As insurance professionals and insurance lawyers are aware, Washington State is historically one of the most liberal jurisdictions in the country. This has often led to decisions and rulings that favor policy holders. However, on August 25, 2022, the Washington State Supreme Court issued a decision finding that COVID-19 related business income losses are not covered under standard commercial property insurance policies. Hill & Stout, PLLC v. Mutual of Enumclaw Insurance Company, Cause No. 100211-4.
Hill & Stout is a Washington dentistry practice. When the COVID-19 pandemic first arose in the State of Washington, Governor Jay Inslee declared a state of emergency and issued multiple proclamations relating to public health and safety, including a proclamation prohibiting all non-emergent dental procedures. In light of the emergence of COVID-19 and the governmental and societal response thereto, Hill & Stout joined thousands of businesses in Washington and around the country in seeking Business Interruption coverage under its commercial property policy.
Mutual of Enumclaw (MOE) denied Hill & Stout’s claim effectively for two reasons. First, the business income loss coverage is triggered only where there is “direct physical loss or damage” to the insured premises. Second, the MOE policy contained an exclusion for any losses caused by a virus. Hill & Stout sued in the King County Superior Court.
Since the inception of the global pandemic, thousands of lawsuits relating to business income loss coverage have been filed by businesses seeking to recover their losses. The courts around the U.S. have been nearly universal in finding that there is no coverage for these claims. In fact, as Lether Law Group has previously reported, the United States District Court for the Western District of Washington has previously ruled in favor of insurers on these claims. Germack v. The Dentists Insurance Company, W.D. Wa. Cause No. 2:20-cv-00661-BJR.
However, until Hill & Stout, the highest court in the State of Washington had not fully and finally resolved the issue in this jurisdiction. In Hill & Stout, the Supreme Court found that there is no coverage for COVID-related business losses because the virus and the governmental proclamations related thereto do not cause direct physical loss or damage to the insured premises. The insured had focused their argument on the claim that they had a “loss” of the business. The Supreme Court rejected that argument finding that the loss was not “physical”.
The Court went on to find that the efficient proximate cause of the business losses was not the governmental response to the virus, but the virus itself. As a result, the Court held that the virus exclusion would operate to preclude coverage, even if there was a direct physical loss.
Lether Law Group represents multiple carriers in Washington and in jurisdictions around the United States in COVID-related business income loss claims. This includes the Germack case referenced above. If you would like to speak with us regarding these or any other claims, please contact us at any time.
Kevin J. Kay
Shareholder
Kevin is a graduate of Pacific Lutheran University and Seattle University School of Law. He is licensed to practice in the state and federal courts of Washington and admitted to practice before the Ninth Circuit Court of Appeals. In addition, Kevin has appeared pro hac vice in courts in Louisiana and California. Kevin has represented insurers and insureds in coverage for 16 years. These claims involve personal and commercial auto policies, commercial general liability, professional liability, and E&O insurance. Kevin has also advised and represented risk pools, insurers, and insured in matters ranging from automobile/bus accidents to catastrophic landslides. His practice also includes construction defect disputes, personal injury claims, commercial leases, and significant property damage disputes.
