 

    The trial court could not simply ignore a pending deposition of a witness whose testimony would most likely raise a genuine issue of material fact. The trial court's order granting summary judgment was reversed and the case was remanded.

 

COVID-19 Business Interruption Claim under Environmental Policy Survives

    The court determined there was coverage for business interruption due to COVID-19 under an Environmental policy. Sunstone Hotel Investors, Inc. v. Endurance American Spec. Ins. Co., 2022 U.S. Dist. LEXIS 11147 (C.D. Cal. June 15, 2022).

    Sunstone was a real estate investment trust that had an interest in 20 hotel properties with 10,000 guest rooms across the United States. In 2017, Sunstone purchased a "Site Environmental Impairment Liability Coverage" policy from Endurance. The policy provided $25,000,000 of coverage for business interruption losses caused by a biological agent. Coverage D provided that Endurance would pay "the Insureds' Business Interruption Losses and Extra Expenses during the Interruption Period that directly results from . . . Biological Agent Conditions  . . ." There was no dispute that COVID-19 was a Biological Agent, but the parties disagreed on coverage provided under Coverage D. 

    From February 24 to 27, 2020, one of Sunstone's hotels in Boston hosted the Biogen Conference. On March 5, 2020, Sunstone was informed by the Boston Public Health Department (BPHD) that three attendees of the conference tested positive for COVID-19. The next day, Sunstone gave notice to Endurance. Between March 6, 2020 and March 14, 2020, portions of the hotel were cleaned. On March 11, 2020, BPHD informed the hotel that it must be closed. The hotel agreed to suspend its operations for 14 days.

    Before the hotel could reopen, on March 23, 2020, the State of Massachusetts issued an order requiring the closure of all non-essential businesses in the state. The hotel remained closed until July 7, 2020, at which point it reopened in a limited capacity. 

    Sunstone filed a claim with Endurance on March 5, 2020. Endurance denied the claim. Sunstone filed suit and cross-motions for summary judgment were filed.

    Coverage D provided that Endurance would pay for Business Interruption Losses during the Interruption Period that "directly result from . . . Biological Agent Conditions. . ." Endurance argued that any Business Interruption Losses that may have been sustained after March 23, 2020 were due to the Massachusetts Order, not a Biological Agent Condition.

    Endurance relied upon cases discussing "damage to property" policies. But the policy here did not require physical damage or physical loss of use. Instead, the coverage was designed to address viruses and other biological agents that interrupted the hotel's operations.     

    The Massachusetts Order may not have been issued solely to stop the spread of the virus disseminating from the hotel, but it was issued to prevent future super-spreader events like the Biogen conference which took place at the hotel. The Order was designed, at least in part, to prevent the virus's spread because of the hotel's operations. 

    Next, Endurance argued the the Interruption Period ended as soon as the Massachusetts Order took effect on March 24, 2020. Sunstone countered that the Interruption Period lasted until March 2021, or for one year - the maximum duration of the Interruption Period under the Policy. Due to an ambiguity in the policy and Sunstone's objectively reasonable expectations, the court concluded that as long as the virus was a source of the hotel's Business Interruption Losses, the Interruption Period continued, ending no later than March 2021. 

    Finally, Endurance raised an exclusion under Coverage D providing that "the Interruption Period will be deemed to have ended even if operations cannot resume . . . for regulatory reasons." Endurance argued that the Massachusetts Order was regulatory and even if the hotel was initially closed to address the presence of the virus, the hotel's operations remained suspended after March 26, 2020 solely because of the Massachusetts Order. Endurance had not shown, however, that the Massachusetts Order was the actual reason there was interruption to the hotel's operations. There was no question that the virus itself interrupted the hotel's operations because even if the State had allowed the hotel to operate at full capacity, the hotel could not have done so. 

    Therefore, Endurance's motion for summary judgment was denied. Sunstone's motion with respect to how to interpret the provision governing the ending of the Interruption Period was granted. The court denied Sunstone's motion that the court make the factual determination that the Interruption Period ended in March 2021. Further discovery was required to decide this issue. 

No Coverage for Repairs Made Before Suit Filed

    After a hurricane damaged the building the insured was constructing, there was no coverage under the CGL policy for repairs the insured made in the absence of a suit being filed. Planet Construction J2911 LLC. v. Gemini Ins. Co., 2022 U.S. Dist. LEXIS 105468 (W.D. La. June 13, 2022). 

    Planet Construction was a general contractor hired to build a fitness club. On August 27, 2020, Hurricane Laura struck the area. After the storm, a pipe in the sprinkler system broke, allegedly due to faulty materials and workmanship by a subcontractor, S&S Sprinkler. Planet Construction sought coverage under its policy with Gemini as well as under S&S's policy with Zurich. Both insurers denied coverage and Planet Construction filed suit.

    Gemini moved to dismiss. The Court noted coverage would only be triggered if the building owner held Planet Construction liable for the sprinkler failure, but no suit was ever filed. Even though Planet Construction's remediation and repair efforts likely averted a breach of contract claim by the building owner, the court could not expand coverage under the policy to cover proactive measures. 

    Accordingly, Gemini's motion was granted.

Coverage for Named Windstorm Removed by Insured, Terminating Such Coverage

    Over a series of policies, the insured had no coverage for named windstorms when it was removed from the policies in return for a reduced premium. Shiloh Christian Ctr. v. Aspen Sec. Ins. Co. 2022 U.S. Dist. LEXIS 100959 (M. D. Fla. May 9, 2022). 

    Plaintiff had coverage from Aspen from 2014 through at least 2018 under several year-long policies, each of which renewed the prior year's policy. The premium for the 2014-2015 Policy was $50,000. In May 2015, plaintiff asked what the premium would be without hurricane coverage. He was informed this would reduce the premium to $32,000. The insured asked for the change in coverage to eliminate named windstorm coverage and a return premium was issued to the insured for $16,545.

    The 2016-2017 policy was issued for a premium of $22,500. The policy indicated it was a renewal of the prior policy. The revised quote made clear that the policy would exclude coverage for "Named Windstorm." 

    On October 6, 2016, plaintiff's property was struck by Hurricane Matthew, causing extensive damage. Plaintiff submitted a claim on October 11, 2016 under the 2016-12017 policy, reporting the damages as "Water Damage from Roof Hurricane Matthew." After inspection, Aspen denied the claim because no wind damage was observed and the policy excluded Named Windstorm as a covered peril. 

    Another renewal policy was issued for 2017-2018. Thereafter, Hurricane Irma damaged the insured's property on September 10, 2017. On August 4, 2018, the insured submitted a claim under the 2017-2018 policy, listing only "Hurricane Irma" as the cause of loss. This claim was also denied by Aspen because the damage appeared to be the same damage caused by Hurricane Matthew and because of lack of coverage for damage due to a named windstorm. 

    Plaintiff filed suit alleging breach of contract and seeking a declaratory judgment as to coverage under the policies. Both parties filed motions for summary judgment. 

    The court found that named windstorm coverage was excluded from each of the policies from July 2015 forward. At this time, the insured sought to remove named windstorm coverage to save on the premium. Nevertheless, the insured contended that the renewal of the 2015-2016 policy - i.e,, the 2016-2017 policy- did not contain the same exclusions, The record showed the claim was false. The reduced premium earned by dropping named windstorm coverage was carried through to subsequent policies. Thus, the insured continued to receive the benefit of its July 2015 bargain by receiving lower premium in exchange for reduced coverage.

    Therefore, Aspen's motion for summary judgment was granted and the insured's motion was denied. 

Fifth Circuit Certifies Questions to Texas Supreme Court on Concurrent Causation Doctrine

    The Fifth Circuit certified unanswered questions on the concurrent causation doctrine to the Texas Supreme Court. Overstreet v. Allstate Vehicle & Prop, Ins. Co., 2022 U.S. App. LEXIS 13582 (5th Cir. May 19, 2022).

    The insured alleged that a hail storm damaged his roof. The roof was three years old when he purchased a policy from Allstate. An adjuster sent by Allstate valued the loss at $1,263.123, less than the policy deductible. Allstate contended that the roof damage was due to uncovered causes, namely a combination of wear and tear and earlier hail storms that hit the roof before the insured purchased the policy. The insured disagreed because the roof had never leaked before the hail storm, but only after the storm. The insured's expert inspected the roof and determined it had been damaged by hail. The district granted Allstate's motion for summary judgment because the insured had not carried his burden of proving how much damages came from the hail storm alone. 

    On appeal, the Fifth Circuit noted that Texas's concurrent causation doctrine instructed that "when covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reasonable basis on which to allocate the damage." But questions remained about when the doctrine applied, and what plaintiffs had to prove when it did.

    The Fifth Circuit therefore certified three questions to the Texas Supreme Court:

1) Whether the concurrent cause doctrine applied where there was any non-covered damage, including "wear and tear," but such damage did not directly cause the particular loss eventually experienced by plaintiffs.

2) If so, whether plaintiffs alleging that their loss was entirely caused by a single, covered peril, bore the burden of attributing losses between that peril and other, non-covered or excluded perils that plaintiffs contended did not cause the loss; and

3) If so, whether plaintiffs could meet that burden with evidence indicating that the covered peril caused the entirety of the loss.