Florida Gov Signs Sweeping COVID-19 Liability Protections Into Law

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 29, 2021, Florida Gov. Ron DeSantis signed a bill that protects businesses, governments, and healthcare providers in Florida from COVID-19 lawsuits if they make a reasonable effort to follow guidelines to prevent the spread of coronavirus (whatever that means). Specifically, the measure gives civil immunity to corporations, hospitals, nursing homes, government entities, schools, and churches as long as the alleged negligence doesn’t involve gross negligence or intentional misconduct. The House Passed S.B. 72 on March 26, in an 83-31 vote, and DeSantis signed it the same day he received it from the Legislature.

Why doesn’t this conflict with the Florida Governor’s ban on any mandatory masking, vaccination, or vaccination “passport” requirements? This is very unclear. Perhaps the courts will need to straighten it out.


Details of Senate Bill 72.

The new law establishes significant legal hurdles for individuals who want to sue businesses and health care professionals over coronavirus-related injuries. Plaintiffs who file suit will need to show that the defendant deliberately ignored public health safety guidelines. They will also need a signed affidavit from a doctor stating with reasonable certainty that injury or death caused by COVID-19 was a direct result of the defendant’s actions. Does this sound arbitrary and capricious to anyone other than me?

Now how can a doctor or anyone else make a statement like the one required by the law? How does a doctor know where the patient has been or with whom the patient has been in contact the last fifteen days? How is a physician going to conduct contact tracing and figure out where the patient’s COVID-19 came from? This is very unclear. Perhaps the courts will need to straighten it out.

The law states that it will apply retroactively to the beginning of the pandemic. One must ask if this is an ex post facto law prohibited by the U.S. Constitution (Art. I, § 10, cl. 1.) and the Florida Constitution (Art. 1, § 10)? Additionally, the new law establishes a one-year limitation period to sue from the date of death, hospitalization, or COVID-19 diagnosis that forms the basis of the claim. Boy, this should really throw a big stumbling block in front of any potential plaintiff trying to get into court. (Note: Yes, I know that the federal prohibition on ex post facto laws was held to apply to criminal laws.)

“Over the course of the past year, our state’s businesses, health care providers, and other organizations have been forced to operate in fear of frivolous lawsuits with no merit threatening their livelihoods. As we move forward in our state’s economic recovery, this piece of legislation will provide Floridians with greater peace of mind as they go to work, go to school, and go about their daily lives,” DeSantis said applauding the quick passage of the legislation.

View S.B. 72 here.

To read about a recent case in Florida involving a COVID-19 death lawsuit, click here to read my blog.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations. We do NOT represent plaintiffs in COVID-19 injury suits, however.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hale, Nathan. “Fla. Gov. Signs Sweeping COVID-19 Liability Protection Law.” Law360. (March 29, 2021). Web.

Kang, Y. Peter. “Fla. COVID-19 Biz Liability Shield Bill Sent To Gov.’s Desk.” Law360. (March 26, 2021). Web.

NBC 6 Miami. “Florida Governor Signs COVID-19 Liability Protection Bill.” AP News. (March 29, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2021 The Health Law Firm. All rights reserved.

Texas Hospital’s COVID-19 Vaccine Mandate Upheld by Federal Court

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law

As some states lift COVID-19 restrictions, the business community is still grappling with the dynamic between the COVID-19 vaccine and workplace operations. To address this, some U.S. employers have elected to adopt mandatory vaccination policies. These policies, in essence, require that, subject to a few exceptions, all employees must receive the COVID-19 vaccine as a condition of continued employment.

Not surprisingly, we see various legal challenges to mandatory COVID-19 vaccination policies across the country. On June 12, 2021, a federal court in Texas became the first to rule on the permissibility of such policies enforced by private employers. In a landmark ruling, the court stated that mandatory workplace vaccination policies are lawful under Texas and federal law and may be enforced as a condition of continued employment.


The Court’s Ruling on Mandatory Vaccination Policies.

The lawsuit, Bridges v. Houston Methodist Hospital, was initially filed on behalf of 117 employees after their employer, Houston Methodist Hospital, instituted a policy requiring employees to receive a COVID-19 vaccine as a condition of continued employment. Employees who were not vaccinated by the deadline were to be placed on a two-week unpaid suspension to allow them to comply with the policy. Under the policy, those who ultimately did not comply would be terminated.

In the law suit challenging the employer’s policy, the Plaintiffs asserted: (1) the employees whose employment was terminated as a result of this policy were wrongfully terminated in violation of Texas law, and (2) the vaccine mandate violated public policy of the state of Texas.

Texas Wrongful Termination Claim.

Under Texas law, the court found that firing an employee who is unwilling to comply with an employer’s mandatory COVID-19 vaccine policy does not constitute wrongful termination. Texas law only protects employees who are fired for refusing to commit an illegal act at the request of their employer. The court reasoned that receiving the vaccine is not an illegal act given the U.S. Supreme Court’s rulings upholding involuntary quarantines and mandatory vaccines.

Violation of Public Policy.

The court dismissed the plaintiffs’ public policy arguments because, according to the court, Texas law does not recognize a public policy exception to the at-will employment doctrine. Additionally, the court noted that a mandatory vaccine requirement is consistent with public policy. The Supreme Court has previously held that state-imposed quarantine and vaccination requirements do not violate due process of law.

The court held that the plaintiffs were not being coerced to get the vaccine but were being given a basic choice by its employer: get the vaccine so the hospital could safely continue its business of saving lives or seek employment elsewhere.

Lastly, the court also cited recent Equal Employment Opportunity Commission (EEOC) guidance in its decision. The guidance states that employers can require employees to be vaccinated, subject to the obligation to provide reasonable accommodations to employees with legitimate medical or religious reasons for not being vaccinated. Click here to view.

To view the court’s order in full, click here.

Important Takeaway From This Court Decision.

While there are sure to be future legal challenges to mandatory workplace vaccination policies, this decision provides strong support for their use and permissibility. However, even with this ruling, employers with policies need to be mindful of their obligations and potentially provide reasonable accommodations to employees with disabilities or sincerely held religious beliefs that prevent them from receiving the COVID-19 vaccine. Of course, we will see numerous legal challenges of all kinds to these decisions.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations. We do NOT represent plaintiffs in COVID-19 injury suits, however.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Downie, Alex. “Federal Court Upholds Employer’s COVID-19 Vaccine Mandate.” The National Law Review. (June 15, 2021). Web.

Brown, Amanda, Goldstein, Mark. “In first-of-its-kind decision, federal court rules that mandatory workplace COVID-19 vaccine policies are lawful.” Employment Law Watch. (June 16, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2021 The Health Law Firm. All rights reserved.

 

Florida Dentist’s COVID-19 Interruption Insurance Claim Dismissed by Judge

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Judge Dismisses Dentist’s COVID-19 Business Interruption Insurance Claim in Florida

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Florida Dentist’s COVID-19 Business Interruption Insurance Claim Dismissed

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.


Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.


Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.


Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.


Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

 

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

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