US: Guide to federal and state COVID-19 era legislative proposals on commercial insurance coverage

H.R. 6494

(Rep. Thompson, M; co-sponsored by Reps Larson, J; Hastings, A; Napolitano, G; Rogers, M; McNerney, J; Cisneros, G; Cox, TJ; Garamendi, J; and Darren, S.)

Summary: Requires, effective upon enactment, any insurer that offers or makes available businesses interruption coverage to make available such coverage for losses resulting from (a)“any viral pandemic;” (b) any “forced closure of businesses” or “mandatory evacuation” by federal, state or local governments or agencies; or (c) any “power shut-off” for public safety purposes. In addition:

• Such coverage may not materially differ from terms, amounts and other coverage limitations applicable to losses from events other than those specified above.
• Any exclusion in business interruption insurance that is in force on the date of enactment “shall be void to the extent that it excludes losses specified” above.  However, such exclusions may be reinstated if: (1) reinstatement is agreed to in writing by the insured; or (2) the insured fails to pay any increased premium for providing such coverage after notice as specified in the legislation.
• Incorporates the broad definition of “insurer” used in the Terrorism Risk Insurance Act of 2002.

H.R. 6497

Summary: Provides that insurers that offer business interruption insurance coverage must make available additional optional coverage for insured businesses that:

• Covers losses that: (i) occurred because of business interruption due to any government order that required the business to cease its operations during a national emergency; and (ii) occur in an area in which the “national emergency applies and during the period of such application; and”
• Covers losses for a period “that begins upon the declaration of the national emergency and is not shorter than 30 days.”

The act will not require coverage for insured businesses “which has, during the period that the national emergency is in effect”—(1) involuntarily terminated any employee; or (2)  terminated the health insurance coverage of any employee.

An implicated policy may exclude coverage for “business interruptions resulting from national emergencies” only if “(1) insurer has received written statement from the insured that affirmatively authorizes such exclusion; or (2) the insured fails to pay any premium charged by the insurer for providing such coverage.”

Study on Establishment of Federal Backstop: The Federal Advisory Committee on Insurance would be required to “conduct a study regarding the effectiveness and efficiency of using a Federal backstop mechanism, private equity pools, risk assessments, and market pricing to reinsure insurers for excessive losses under coverage made available” under the act. 

House of Representatives

H.R. 7011

(Introduced by Rep. Carolyn B. Maloney) 

Summary: Establishes the voluntary Pandemic Risk Reinsurance Program and requires participating insurers, with respect to each calendar year, to:

• “make available, in all of its business interruption insurance policies, coverage for insured losses;” and
• “make available business interruption insurance coverage for insured losses that does not differ materially from the terms, conditions, amounts, limits, deductibles, or self-insured retentions and other coverage grants, limitations, and exclusions applicable to losses arising from events other than public health emergencies.”

“Insured loss” under the Act “means any loss resulting from a covered public health emergency that is covered by primary or excess business interruption insurance issued by a participating insurer if such loss occurs” in the U.S. and “during the period that the covered public health emergency for such area is in effect.”

Voluntary Participation:  “Each entity that meets the definition of insurer under this Act may participate in the Program.”

Conditions for Federal Payments: Payments will not be made by the Secretary with respect to insured losses covered by a participating insurer unless:

• The person that suffers the loss files a claim with its insurer;
• the “participating insurer provides clear and conspicuous disclosure to the policyholder of the premium charged for insured losses covered by the Program and the Federal share of compensation for insured losses under the Program,” with the required disclosure dependent on when the policy was issued;
• “in the case of any policy that is issued after the date of enactment of this Act, the participating insurer provides clear and conspicuous disclosure to the policyholder of the existence of the $750,000,000,000 cap” for insured losses;
• the “insurer processes the claim for the insured loss in accordance with the appropriate business practices, and any reasonable procedures that the Secretary may prescribe;” and
• the insurer submits this claim to the Secretary.

Reinsurance for Insured Losses: The Federal share of “insured losses of an participating insurer during each calendar year shall be equal to 95 percent of that portion of the amount of such insured losses that exceeds the applicable insurer deductible required to be paid during such calendar year.”  But “no compensation shall be paid by the Secretary … unless the aggregate industry insured losses for participating insurers resulting from such covered public health emergency exceed $250,000,000.”

Cap on Annual Liability: The Secretary will “not make any payment under this Act for any portion of the amount of such losses that exceeds $750,000,000.00.”

Funding: The Federal share of compensation for insured losses under this Program would be appropriated “out of funds in the Treasury” that are “not otherwise appropriated.”

Purpose: To establish a federal program “of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease, in order to—(1) protect consumers by addressing market disruptions and ensure the continued widespread availability and affordability of business interruption coverage … ; and (2) allow for a transitional period for the private markets to stabilize … .”

Exclusions “in a contract of a participating insurer for business interruption insurance that is in force on the date of enactment of this Act shall be void to the extent that it excludes losses that would otherwise be insured losses under this Program,” but the exclusions may be reinstated under certain conditions set out in the act.

Termination of Program: The Program under this Act would terminate on December 31, 2027.

Introduced on May 26, 2020 and referred to the House Committee on Financial Services.

Louisiana

Senate Bill No. 495

(Proposed by Carter)

Summary: Creates a Business Compensation Fund (the “Compensation Fund”) for the purpose of expediting certain property insurance claims for losses sustained as a result of the COVID-19 pandemic and emergency declaration. Insurers that opt in: (1) are protected from bad faith claims; (2) can limit their exposure to insureds that opt in; (3) avoid coverage litigation expenses with those insured; and (4) in exchange, agree not to dispute liability. Insureds that opt in avoid a coverage dispute, in exchange for agreeing to limit their insurance recovery. Specifically:

• Carriers writing commercial insurance in Louisiana can opt in by contributing to the Compensation Fund the greater of $50 million or 80% of the aggregate limits of all in-force commercial policies. This must be done within 60 days after expiration of the COVID-19 emergency declaration. Carriers that participate “shall be immune from claims of bad faith brought by any person seeking payment for claims under a policy written in this state for losses associated with the COVID-19 pandemic.”
• An insured under a commercial insurance policy in Louisiana may apply for a payment from the Compensation Fund if the “insured sustained loss of commercial income or revenue due to the imminent threat posed by COVID-19.” Such an insured, in satisfaction of all claims for such income or revenue losses, agrees to accept 80% of “actual losses up to the policy limits.”
• The participating insurer may challenge a claim as fraudulent and may contest the amount of a claim, but waives the right to contest liability. 

Louisiana

Senate Bill No. 506

(Proposed by Barrow)

Summary: Provides that any contract to insure a commercial or residential building shall include coverage for the cost of fumigating the building if a person residing or working therein has a positive diagnosis for COVID-19, “based upon ten cents per square foot of the area fumigated.”

Introduced on March 31, 2020.

Louisiana

House Bill No. 858

(Proposed by Duplessis)

Summary: Policies insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils, coverage for business interruption due to global virus transmission or pandemic, as provided in emergency proclamation(s) concerning the coronavirus disease 2019 pandemic. Further provides that:

• Applies to “policies issued to insureds with less than 100 full-time employees, in this state, and in force on the effective date of this Act.”
• “Insurers shall indemnify insured policyholders who have policies that provide the coverage required pursuant to this Section, subject to the limits of the insured's policy, for any loss of business or business interruption for the duration of the declared public health emergency.”
• Shall “be given prospective and retroactive application and shall be applied retroactively to March 11, 2020 to insurance policies described in Section 1 of this Act and in force on that date.”

Introduced on March 31, 2020.

Louisiana

Senate Bill No. 477

(Proposed by Ward, III)

(Reengrossed by Ward)

Summary: Revised bill requires every insurance policy “covering business interruption delivered or issued for delivery” in Louisiana on or after January 1, 2021 to “include a notice of all exclusions on a form prescribed by the commissioner of insurance.” 

• The form would need to be provided to every insurer and “signed by the named insured or his legal representative.”
• Once the form is signed and properly completed, it “creates a rebuttable presumption that the insured knowingly contracted for coverage with the stated exclusions.” 
• This form will remain valid for the “life of the policy and shall not require the completion of a new form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.”
• Changes to existing policies do “not create a new policy” and do not require a new form to be completed. A “new policy” under the bill means “an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.” 

Affected Policies:  “[A]ny property insurance covering any business interruption which occurs in [Louisiana] and involves a Louisiana business.”

Senate floor amendments read and adopted; read by title and passed by a vote of 31 to 4; motion to reconsider tabled; ordered re-engrossed and sent to the House on May 19, 2020.

Massachusetts

Senate Docket, No. 2888

(Proposed by Eldridge, Elugardo, Lewis, O’Connor & Pacheco)

Summary: Insurers may not deny business interruption claims based on COVID-19 being a virus, even if the relevant insurance policy excludes losses resulting from viruses or there being no physical damage to the property of the insured or to any other relevant property. Specifically, the proposed legislation provides:

• Notwithstanding the provisions of any other law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, notwithstanding the terms of such policy (including any endorsement thereto or exclusions to coverage included therewith) which includes, as of the effective date of this act, the loss of use and occupancy and business interruption in force in the commonwealth, shall be construed to include among the covered perils under such policy coverage for business interruption directly or indirectly resulting from the global pandemic known as COVID-19, including all mutated forms of the COVID-19 virus. Moreover, no insurer in the commonwealth may deny a claim for the loss of use and occupancy and business interruption on account of (i) COVID-19 being a virus (even if the relevant insurance policy excludes losses resulting from viruses); or (ii) there being no physical damage to the property of the insured or to any other relevant property.

Affected Policies: Policies issued to insureds that have

1. 150 or fewer full-time equivalent employees in the commonwealth.”
2. A policy in force on the effective date of the legislation or which becomes effective before the Governor rescinds the state of emergency declaration.

Insurer Reimbursement: Insurers required to pay coverage under the legislation may apply to the commissioner of insurance for relief/reimbursement which would be paid from funds collected as “one or more assessments in each fiscal year against licensed insurers in the commonwealth that sell business interruption insurance as may be necessary to recover the amounts paid, or estimated to be paid, to insurers” as relief/reimbursement.

Possible Penalties: Non-compliant insurers could be subject to penalties under Chapter 176D of the Massachusetts’ general laws, which regulates unfair practices in the insurance business.

Introduced on March 24, 2020.

Mass. S.B. 2655

Presented by James B. Eldridge with Nika C. Elugardo, Jack Patrick Lewis, Patrick M. O’Connor and “other members of the General Court for legislation to concern business interruption insurance.”

Summary: Requires coverage for business interruption that occurred because of the COVID-19 pandemic. Specifically, the act provides: 

• Notwithstanding the provisions of any other law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, notwithstanding the terms of such policy (including any endorsement thereto or exclusions to coverage included therewith) which includes, as of the effective date of this act, the loss of use and occupancy and business interruption in force in the commonwealth, shall be construed to include among the covered perils such policy coverage for business interruption directly or indirectly resulting from the global pandemic known as COVID-19, including all mutated forms of the COVID-19 virus.

The proposed legislation further provides that “no insurer in the commonwealth may deny a claim for the loss of use and occupancy and business interruption on account of (i) COVID-19 being a virus (even if the relevant insurance policy excludes losses resulting from viruses); or (ii) there being no physical damage to the property of the insured or any other relevant property.”

Subject to policy limits and any time limitation for business interruption coverage, the coverage under this act is to continue “until such time as the emergency declaration issued by the governor, dated March 10, 2020 … is rescinded … .”

Stated Purpose: Applies to policies that are

1. “issued to insureds with 150 or fewer full-time-equivalent employees in the commonwealth,” and
2. ldquo;in force on the effective date of this act, or that become effective prior to the date” on which the governor rescinds the emergency declaration.

Insurer Reimbursement: Insurers required to pay coverage under this act “may apply to the commissioner of insurance for relief and reimbursement.”  Funds for reimbursements shall come from assessments “against licensed insurers in the commonwealth that sell business interruption insurance.”

Michigan

House Bill 5739

Introduced by Rep. Elder

Summary: Would require insurers that offer business interruption policies in Michigan to include “coverage for business interruption due to the novel coronavirus (COVID-19).” Coverage under the proposed legislation must indemnify, “subject to the limits under the policy, for any loss of business or business interruption for the duration of the declaration of state of emergency under Executive Order No. 2020-04.”

Affected Policies: Applies to policies that are

1. “in force on the effective date” of this provision, and
2. “issued to an insured that has less than 100 eligible employees” in Michigan. An “eligible employee” means “a full-time employee who works a normal workweek of 25 or more hours.”

New Jersey

Assembly, No. 3844

(Assemblymen/women Freiman, Greenwald, Chaparro, Reynolds-Jackson, McKnight, Lopez, Wimberly, Mazzeo, Chiaravalloti, Jasey, Mejia, Jimenez, Swain, Zwicker)

Summary: Would implicitly override common terms contained in business interruption policies, such as exclusions for losses due to viruses and the requirement that an interruption in a policyholder’s operations be attributable to direct physical loss or damage to property. Specifically, the proposed legislation provides:

• Notwithstanding the provisions of any other law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption in force in this State on the effective date of this act, shall be construed to include among the covered perils under that policy, coverage for business interruption due to global virus transmission or pandemic, as provided in the Public Health Emergency and State of Emergency declared by the Governor in Executive Order 103 of 2020 concerning the coronavirus disease 2019 pandemic.

Stated Purpose: “Industry sources have indicated that global virus transmission and pandemic are generally excluded from the list of covered perils under the existing standard business interruption insurance policy.…This bill, then, is intended to hold harmless a certain portion of the business sector, which had the foresight to purchase business interruption insurance, for losses sustained as a result of the current health emergency, but for which no such coverage is currently offered."

Affected Policies: Policies issued to insureds that have

1. Fewer than 100 “eligible employees” (defined to mean “a full-time employee who works a normal work week of 25 or more hours”) in the State of New Jersey.
2. A policy in force on the effective date of the proposed legislation.

Insurer Reimbursement: An insurer paying claims under the proposed legislation “may apply to the Commissioner of Banking and Insurance for relief and reimbursement” to be paid from funds collected from companies engaged in the business of insurance in New Jersey (other than life and health insurers).

Introduced on March 16, 2020.

Subsequently tabled to allow input from insurers.

New York

A.  10226 (Assembly bill)

(Assembly members Robert Carroll and Patricia Fahy)

***

As amended on April 8, 2020

(Introduced by Carroll, Fahy, Griffin, Simotas, Epstein, Lentol, M.G. Miller, Pheffer Amato, Wright, Dinowitz, Ortiz, Thiele, Cusick, Barrett, Colton, Malliotakis, Magnarelli, Fall, and Multi-Sponsored by Englebright)

***

As amended on April 29, 2020

(Introduced by Carroll, Fahy, Griffin, Simotas, Epstein, Lentol, M.G. Miller, Pheffer Amato, Wright, Dinowitz, Ortiz, Thiele, Cusick, Barrett, Colton, Malliotakis, Magnarelli, Fall, Frontus, Glick, Paulin, Rozic, Jones, Jacobson, Niou, Simon, and Multi-Sponsored by Englebright and McDonough)

Summary: Requires coverage for business interruption due to COVID-19 state of emergency.  The proposed legislation, as amended provides:

Notwithstanding any provisions of law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, which includes, but is not limited to, the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.

The amended proposal also provides for automatic renewal of implicated policies that expire “during a period of a declared state emergency due to the coronavirus disease 2019 (COVID19) pandemic.” The automatic renewals are to be “at the current rate of charge.”  (Emphasis added).

The amended proposal also expressly states:

Any clause or provision of a policy of insurance insuring against loss or damage to property, which includes, but is not limited to, the loss of use and occupancy and business interruption, which allows the insurer to deny coverage based on a virus, bacterium, or other microorganism that causes disease, illness, or physical distress or that is capable of causing disease[,] illness or physical distress shall be null and void; provided, however, the remaining clauses and provisions of the contract shall remain in effect for the duration of the contract term.

(Emphasis added)

Affected Policies:  Policies issued to insureds that have “less than 250 eligible employees” on the effective date of the legislation, with “eligible employee” defined as “a full-time employee who works a normal work week of 25 or more hours.”

Insurer Reimbursement:  An insurer paying a claim under this section “may apply to the superintendent of financial services for relief and reimbursement,” to be paid from funds collected from “companies engaged in business pursuant to the insurance law.”

Introduced on March 27, 2020 and referred to Com. on Ins.

Amended on April 8, 2020, committee discharged, bill amended, ordered reprinted as amended, and recommitted to Com. on Ins.

Amended on April 29, 2020, again reported from said committee with amendments, ordered reprinted as amended and recommitted to Com. on Ins.

New York

S. 8178 (Senate bill)

Sen. Mayer

Notwithstanding any provisions of law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.

Affected Policies:  Applies to “policies issued to insureds with less than 100 eligible employees in force on the effective date of this act.”  An “eligible employee” means “a full-time employee who works a normal work week of 25 or more hours.”

New York

S. 8211 (Senate bill)

Sens. Gounardes and Mayer

***

As amended on May 1, 2020

Sens. Gounardes, Mayer, Kaplan, Kennedy, May, Persaud, and Sepulveda

Summary: Provides coverage for business interruption due to COVID-19 during the declared state emergency, providing: 

Notwithstanding any provisions of law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, which includes, but is not limited to, the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.

The bill would declare “null and void” any “clause or provision” in an implicated policy “which allows the insurer to deny coverage based on a virus, bacterium, or other microorganism that causes disease, illness, or physical distress or that is capable of causing disease[,] illness, or physical distress.”

The amended bill added definitions and defines “business” as “a business registered with the department of tax and finance or not-for-profit corporation registered with the Attorney General’s charities bureau.”

Affected Policies: This bill would apply to all “insureds with less than 250 eligible employees in force on the effective date of this act.” “Eligible employee” is defined as a “full-time employee who works a normal work week of 25 or more hours.”

Insurer Reimbursement: Insurers, including excess lines insurers, providing indemnification under the proposed law “may apply to the superintendent of financial services for relief and reimbursement” from funds collected “from the companies engaged in business pursuant to the insurance law.”

Automatic Renewal at Current Rate:  The proposed legislation provides that an implicated policy that expires “during a period of a declared state emergency due to the coronavirus disease 2019 (COVID 19) pandemic, shall be subject to an automatic renewal of the policy at the current rate of charge.”

Insured’s Income Loss Due to Loss of or Damage to Property Owned by Others: The amended bill would require “[e]very policy of insurance or endorsement thereto insuring against an insured’s business income loss resulting from loss, damage, or destruction of property owned by others” to cover “contingent business interruption during a period of a declared state emergency” due to the COVID-19 pandemic. If these policies expire “during a period of a declared state emergency due” to COVID-19, they would be “subject to an automatic renewal of the policy at the current rate of charge.”

Introduced on April 17, 2020; read twice and ordered printed; to be committed to the Committee on Insurance.

***

Amended on May 1, 2020, committee discharged, bill amended, ordered reprinted as amended, and recommitted to Committee on Insurance

New York

A. 10327 (Assembly bill)

Notwithstanding any provisions of law, rule or regulation to the contrary, every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.

Affected Policies:  The act would apply to insureds with business interruption policies if the insureds provide/operate specified health/human services and programs.

Ohio

House Bill No. 589

(Representatives Crossman & Rogers)

Summary: Would implicitly override common terms contained in business interruption policies, such as exclusions for losses due to viruses and the requirement that an interruption be attributable to direct physical loss or damage to property. Specifically, the bill provides:

• Notwithstanding any other law or rule to the contrary, every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, in force in this state on the effective date of this section, shall be construed to include among the covered perils under that policy, coverage for business interruption due to global virus transmission or pandemic during the state of emergency.”

Stated Purpose: “To protect small businesses from catastrophic losses caused by commercial decline necessary to prevent the spread of COVID-19.”

Affected Policies: Policies issued to insureds that have:

1. Their business is located in Ohio.
2. Employ 100 or fewer “eligible employees,” defined as “a full-time employee who works a normal work week of 25 or more hours.”
3. The policy of insurance must have been in force on the effective date of the proposed legislation.

Insurer Reimbursement: Insurers may apply to the Superintendent of Insurance for relief/reimbursement from a newly-created “Business Interruption Insurance Fund” which will be funded by assessments on insurers engaged in the business of insurance under Chapter 3937 of the Ohio Revised Code (Casualty and Motor Vehicle Insurance).

Introduced on March 24, 2020.

Pennsylvania

House Bill No. 2372

• Applies to policies “in force in this Commonwealth on March 6, 2020, which is the date of the Proclamation of Disaster Emergency concerning the coronavirus pandemic”
• The required coverage shall be “subject to the broadest or greatest limit and lowest deductible afforded to business interruption coverage under the insurance policy, for any loss of business or business interruption for the duration of the declaration of disaster emergency” declared by the Proclamation.
• Authorizes the commissioner “to impose upon, distribute among and collect from insurers engaged in providing property and casualty insurance in this Commonwealth, whether or not the property and casualty insurance specifically includes coverage for business interruptions, additional amounts necessary to recover the amounts” reimbursed to insurers that have paid claims under the required coverage.  Assessment is to be “in the proportion that the net written premiums received by each insurer subject to the apportionment under this section for insurance written or renewed on risks in this Commonwealth, during the calendar year immediately preceding, bears to the sum total of all the net written premiums received by all insurers writing that property and casualty insurance within this Commonwealth during that same calendar year, as reported.”

Pennsylvania

House Bill No. 2386

(Representatives Mehaffie, Kaufer, Quinn, Schlossberg, Rader, Staats, Burgos, Deluca, Stephens, Malagari, Ryan, Readshaw, Donatucci, Neilson And Keefer)

• The grant amount cannot exceed the amount of the insurance claim.
• The grants are to be paid out of monies appropriated for that purpose.
• Businesses receiving grants must remain open and not lay off employees. 

Pennsylvania

Senate Bill No. 1114

(Introduced by Hughes, Kearney, Fontana, Santarsiero, Tartaglione, Brewster, Schwank, Argall, Dinniman, Boscola, Leach, Iovino, Farnese, Mastriano, Collett, Costa, Muth and Blake)

Notwithstanding any other law, rule or regulation, a policy of insurance insuring against a loss related to property damage, including the loss of use and occupancy and business interruption, shall be construed to include among the covered perils coverage for loss or property damage due to COVID-19 and coverage for loss due to a civil authority order related to the declared disaster emergency and exigencies caused by the COVID-19 disease pandemic.

The bill defines “property damage” as “the direct physical loss, damage or injury to tangible property, as a result of a covered peril, including, but not limited to”:

(1) The presence of a person positively identified as having been infected with COVID-19.

(2) The presence of at least one person positively identified as having been infected with COVID-19 in the same municipality of this Commonwealth where the property is located.

(3) The presence of COVID-19 having otherwise been detected in this Commonwealth.

Limits: The bill provides that the coverage provided by the act applies as follows:

(1) Insureds classified as a small business shall receive 100% of the policy limit for eligible claims for covered losses.

(2) Insureds not classified as a small business shall receive 75% of the policy limit for eligible claims for covered losses.

Applicability: The act would apply to “active insurance policies with effective dates prior to March 6, 2020.”

Pennsylvania

House Bill No. 2386

Summary: Establishes a grant program to provide funds to businesses if:  (1) the business has submitted a claim under a business interruption insurance policy and the claim was denied; (2) the business demonstrates that it has been adversely impacted by the “COVID-19 disaster emergency”; and (3) the business is based in PA and “employs not more than 200 individuals.”

• The bill defines “business” as “any business, industry or trade operating with a physical location in this Commonwealth, regardless of whether that physical location is open to the public.”
• The grant amount may not exceed the amount of the insurance claim.
• A business may apply for the grant during the “COVID-19 disaster emergency and for 60 days after the COVID-19 disaster emergency is terminated.”
• Businesses receiving grants must remain open and not lay off employees “for the duration of the COVID-19 disaster emergency.”  If a grant recipient does not comply with this requirement it must repay the grant amount plus 10%.  

Introduced and referred to Committee on Commerce on April 6, 2020.

Reported from Committee on Commerce, as amended, April 21, 2020.  

Pennsylvania

Senate Bill No. 1127

“Property Damage” would be defined to include the situation where (1) someone “positively identified as having been infected with COVID-19” has been present on a business property, or (2) the business property is located “in a municipality of this Commonwealth in which at least one person present in that municipality has been positively identified as having been infected with COVID-19, or in which the presence of the COVID-19 coronavirus has otherwise been detected.” 

A “Communicable disease” would be deemed to be actually present on a property if (1) “a person positively identified as having been infected with COVID-19 has been present in, or if the COVID-19 coronavirus has otherwise been detected in,” a business property, or (2) a business property is “located in a municipality of this Commonwealth in which at least one person in that municipality has been positively identified as having been infected with COVID-19, or in which the presence of the COVID-19 coronavirus has otherwise been detected.”

The bill specifies that the Pennsylvania Governor’s March 19, 2020 order closing businesses constitutes an order of civil authority “under a first-party insurance policy limiting, prohibiting or restricting access to non-life-sustaining business locations in this Commonwealth as a direct result of physical damage at or in the immediate vicinity of those locations.”  The bill similarly provides that the Governor’s order constitutes an order prohibiting ingress to and egress from property.

Loss of Market Exclusions, and similar exclusions, “may not be interpreted to apply to preclude coverage for COVID-19-related losses if one of the reasons for reduced customer demand for a policyholder’s goods or services is the same COVID-19 pandemic that gives rise to the policyholder’s losses for which coverage is sought.”

Policies Affected: The bill would apply to (1) policies effective on or before March 6, 2020 and (2) “insurance companies that provide coverage against property damage, loss of use or occupancy or business interruption, and similar coverages, with respect to property” in Pennsylvania.

Pennsylvania

House Bill No. 2386

(Representatives Mehaffie, Kaufer, Quinn, Schlossberg, Rader, Staats, Burgos, DeLuca, Stephens, Malagari, Ryan, Readshaw, Donatucci, Neilson, Keefer, Frankel, Zabel, and Deasy)

Summary: Establishes a “program” to “encourage businesses to acquire business interruption insurance coverage.” More specifically, the legislation would establish a program to “educate businesses on the benefits of business interruption insurance coverage” and “promote the purchase of business interruption insurance and may provide financial assistance to eligible businesses to partially offset business interruption insurance premiums.”

• Financial assistance to offset business interruption insurance premiums will be “subject to the availability of funding.”
• To fund this section, the Department is allowed to use funds “specifically appropriated by the General Assembly for purposes of this section and any funds, contributions or payments which may be made available … by the Federal Government, another state agency, or any public or private source for the purpose of implementing this section.”

Introduced and referred to Committee on Commerce on April 6, 2020

Reported from Committee on Commerce, as amended, April 21, 2020

Reported from Committee on Finance, as amended, May 27, 2020.

Senate Bill No. 1188

(Senators Kimpson, Senn, and Hutto)

Summary: In-force property policies that include coverage for loss of use and occupancy, or business interruption, shall be construed to include, among the covered perils such loss directly or indirectly resulting from the global pandemic known as COVID-19, “including all mutated forms of the COVID-19 virus.”
The required coverage is subject to “monetary limits of the policy and any maximum length of time set forth in the policy.” However, insurers may not deny such a claim, including, but not limited to, denials on account of: 

• COVID-19 being a virus, even if the relevant insurance policy excludes losses resulting from viruses.
• There being no physical damage to the property of the insured or to any other relevant property.
• Orders issued by any civil authority, or acts or decisions of a governmental entity.

Insurers required to provide coverage may apply to the insurance department for “for relief and reimbursement from funds collected and made available for such purpose as provided in this section.”

The insurance department is: (1) directed to “establish procedures and standards to protect against fraudulent claims for reimbursement and appropriate safeguards for insurers to use in the review and payment of such claims by their insureds;” and (2) “authorized to make assessments “against licensed insurers in the State as may be necessary to recover the amounts paid or estimated to be paid pursuant to this section.”

“The amount to be assessed shall be made against all licensed domestic companies and foreign companies in proportion to their net premiums written and annuity considerations in the State as shown in the annual report of each of said insurers filed with the department.” “Assessments under this section shall be charged to the normal operating cost of each company.”