The top courts in Delaware , Connecticut , Iowa , Louisiana , Massachusetts , Nevada , New Hampshire , Ohio , Oklahoma , South Carolina , Washington , Wisconsin , New Jersey , New York , Pennsylvania , California and Maryland as well as a superior court in the District of Columbia have all sided with insurers . The Vermont Supreme Court ' s September 2022 decision to revive a shipbuilder ' s coverage suit stands alone .
" A large number of the cases where policyholders have come out on the losing end have involved the question of whether the COVID virus constitutes ' physical loss or damage ,'" David Shargel of Bracewell LP , who represents policyholders , told Law360 . " That ' s an uphill battle because it typically doesn ' t ."
Peri Alkas , who represents insurers for Phelps Dunbar LLP , said the string of losses is the result of policyholders seeking to recoup their pandemic losses through their insurance despite the plain and unambiguous language of their policies , which would not extend losses for a virus that didn ' t directly damage property .
" Just being prevented from using the property in the manner intended is not going to be sufficient to turn to coverage , which is what it has always been ," she said , adding that loss-of-use because of government shutdown orders was an economic loss rather than a covered expense .
Even cases that survived major decisions have been felled by exhaustive legal costs piling up well into the second year after the World Health Organization ended its designation of COVID-19 as a public health emergency of international concern . That has culled the remaining pool of litigants seeking coverage .
" The ones that are still going , it ' s just because there is so much money at stake — it ' s worth it for them to keep trying ," Alkas said .
Jurisdictions , Coverage Issues Remain Unresolved Though many courts have had their say , the fight lives on in some jurisdictions .
In Texas ' Baylor College of Medicine v . Underwriters et al ., a Harris County court freed some insurers from a dispute based on their " pollutant and contaminate " exclusions , while denying an exit to other insurers with contamination or microorganism exclusions .
Following a $ 45 million jury award in favor of Baylor , the second group of insurers is asking the state ' s 14th Court of Appeals to find that the university failed to present evidence of physical loss or property damage , leaning on a decision from the state ' s Fifth Court of Appeals for support .
" I think we ' re all very anxious to see how the Texas appellate court is going to rule on this , and if it goes to the Supreme Court , how the Supreme Court will rule ," Alkas said .
Likewise , alternate policy language poses a more difficult challenge for insurers than the standard property policies , which courts have largely dismissed early into proceedings .
" There are still cases where the policy language is different than some of the earlier cases and therefore merits a different look than some of the more standard-form policies ," Sherilyn Pastor of McCarter & English ' s insurance recovery group told Law360 .