United States: A Plague A' Both Your Clauses: Insurance Probably Won't Cover Businesses Stung By Zika

Last Updated: August 17 2016
Article by John A. Camp

During the past several months, Zika virus has rapidly spread across Latin America and into the United States. While Congressional action has stalled, the Centers for Disease Control and Prevention (CDC) has issued a number of travel warnings, including one stating that "[p]regnant women should not travel" to the popular Wynwood neighborhood of Miami. This warning will almost certainly harm the many restaurants, art galleries and retail shops that cater to Wynwood's vibrant arts scene—and many of those businesses will be looking to their insurers to make them whole. But Zika differs from the natural disasters that have historically been responsible for widespread business interruptions, and the policies of most of Wynwood's merchants are unlikely to provide coverage for this event.

Zika Comes To Florida

The Zika virus is a relative of the dengue, yellow fever and West Nile viruses, named for the Ugandan forest where it was first isolated about 70 years ago. During the past year, it has been carried across Brazil and Central America by the Aedes aegypti, among other mosquitoes, and definitively associated with microcephaly in the children of infected mothers and Guillain–Barré syndrome in adults.

According to the CDC, as of July 27, 2016, 1,657 travelers had entered the United States after having been infected by Zika in other countries. (Hundreds of such cases were found in each of New York and Florida.) At that time, no person had contracted the virus through mosquito transmission within the U.S. By August 1, that statistic had changed: Florida officials identified 14 cases of mosquito-borne Zika virus, all of them in the Wynwood neighborhood of Miami.

Wynwood Sets A Precedent

Twenty years ago, Wynwood, hard by I-95 and north of downtown, was a collection of run-down warehouses, shuttered factories and empty storefronts. Today, it is a thriving district—the hub of visual arts in Miami—with galleries, retail shops, restaurants, bars, an urban park and the Wynwood Walls: block after block of graffiti and other art work, painted on 80,000 square feet of the walls of those once-abandoned commercial structures. Wynwood has become a must-see tourist destination—with walking tours of the Wynwood Walls and monthly gallery walks—as well as the go-to neighborhood for Miami's young and hip, with an art-inspired nightlife featuring outdoor patios and al fresco dining. And now it's home to Aedes aegypti.

The Florida Department of Health has identified Wynwood as ground zero for mosquito-borne Zika in Miami: all 14 cases identified on August 1 were found in Wynwood. In response, the CDC issued a travel advisory, stating (among other warnings) that "pregnant women should not travel to" Wynwood, and that couples who have visited the area should wait at least 8 weeks before trying to get pregnant.

According to the New York Times, this is the first time the CDC has warned people not to travel to a location in the continental U.S. In general, the CDC warns anyone in an area where mosquito-borne Zika virus is present to stay in screened-in or air-conditioned rooms.

Cover My Interruption

The presence of infected mosquitoes and the publicity surrounding the CDC's warning are likely to have a devastating effect on Wynwood's outdoor cafes, walking tour companies, art galleries and other businesses that rely on a steady stream of foot traffic. Most of these businesses are insured by commercial property or "all-risk" insurance policies that provide (among other things) coverage for business interruption. Other tourist-dependent businesses have been shut down by natural disasters, such as Sandy and Katrina, and many of them were reimbursed by their insurers. Can a business owner in Wynwood look to her business interruption coverage to make up the economic losses caused by a mosquito-borne pestilence?

The answer is probably "no."

Business interruption coverage pays the cost of restoring normal operations—as well as the profits lost before the restoration is complete—after a covered event has temporarily prevented an insured business from carrying out its regular commercial activities. A typical provision covering lost income reads something like this:

We will pay the actual loss of 'business income' you sustain due to the necessary suspension of your 'operations' during the 'period of restoration.' The suspension must be caused by direct physical loss of or damage to Covered Property and result from a Covered Cause of Loss.

Thus, a typical provision contains critical limitations: not every "suspension of operations" will trigger coverage. Rather:

  • the business interruption must have been caused by physical loss or damage;
  • the damage must be to covered property; and
  • the damage to covered property must be the result of a covered cause of loss.

For Wynwood businesses harmed by the Zika outbreak, the critical missing element is direct physical loss of or damage to covered property. Courts have routinely held that an insured seeking business interruption coverage must establish that the loss was caused by property damage, and not by some other factor or factors. See, e.g., Roundabout Theatre Co., Inc. v. Cont’l Cas. Co., 302 A.D.2d 1 (1st Dept. 2002); Harry’s Cadillac-Pontiac-GMC Truck Co., Inc. v. Motors Ins. Corp., 486 S.E.2d 249, 252 (N.C. Ct. App. 1997).

Furthermore, although the CDC's domestic travel advisory may be unprecedented, insurance claims based on government warnings that suppressed an insured's business have been litigated before. In 2006, the FDA issued an alert, advising consumers not to eat "bagged fresh spinach," due to an outbreak of E. coli that was potentially linked to that product. A company called Fresh Express, Inc., which was the nation's largest supplier of bagged spinach, immediately stopped harvesting, processing and distributing the vegetable. Two weeks later, after the source of the outbreak had been identified, the agency withdrew its alert. Fresh Express was not the source of the E. coli outbreak, and it had not sold contaminated spinach, but it nevertheless suffered a significant loss of business from the temporary withdrawal of its product. In Fresh Express Inc. v. Beazley Syndicate, 131 Cal. Rptr. 3d 129 (Cal. App. 2011), the company sought to recover those losses under a "Total Recall and Brand Protection" insurance policy, after the insurer had denied coverage.

Under the policy at issue, "Accidental Contamination" was covered as an "Insured Event," but the policy defined "Accidental Contamination" as

Error by [Fresh Express] in the manufacture, production, processing [or] preparation ... of any Insured Products ... which causes [Fresh Express] to have reasonable cause to believe that the use or consumption of such Insured Products has led or would lead to ... bodily injury, sickness, disease or death ...

Fresh Express argued that the "Insured Event" in this case was its withdrawal of spinach, following the recognition that there was "reasonable cause to believe" its products had caused or would cause harm. In the company's view, "[n]othing in the Policy require[d] that the products actually cause the outbreak."

Reversing a verdict in the policyholder's favor, a California Court of Appeal held that the withdrawal of the company's product in response to an FDA advisory was not an "Accidental Contamination" (and, therefore, not an "Insured Event") within the meaning of the policy, because it had not involved an error in the processing or preparation of Fresh Express's own spinach.

In other words, the language of the policy did not extend coverage to market conditions or product scares that originated outside the operations controlled by the insured. The same might be said of the property damage requirement in a typical business interruption clause.

More Obstacles

Another problem potentially confronting Wynwood's businesses is that many first-party property policies contain "loss of market" exclusions. Such an exclusion typically reads something like this:

This policy does not insure against loss or damage caused directly or indirectly by loss of market.

"The loss of market exclusion relates to losses resulting from economic changes occasioned by, e.g., competition, shifts in demand, or the like...." Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 279 F. Supp. 2d 235, 240 (S.D.N.Y. 2003). Wynwood's Zika scenario would seem to involve precisely this kind of loss. Thus, even without the standard limitations on business interruption coverage, business owners might still find that the loss of tourism in Wynwood falls within an express exclusion in their polices.

What about the fact that a government agency has advised people to avoid Wynwood? As Superstorm Sandy bore down on the East Coast in October 2012, state authorities issued mandatory evacuation orders, affecting thousands of businesses that suspended operations and shuttered their stores, restaurants and offices. Many first-party property policies with business interruption coverage contain so-called "civil authority" clauses, which provide coverage for actual losses sustained when access to real property is prohibited by order of civil or military authority. Importantly, this coverage applies, even if the covered property suffers no damage during the period when access is prohibited. Mandatory evacuations, government-imposed curfews and the like are the kinds of events that potentially trigger civil authority provisions.

This type of provision is typically limited, however, in two ways.

First, access to the covered property must have been prohibited because of a covered peril affecting property of the same type—for example, potential storm damage to restaurants and shops. Second, the insured peril must have occurred within a specific radius—1 mile, 5 miles, etc.—of the insured's property.

Sometimes, policyholders argue that the government has constructively barred access to their businesses. After the attacks on the World Trade Center on September 11, 2001, for example, many business sought coverage for lost income that was unrelated to the physical destruction in lower Manhattan, but, rather, resulted from the temporary ban on air travel imposed by the Federal Aviation Administration. In Paradies Shops, Inc. v. Hartford Fire Ins. Co., 2004 WL 5704715 (N.D. Ga. Dec. 15, 2004), an operator of airport retail shops at locations around the country sought coverage for its lost income, contending that the FAA had effectively prohibited access to its shops, since it had deprived the public of any reason to visit an airport.

The court found, however, that the plaintiff failed to prove that access to any of the shops had been specifically prohibited by any civil authority. Additionally, the court found that the plaintiff could not show that the FAA's order was issued as a result of the danger of physical loss to similar properties. Rather, the "ground stop order was issued as a result of the threat of additional terrorist acts involving the nation's airlines...." Coverage, in short, was unavailable. See also Southern Hospitality, Inc. v. Zurich American Ins. Co., 393 F.3d 1137 (10th Cir. 2004) (rejecting claim for coverage under civil authority provision, where travelers were unable to reach hotels because of grounding of flights); Syufy Enterprises v. Home Ins. Company of Indiana, 1995 WL 129229 (N.D. Cal. March 21, 1995) (rejecting civil authority-based business interruption claim for movie theater owner affected by post-riot curfew, because "the general curfews did not prohibit access to the theaters because of damage to adjacent property").

Conclusion

The presence of Zika virus in Wynwood has potentially tragic consequences. It will certainly have a detrimental effect on businesses that rely on foot traffic, tourists, diners and club-goers. But it does not appear that traditional insurance vehicles afford any coverage for the income those businesses will almost certainly lose.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions