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New California Laws Related to Workers’ Compensation and Workplace Notices Expand COVID-19 Relief for Workers

New California Laws Related to Workers’ Compensation and Workplace Notices Expand COVID-19 Relief for Workers

On September 17, California Governor Gavin Newsom signed into law two worker protection bills, AB 685 and SB 1159.  AB 685 creates new requirements for employers to notify local and state public health officials of COVID-19 cases in the workplace.  SB 1159 expands access to workers’ compensation to certain first responders, health care workers, and employees who test positive for coronavirus (COVID-19) due to an outbreak at work. 

AB 685 provides that if an employer receives notice that an individual who tested positive for COVID-19 or is subjected to an isolation order was in the workplace while considered potentially infectious, the employer must provide notice to all workers within one business day of potential exposure to COVID-19.  The notice must contain information about COVID-19 related benefits the employees are entitled to and include the employer’s disinfection and safety plan.  Employers must also notify local public health officials within 48 hours of “outbreaks” in the workplace, as defined by the State Department of Public Health.  AB 685 takes effect in January 2021.  There are exceptions to these reporting requirements for certain employees, including, but not limited to, some health care workers who work directly with COVID-19 patients. 

AB 685 also gives the California Division of Occupational Safety and Health authority to shut down businesses it believes are exposing workers to the risk of infection to the point that there is an imminent hazard to employees.

 SB 1159 creates a presumption that a covered worker’s illness or death from COVID-19 is work-related and entitles them to workers’ compensation.  Employers have the burden of rebutting this presumption by pointing to measures they have taken to reduce the potential transmission of COVID-19.  For workers in health care facilities who do not provide direct patient care (and custodial employees of health care facilities), there is no presumption if the employer can show that the employee did not come into contact with a patient who tested positive in the last 14 days. 

In addition to first responders and health care workers, the law also applies to workers who test positive for COVID-19 during an outbreak at their workplace, as defined by the bill.  SB 1159 took effect immediately upon signing. 

The rebuttable presumption under the law remains in effect until January 2023.  Governor Newsom said in an announcement that the legislation “will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”

California employers must prepare to respond to any indication that an employee has contracted COVID-19 in the workplace.  For more information about COVID-19 employer obligations, you may contact the Minami Tamaki Coronavirus (COVID-19) Task Force online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal advice.  Information in this article may not constitute the most complete or up-to-date legal or other information.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

New Article in Plaintiff Magazine by Lisa Mak, Claire Choo

New Article in Plaintiff Magazine by Lisa Mak, Claire Choo

Minami Tamaki LLP attorneys Lisa P. Mak and Claire Y. Choo authored an article, “The Right Fit,” sharing advice on mediator selection for plaintiffs’ attorneys in the August 2020 issue of Plaintiff Magazine.

From the article introduction: “With the high costs and risks of litigation, mediation can be a good opportunity to resolve legal disputes at various stages of a case. While preparation, process, and strategy are critical for mediations, another important factor is which mediator you choose for your case. Carefully choosing a mediator who is a good fit can increase your chances of a successful mediation.”

Plaintiff Magazine is a widely read legal industry publication reaching more than 5,000 trial lawyers in Northern and Central California.

Read the article by Lisa and Claire here.

NFL Concussion Class Members Allege Racial Bias in Settlement Administration

NFL Concussion Class Members Allege Racial Bias in Settlement Administration

Minami Tamaki LLP is representing former National Football League (“NFL”) players regarding the class action settlement in the matter In Re: National Football League Players’ Concussion Injury Litigation, MDL No. 2323.  The settlement resolved allegations that the NFL was responsible for brain injuries and long-term neurological problems suffered by former professional football players. Since approval of the settlement, players have filed claims through the settlement program, which has a duration of 65 years.  

On August 25, 2020, The New York Times reported that retired NFL players Najeh Davenport and Kevin Henry have filed actions accusing the NFL of discriminating against Black players who filed dementia-related claims through the settlement program. 

Davenport and Henry allege that the NFL has been paying claims under the settlement using a formula that “explicitly and deliberately discriminates on the basis of race.”  The actions allege that Black players are “automatically assumed (through a statistical manipulation called ‘race norming’) to have started with worse cognitive functioning than White former players” when their claims are evaluated for a qualifying diagnosis of neurocognitive impairment. 

The two players allege that under this formula, if a Black former player and a White former player receive the same scores on costs of cognitive functioning, the Black player is presumed to have suffered less impairment.  The Black player is therefore less likely to qualify for compensation under the NFL concussion settlement. 

The NFL has denied Davenport and Henry’s allegations.  The action is venued in the U.S. District Court for the Eastern District of Pennsylvania.

While Minami Tamaki LLP is not affiliated with the Davenport and Henry filings, we believe as a general matter that any parties experiencing discrimination of any kind should fully explore their legal options.

Individuals seeking information on the settlement in the In Re: National Football League Players’ Concussion Injury Litigation matter can set up a free consultation with Minami Tamaki by contacting us at (415) 788-9000 or through our online form.

Five Minami Tamaki Attorneys Recognized in 27th Edition of The Best Lawyers in America

Five Minami Tamaki Attorneys Recognized in 27th Edition of The Best Lawyers in America

Minami Tamaki LLP Partners Minette Kwok, B. Mark Fong, Olivia Serene Lee, Suhi Koizumi, and Senior Counsel Dale Minami were selected by their peers for inclusion in the 27th Edition of The Best Lawyers in America.

Minette, Olivia, and Suhi were selected for inclusion in the practice area of Immigration Law. It is Minette’s seventh, Olivia’s fourth, and Suhi’s second listing on The Best Lawyers in America rankings.

Dale and Mark were selected for the Personal Injury Litigation – Plaintiffs list for the eighth year in a row.

These individual awards qualify Minami Tamaki LLP for consideration by the U.S. News/Best Lawyers “Best Law Firms” list.

The firm has been recognized six times on the “Best Law Firms” rankings, which are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

Best Lawyers is a respected peer review publication in the legal profession. Recognition in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers.

The Best Lawyers lists of outstanding attorneys are compiled by conducting exhaustive peer review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for recognition in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain in each edition.

Lawyers are not permitted to pay any fee to participate in or be recognized by Best Lawyers.

Minami Tamaki Attorneys Named to 2020 Super Lawyers

Minami Tamaki Attorneys Named to 2020 Super Lawyers

TOP ROW (L-R): Donald K. Tamaki*; Minette A. Kwok*; Dale Minami* Top 100; B. Mark Fong*; Olivia Serene Lee**; MIDDLE ROW (L-R): Lisa P. Mak**; Seema Bhatt**; Suhi Koizumi*; Sean Tamura-Sato**; La Verne A. Ramsay; BOTTOM ROW (L-R): Dian Sohn; Angela C. Mapa; Claire Y. Choo; Judy Hinh Wong; Leyla Mostafavi – *Chosen to 2020 Super Lawyers **Chosen to 2020 Rising Stars 

We’re proud to announce that nine of Minami Tamaki LLP’s attorneys were selected as Northern California Super Lawyers and Rising Stars for 2020. Two of our Partners and our Senior Counsel have been named Northern California Super Lawyers for the last 17 consecutive years.

PERSONAL INJURY 
Dale Minami (Top 10, 2013-2018; Top 100, 2007-2020; Super Lawyers, 17 years) 
B. Mark Fong (Super Lawyers, 11 years) 
Seema Bhatt (Rising Stars, 4 years) 

IMMIGRATION AND NATIONALITY LAW 
Minette A. Kwok (Top 50 Women Northern California, 2014-2016; Super Lawyers, 17 years) 
Olivia Serene Lee (Rising Stars, 7 years) 
Suhi Koizumi (Super Lawyers, 2 years; Rising Star, 8 years) 

CONSUMER AND EMPLOYEE RIGHTS 
Sean Tamura-Sato (Rising Stars, 8 years) 
Lisa P. Mak (Rising Stars, 6 years) 

CORPORATE/NONPROFIT 
Donald K. Tamaki (Super Lawyers, 17 years) 

Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is independent, and attorneys cannot purchase placements on the list.

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

On Monday, June 15, 2020, the U.S. Supreme Court, in a 6-3 decision in Bostock v. Clayton County, Georgia, ruled that an employer who fires a worker merely for being gay or transgender violates Title VII. 

Title VII is the federal civil rights statute that makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). 

Specifically, the Supreme Court stated that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, because “[s]ex plays a necessary and undisguisable role in the decision,” the termination of such an employee is a violation against the Title VII protection against discrimination based on sex. 

The Court also affirmed that, as with any claim of discrimination based on sex under Title VII, an employer cannot escape liability by citing some other factor that contributed to the employment decision—if sex (and now, sexual orientation or gender identity) was one of the reasons for that decision, that violates Title VII.  The Court’s decision today extends workplace anti-discrimination protections to gay and transgender workers across the country. 

In California, protections against discrimination based on sexual orientation and gender identity are not new for most employees.  While this recent U.S. Supreme Court case decided that discrimination against homosexual and transgender individuals was discrimination based on sex, California’s Fair Housing and Employment Act (FEHA) had already explicitly stated that it is illegal for an employer to discriminate against a person based on, among other traits, sex, gender, gender identity, gender expression, and sexual orientation.  However, FEHA does not apply to federal employees in California.  With this recent Supreme Court decision, federal employees in California will now be protected from discrimination based on sexual orientation or gender identity under Title VII.

Other Questions?

For more information on workplace discrimination, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Photo by Alex Jackman via Unsplash.

New in ABA Journal Character Witness series: ‘A Life of Fighting Injustice’

New in ABA Journal Character Witness series: ‘A Life of Fighting Injustice’

The ABA Journal Character Witness series explores legal and societal issues through the first-person lens of attorneys in the trenches who are, inter alia, on a mission to defend liberty and pursue justice. The latest installment is “A life of fighting injustice“.

BY DALE MINAMI

I am a third-generation Japanese American. My grandparents emigrated from Southern Japan in the early 1900s seeking “streets of gold” and fleeing deteriorating conditions in their home country. My parents were born in California, citizens by birth. But they were incarcerated with their families during World War II, solely because of their ancestry: first in fetid horse stalls, and later in dismal prisons in the Arkansas swamplands. I was born at the Japanese Hospital in East Los Angeles, the only hospital that admitted Japanese doctors then. My father was a farmer, a gardener and the owner of a small sporting goods store. My mother worked there and at home. I have two older brothers who taught me lessons involving books, sports and unwanted violence upon my person—all valuable lessons later in life.

My parents rarely talked about their degrading incarceration experience, but by their example I was taught to honor the Founding Fathers’ prescription that all Americans are created equal and should be treated accordingly. But watching the civil rights movement unfold on television in the early 1960s, when peaceful African American demonstrators were attacked by vicious dogs and water cannons just because they wanted to eat at a restaurant, utterly confused me. As did the Watts rebellion in 1965—witnessing Los Angeles seemingly burning down, ignited by the frustrations of African Americans whose “American dream” was really a nightmare.

Year of unrest

I could not reconcile the elegant rhetoric of the American promise with such appalling events and with the subtle racism I experienced at the University of Southern California. I graduated in political science with no marketable skills besides selling Converse athletic shoes. My best option was to attend law school. So in 1968, I stepped onto the Berkeley Law campus, where virtually every day produced a new protest or demonstration accompanied by the sting of tear gas. To me, it was the epicenter of our (boomers) generation’s coming of age in such turbulent times. In that year, milestone events erupted—student protests around the world, the assassinations of Martin Luther King Jr. and Robert Kennedy, black-gloved fists raised by Tommie Smith and John Carlos at the Mexico City Olympics protesting racism in the USA, the Democratic National Convention riots, bloody anti-Vietnam War protests against a meaningless conflict, and perhaps the most influential event for me—the Third World Liberation Front strike at San Francisco State University challenging the narrative of history that minimized and distorted the stories, cultures, contributions and characters of people of color.

I was drawn to issues of injustice, and I only later realized how my passion and outrage was formed by my experiences at USC and the urgency of a life-and-death mandate to fight in Vietnam. Perhaps the greatest influence on my perspective was personal—the unjust banishment and imprisonment of my family and 120,000 other Japanese Americans in violation of their Constitutional rights to an attorney, a trial or notice of criminal charges, all justified by a vague and unsupported claim of “military necessity.” The U.S. Supreme Court upheld the constitutionality of my family’s exile in Korematsu v. United States. The law had failed my community.

By the miracle of relaxed grading, I graduated from Berkeley Law and passed the bar. A group of friends and I started a nonprofit community interest law firm, the Asian Law Caucus, dedicated to helping empower the Asian Pacific American community—a populace invisible to the rest of the country whose history, culture, problems and achievements were widely misunderstood or ignored.

We bonded with a fierce collective purpose to make the system responsive to our communities. The ALC unintentionally evolved into a nonprofit private law practice. We were inept at managing a law practice as a business: We focused so much on pro bono social justice causes that we ignored rent and bills!

Anxiety over our lack of practical skills became a nighttime companion, especially without day-to-day mentors. So every Wednesday, I would pack a lunch and hunker down in the law library to study practice books all day. I had to self-educate since I accepted virtually any civil or criminal case that walked through the door.

But besides our lack of experience and knowledge, we faced other daunting opponents—racist and hostile treatment by judges who used slurs or sarcastically asked me, a Japanese American, to translate for my Chinese-speaking client. We suffered through conferences and hearings where judges clearly favored nonminority opposing counsel. Many nights I returned home with my head on fire, outraged and angered. We realized that changing the composition of the bench was the best strategy. So we embarked on a campaign to transform the complexion and gender of the bench through lobbying governors, joining judicial applicant review committees, running candidates and developing contacts with influential allies. The lack of diversity, we realized, derived from lack of power. We have since made great progress, but there are miles to go before we sleep.

Seeking justice

We made a living, but I was most drawn to nonremunerative social justice cases—fighting for tenure for professor Don Nakanishi at UCLA; class action lawsuits against discriminatory police sweeps; lawsuits against systematic discrimination at a major insurance company; suing a university to implement an Asian American Studies program; and the overturning of Fred Korematsu’s 40-year-old conviction for his resistance to military orders banishing Japanese Americans.

Korematsu’s conviction during WWII was upheld by the Supreme Court in 1944 in a landmark and much-criticized decision justifying the exile of Japanese Americans. But the more dangerous precedent was the Supreme Court’s near-total deference to the fraudulent proof presented and later revealed in our case—that the government altered, suppressed and destroyed evidence contradicting the government’s claim of disloyalty and the danger of Japanese Americans.

We still hear the echoes of history today. And it is infuriating to see the demonization repeated against Muslims, Arabs, immigrants and marginalized groups. It is also disheartening to repeat the same deference to the president that was the centerpiece of the Korematsu case. Our campaign, Stop Repeating History (stoprepeatinghistory.org), hopes to remind America of the damage racism and unfettered power can wreak on disfavored people and on our nation’s soul.

Maybe the path I took was somewhat nonlinear. I was trying to navigate in a racialized society, harmonizing my love for this country with the cruelty it inflicted and admiring the rule of law but recognizing its limitations. In a midcareer crisis, I once questioned whether I should find another occupation. I lined up the qualities I wanted in a job, measured them against my strengths and weaknesses, and discovered that I was best fit to practice law with my partners who have the same passion for justice, hard work and great legal skills. I never had to look back.

This article appeared in the June/July 2020 issue of the ABA Journal under the headline: “A Life of Fighting Injustice.”

‘Time to Declare War Against Racism’

‘Time to Declare War Against Racism’

This piece from Bill Ong Hing was originally published on the ImmigrationProf Blog. Photo CC BY 2.0 Daniel Arauz.

Friends–Minneapolis is a wake up call.

The tragic police murder of George Floyd highlights the sad truth that racial profiling of African Americans and the country’s racial divide continue. The juxtaposition of this incident and the fits and starts the nation is going through in its battle against the coronavirus provides us with an opportunity to declare another war — a war on racism in America. With race on the front pages, the opportunity is ripe for national, state, and local leaders to declare war on bigotry and hate.

More than 150 years after the Civil War and 55 years since the Civil Rights Act and the end of the national origins immigration system, racism continues in the United States. From hate speech and hate crimes to employment discrimination and forms of social preference, subtle actions and institutionalized racism continue to challenge our nation. Almost 20 years ago when Trent Lott was sharply criticized for racist sentiment at Strom Thurmond’s retirement party, we saw Democrats and Republicans alike agree that racism is wholly and completely unacceptable. But after Lott stepped aside, addressing racism was pushed to the back burner again, allowed to eat away at our nation’s character. We now see Donald Trump getting away with calling neo-Nazis and white supremacists at Charlottesville “very fine people” while labeling Minneapolis protesters as “thugs.”

A dozen years ago, presidential candidate Barack Obama gave a stirring speech on our nation’s racial divide. Then a few years later he sat down to discuss profiling with Harvard Professor Henry Louis Gates Jr. and his arresting Boston police officer. But after that, we heard little further discussion nor witnessed much direct public action. Any talk of improving race relations remains hushed and polite when it occurs at all. Hushed until there’s another black victim of police brutality: Amadou Diallo. Sandra Bland. Manuel Loggins Jr. Ronald Madison. Kendra James. Sean Bell. Eric Garner. Michael Brown. Mario Woods. Philando Castile. Walter Scott. Freddie Gray. Sam DuBose. Tamir Rice. Eric Harris. Akai Gurley. Terence Crutcher. William Chapman. Jeremy McDole. Alton Sterling. Ahmaud Arbery. Breonna Taylor. Sadly, George Floyd was not the first black murder victim of Minneapolis police—just Google the name Jamar Clark.

The problem with polite talk on these issues is that it lets the vast majority of the nation off the hook. The nation ends up treating overt incidents as the exception, regarding those instances as rare—as they move on to the next day’s headline. What will it take to realize that we should be taking aim at what should be our prime target—the foundation of institutionalized racism that has created an environment that enables subtle and unconscious racism, emboldens perpetrators of racist speech, and licenses acts of hate.

We need more than polite talk. We need a sense of outrage and indignation. We need massive mobilization over the issue. We need a declaration of war. The declaration of war on the evils of hate and racism must be loud and constant. Just as we have poured millions of dollars into campaigns against COVID-19, against drugs and smoking, and into efforts to address recycling and other environmental concerns, we need attention-grabbing strategies to begin now, in the midst of current recognition that improving race relations matters.

We need a clear vision statement on these issues to serve as the basis for this moral declaration. We must be driven, not politely, because we are beyond politeness on the evils of hate and prejudice that our sensible leaders acknowledge are not American values. Let’s put our heads together on this national priority. Be creative and imaginative in approaches. Set an example. Call for new laws, enforcement of existing regulations, smart coalition-building, civility, respect and approaches to addressing private attitudes and actions. Make that call loud and clear and remind us over and over. Make it part of the national psyche, not just part of the national agenda. That call and that declaration of war against racism is happening right now on the streets of Minneapolis.

The public face of American pluralism — dominated by politicians, professionals and community leaders — has its positive moments in spite of Donald Trump. The problem is with the private off-camera face of America that fails to teach our children and challenge our neighbors to be respectful of others. We all share to varying degrees the blame for a culture that gives rise to hate speech and ethnic animosity. Every time we engage in even subtle racism or the fostering of stereotypes, we perpetuate that culture. As much as each of us shares the blame, each of us can be part of the solution. Every time we reach out to others whom we have been conditioned to distrust, fear, or subordinate because of culture, race or class, we begin to chip away at the wicked culture that gives rise to irrational hatred, animosity, and violence.

In the aftermath of 9/11, President Bush spoke out against hate crimes directed at Americans of South Asian, Pakistani, Arab, and Muslim descent. He urged “Americans not to use this as an opportunity to pick on somebody that doesn’t look like you, or doesn’t share your religion.” But then, he and other leaders did little to demonstrate an informed understanding about the racialized structures of our society that continue to subordinate blacks, Latinos, Native Americans, and many Asian Americans. President Obama called on Americans to do better, but his efforts have been derailed by the MAGA-wearing president. So we must take it upon ourselves to support and get on the war path against racism. It’s time to roll up our sleeves and get serious about racism as a nation and as individuals.

Bill Hing

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage Under All-Risk Policies

Minami Tamaki LLP’s Consumer and Employee Rights Group is investigating claims that insurance carriers are wrongfully denying business interruption insurance claims made by businesses coping with the coronavirus (COVID-19) pandemic.

Millions of businesses across the U.S. are struggling amid the economic crisis caused by coronavirus-related shutdowns. Many of these businesses have tendered claims under their business interruption coverage in their commercial property insurance policies in hopes of mitigating the losses they have experienced.

Unlike specified peril or named peril policies which only cover risks that are expressly identified in the policy, all-risk policies (also called “comprehensive” or “open peril” policies) cover everything except what is expressly excluded from the policy. Because traditional specified peril policies generally do not include viral or disease outbreaks, they will likely not provide coverage for businesses affected by the coronavirus pandemic. So, the question remains whether all-risk policies will.

Many insurance carriers, without conducting any investigation, have taken the position that claims related to COVID-19 are not covered by these all-risk policies. All-risk policies typically cover losses due to business interruption where a policyholder suffers “a direct physical loss of or damage to” the property covered under the policy. Additionally, some policies include what is called civil authority coverage which indemnifies policyholders for business interruption losses as a result of a government order that restricts access to the property. Insurance carriers have denied claims on grounds that policyholders have not suffered “a direct physical loss of or damage to” their property or that the government order did not restrict access as a direct result of “a physical loss or damage to” the property that is covered under the policy.

In early April, insurance provider Chubb Ltd. sent out a notice to policyholders on its website that “the presence of an infectious agent or communicable disease at a location where there is covered property generally will not mean that property has suffered ‘physical loss or damage’ under your policy.” Some insurance industry attorneys believe that there has been a concerted effort by insurers to dissuade the public from filing business interruption claims by sending out pre-claim notices such as Chubb’s April notice, as well as requiring property damage and denying claims based on lack of property damage.

Businesses have filed actions against their commercial property insurance carriers as their claims for losses potentially covered under their business interruption coverage have been denied. Chubb is facing a proposed class action lawsuit brought by New Jersey eatery, Benito Ristorante. Similarly, in San Francisco, Michelin-starred Thai restaurant Kin Khao has also filed suit against Oregon Mutual Insurance Company, alleging that Oregon Mutual Insurance Company is wrongfully refusing to provide business interruption coverage. As of the writing of this article, over 120 lawsuits have been filed in the past two months against insurance carriers for denial of claims for business interruption loss.

Many of these businesses claim that they are covered because government orders requiring them to cease operations have caused them to lose the use of their property. The lawsuits allege that the requirement to cease operations constitutes a physical loss of the insured property.

Contingent Business Interruption

Some policies may provide coverage for contingent business interruption losses. Contingent business interruption coverage insures against losses due to the suspension of operations of a contingent business, such as a supplier. Like the business interruption coverage, the contingent business interruption coverage requires a direct physical loss or property damage to the supplier that would have been covered if that direct physical loss or property damage was sustained by the policyholder. Again, because coverage for contingent business interruption requires a direct physical loss or damage to property, it is likely that insurance carriers will deny such claims unless there has been physical damage to the property of the contingent business.

Virus Exclusions

In 2006, the Insurance Services Offices adopted an endorsement amending coverage to exclude any losses due to virus or bacteria in response to the SARS outbreak. Policyholders who have continued to renew their policies with the same insurer over the years may discover that their policies contain virus exclusions as their claims are rejected on that basis.

However, rejection of claims based on the virus exclusion may be invalidated if the policyholder did not get notice that their coverage under the policy was changing. Under California Insurance Code section 676.2, subdivision(c)(1), if the policy has been in effect for more than 60 days or is up for renewal, a change in the conditions of coverage is not effective unless a written notice is given to the named insured at least 30 days before the effective date of the change. Thus, the insurance carrier’s failure to disclose the elimination of coverage will invalidate the exclusion.

Pre-claim notices

Any coverage analysis will depend on the specific language of the insurance contract. Some insurance carriers are sending out pre-claim notices about potential coverage for COVID-19 which includes what may be applicable portions of the policyholder’s insurance coverage provisions. These pre-claim notices are not denials of claims and are not actual determinations of coverage. As most insurers require prompt notice of any claims, policyholders must still make a claim if they would like to preserve their right to have their losses indemnified.

Other Questions?

For more information on insurance coverage for business interruption claims, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.