Insurance Law

This section includes literature on business, life and health insurance.

Blight, Christine and Michael Chaaya, 'The Impact of PYS, PMIF and COVID-19 on Insurance in Superannuation' (2020) 31(9-10) Australian Superannuation Law Bulletin 170-172
Abstract: With the COVID-19 early release of superannuation measures, there has been significant commentary on the impact of making an early withdrawal from superannuation funds. But there is also the 'sleeper' issue of how mass withdrawals will broaden the issue of underinsurance while funds and their members are still coming to terms with the impact of the Protecting Your Super (PYS) and Putting Members' Interests First (PMIF) legislation.

'Business Interruption Clarification' (2020) 170(7902) New Law Journal 5
Abstract: Notes Financial Conduct Authority v Arch Insurance (UK) Ltd (Comm), a test case on business interruption insurance claims arising from the coronavirus pandemic.

Cotter, Daniel A, 'A Pandemic Walks into a Bar: The Covid-19 Pandemic and Business Interruption Insurance' (2020) 34(3) CBA Record 30-32
Introduction: Unlike most catastrophes and major events, which are geographically contained, the Covid-19 crisis has affected everyone across the United States, with the vast majority of Americans subject to shelter in place orders to 'flatten the curve.' With such orders came major business disruptions and closures. When people face the potential for major financial disruption to their households and businesses, they seek sources of money to help assuage the losses, as 'desperate times call for desperate measures.' One source of potential funds that many businesses have turned to is insurance and, more specifically, business interruption coverages. This article addresses those coverages and the coverage disputes storm that is brewing.

Dolgay, Cody F, 'COVID-19 Insurance and Healthcare Considerations' (2020) 2 Emerging Areas of Practice Series - COVID-19 (Coronavirus) Westlaw Canada
Extract: The Canadian health and long term care industries have been hit particularly hard by COVID-19. It would appear that this has not gone unnoticed by insurance underwriters. We are now aware that at least two large national insurers have begun to implement dramatic changes to the policies that they underwrite for health care organizations and long term care facilities. Specifically, it appears that a 'Contagious Disease Exclusion Endorsement' is being added to some policies upon renewal. This broad Endorsement purports to completely remove from coverage 'any claim, action, occurrence, accident, loss, damage, injury, cost, expense, fee, charge, fine, penalty, or other amount' alleged to be caused directly or indirectly by a number of contagious diseases listed in the Endorsement.

Eyerly, Tred, 'Is the Presence of Coronavirus "Direct Physical Loss or Damage"' Under a Property Policy?' (2020) 24(7) Hawaii Bar Journal (forthcoming)
Extract: Whether the presence of coronavirus creates "direct physical loss or damage" is currently a hotly contested issue. Early indications are that coronavirus remains on objects and surfaces. The duration can be from a few hours to three weeks, depending on the type of surface material. If a customer or employee is infected and the store or restaurant must closed because the virus may rest on surfaces within the building, is there direct physical loss or damage, even though the building structure itself is unharmed? While Hawaii case law offers no definitive answers, cases from other jurisdictions offer contrasting opinions.

Fiodoroff, Natasha and Kim Waygood, 'Life Insurance and the Coronavirus Disease (COVID-19)' (2020) 36(1) Australian Insurance Law Bulletin 2-5
Abstract: The World Health Organisation (WHO) website records that globally, as at 20 April 2020, there have been 2,245,872 confirmed cases of COVID-19, including 152,707 deaths, reported to WHO. The first case of COVID-19 was traced back to Hubei Province in China in mid-November 2019. Five months later, a total of 6,606 cases of COVID-19 have been reported in Australia, including 70 deaths.The life insurance industry is now in the unexpected situation of having to radically respond to enormous changes, at extremely short notice. Who would ever have thought that a virus could change the world almost overnight? This article looks at how COVID-19 has impacted upon and will change the life insurance industry.

Freeman, Iain, 'Business Interruption Insurance and COVID-19' (2020) 36(1) Australian Insurance Law Bulletin 6
Abstract: The COVID-19 virus has had a profound impact on many businesses in Australia. They have had to change the way in which they work or, in many cases, have even closed down. With that, there has been a significant decrease or complete loss in revenue or an increase in cost of working. Understandably, many businesses have been interested to understand if their business interruption insurance policy may come to their aid. Regrettably, in many cases, it will not.

Frees, Edward W and Fei Huang, 'The Discriminating (Pricing) Actuary' (SSRN Scholarly Paper ID 3592475, 4 May 2020)
Abstract: The insurance industry is built on risk classification, grouping insureds into homogeneous classes. Through actions such as underwriting, pricing and so forth, it differentiates, or discriminates, among insureds. Actuaries have responsibility for pricing insurance risk transfers and are intimately involved in other aspects of company actions and so have a keen interest in whether or not discrimination is appropriate from both company and societal viewpoints. This paper reviews social and economic principles that can be used to assess the appropriateness of insurance discrimination. Discrimination issues vary by the line of insurance business and by the country and legal jurisdiction. This paper examines social and economic principles from the vantage of a specific line of business and jurisdiction; these vantage points provide insights into principles. To sharpen understanding of the social and economic principles, this paper also describes discrimination considerations for prohibitions based on diagnosis of COVID-19, the pandemic that swept the globe in 2020. Insurance discrimination issues have been an important topic for the insurance industry for decades and is evolving in part due to insurers' extensive use of Big Data, that is, the increasing capacity and computational abilities of computers, availability of new and innovative sources of data, and advanced algorithms that can detect patterns in insurance activities that were previously unknown. On the one hand, the fundamental issues of insurance discrimination have not changed with Big Data; one can think of credit-based insurance scoring and price optimization as simply forerunners of this movement. On the other hand, issues regarding privacy and use of algorithmic proxies take on increased importance as insurers' extensive use of data and computational abilities evolve.

French, Christopher C, 'COVID-19 Business Interruption Insurance Losses: The Cases For and Against Coverage' (2020) 27 Connecticut Insurance Law Journal 1-35
Abstract: The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims 'tooth and nail.' More than 450 lawsuits throughout the country already have been brought against insurers, including dozens of class actions. Legislators in several states have proposed legislation that would require insurers to pay business interruption claims regardless of whether the claims are covered by the wording of the policies. In the absence of a government bailout, the losers of this epic insurance battle--either insurers or their insureds' businesses--will likely face bankruptcy. Thus, the financial consequences of this battle, and its implications for America's economy, cannot be overstated.This is the first scholarly Essay to discuss the arguments for and against business interruption policies covering COVID-19 business interruption losses. In doing so, it sets forth the strongest arguments on each side of the fight regarding the meaning of the applicable policy language in the context of the existing caselaw and the purpose of business interruption insurance. It also addresses the insurance industry's claim that pandemic losses are not covered by business interruption policies because such losses are simply uninsurable. Finally, it discusses the competing public policies that support each side.

French, Christopher C, 'Forum Shopping COVID-19 Business Interruption Insurance Claims' [2020] University of Illinois Law Review Online 187-202
Abstract: Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 900 COVID-19 business interruption insurance lawsuits filed thus far, more than 600 of them have been filed in federal court, with more than 100 filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders. Conventional wisdom provides that a plaintiff's chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions?This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court.

Ghannam, Alaa, Ayman Sebae and Dina Makram-Ebeid, 'Healthcare Protection Policies during the COVID-19 Pandemic: Lessons towards the Implementation of the New Egyptian Universal Health Insurance Law' (American University in Cairo, Faculty Journal Articles, Social Protection in Egypt: Mitigating the Socio-Economic Effects of the COVID-19 Pandemic on Vulnerable Employment, 2021, 31 January 2021)
Abstract: On March 11th 2020, the World Health Organization (WHO) declared the coronavirus a global pandemic. The spread of the virus in many countries has exceeded the capabilities of the traditional healthcare systems and has challenged government plans to contain it. The COVID-19 pandemic arrived in Egypt at a time when the first steps in the implementation of the newly ratified law on social health insurance were taking place. Law number 2 for the year 2018 saw the first steps of its implementation in Port Said governorate. As the realisation of the law is proceeding in other governorates, the pandemic and the policies it brought impacted the implementation process of the law. This paper attempts to provide an assessment of the policies taken to challenge the spread of the COVID-19 pandemic. It investigates the effects of the health system's response to the pandemic on the implementation of the new health insurance law. The paper also aims at providing lessons from the management of the first phase of the pandemic, lessons that could be capitalized upon during the implementation of the health insurance law and in the health system reform in general. Understanding the effects of these policies and drawing lessons from the management of the first phase helps identify future challenges, opportunities and pitfalls in providing full comprehensive healthcare coverage for all Egyptians during the realization of this law. The paper draws its analysis, conclusions and recommendations from a number of sources including documentation of government policies towards the COVID-19 pandemic from January 7th 2020 until August 23rd 2020, desk review of data on the effects of these policies on disease morbidity and mortality, results of community assessments of healthcare services before, during and after the implementation of the new health insurance law in Port Said and input from key stakeholders. These key stakeholders include representatives at the different authorities in charge of the implementation of the new health insurance law and the COVID-19 response effort, service providers at different levels of healthcare service provision, service beneficiaries and service users and experts, policy makers and analysts. Based on the study's findings, key recommendations are provided in managing the COVID-19 pandemic, implementation of the new health insurance law and beyond.

Giblett, Ray, Benjamin Kende and Timothy Chan, 'Travel Insurance in the Time of COVID-19' (2020) 36(1) Australian Insurance Law Bulletin 7-10
Abstract: As the coronavirus disease (COVID-19) outbreak evolves and travel restrictions remain in place for at least part of Australia's winter, it has become abundantly clear that any plans Australians may have to enjoy a summer in Italy, Spain or England are quickly fading. In these uncertain and fluid times, travel insurers face increasing scrutiny from customers and regulators, with new policy sales grinding to a halt. It is an important time for insurers to assess their position and how they can best service their clients moving forward. In this article, we investigate how the travel industry is approaching cover for epidemics and pandemics, some potential coverage issues, and how travel insurers can use this time to regain consumer trust, following the Financial Services Royal Commission.

Huberfeld, Nicole and Sidney Watson, 'Medicaid's Vital Role in Addressing Health and Economic Emergencies' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 103-109
Abstract: Medicaid plays an essential role in helping states respond to crises. Medicaid guarantees federal matching funds to states, which helps with unanticipated costs associated with public health emergencies, like COVID-19, and increases in enrollment that inevitably occur during times of economic downturn. Medicaid's joint federal/state structure, called cooperative federalism, gives states significant flexibility within federal rules that allows states to streamline eligibility and expand benefits, which is especially important during emergencies. Federal emergency declarations give the secretary of Health and Human Services temporary authority to exercise regulatory flexibility to ensure that sufficient health care is available to meet the needs of those impacted. Under federal guidance, states have implemented a variety of options to respond to the COVID-19 pandemic. In addition, Congress enacted short-term legislative responses that increase federal funding for Medicaid and open new pathways for eligibility and payment for some COVID-19 testing. These responses have softened the double blow of the pandemic and its attendant recession, but more federal and state action is necessary. Congress should enact an increase in federal funding that lasts beyond the public health emergency to help states ride out the economic impact of the pandemic; provide extra funding to encourage states to adopt Medicaid expansion; offer states more funding for enrollment efforts to reach newly uninsured populations; and require state and local demographic data collection as a condition of federal funding to inform evidence-based public health efforts. State governments should use all available emergency flexibility options to streamline application and enrollment processes and take advantage of increased federal funding possibilities.

Longley, Nick, 'COVID-19 and the Concept of Damage for Construction Insurance Claims' (2020) 36(1) Australian Insurance Law Bulletin 11-14
Abstract: This article considers to what extent an outbreak of COVID-19 on a construction site will impact on any construction insurance contracts. It will specifically consider to what extent the presence of COVID-19 on site can be considered damage for the purposes of the material damage section of a contract works insurance contract.

Muobuikwu, Chibueze, 'An Appraisal of the Business Interruption Insurance Coverage in Nigeria in the Face of the Recent COVID-19 Pandemic' (SSRN Scholarly Paper No ID 3677248, 22 April 2020)
Abstract: The outbreak of corona virus (COVID-19) pandemic has no doubt, occasioned an unprecedented global human and economic crisis. The resultant lockdown and abrupt shutdown of major economic activities in the world have apparently given rise to several business disruptions and economic losses across the world including Nigeria. According to Kristalina Georgieva, Managing Director of International Monetary Fund (IMF), the economic effect of the pandemic would result in 'a recession at least as bad as during the Global Financial Crisis or worse', and this is because the world is currently experiencing the most difficult economic situation since World War-II. The consequence of the foregoing crisis is that many organizations would be seeking for ways to ameliorate the effect of the pandemic on their businesses. One of the options open to some businesses is to have recourse to their insurance policies, and the most significant insurance coverage which business owners would resort to, is the business interruption insurance coverage. This write up examines the concept of business interruption coverage; the extent which such insurance claims may be potent for the insured business owners in the face of the recent pandemic, and the extent of its viability in the light of the Nigerian insurance legal framework.

Nousia, K, 'The Covid-19 Pandemic: Contract and Insurance Law Implications' (2020) 35(7) Journal of International Banking Law and Regulation 274-283
Abstract: The spread of COVID-19 has had a global impact, with the human toll being significant, and with the economic cost being unquantifiable. With regards to business and contractual relationships, legal liabilities owed to disruption, cancellations, or to the imposed halt of everyday life are perhaps the most notable. This article starts by examining frustration in English, US and continental contract law in relation to cases where the circumstances have changed due to unnatural events such as the ongoing COVID-19 pandemic. It then moves on to discuss the impact of Covid-19 on insurance, in particular business interruption, travel and general liability insurance. The likelihood of success of future claims, the scope of coverage, together with the meaning and interpretation of the term 'force majeure' and how this will relate to exclusions from insurance coverage is discussed. Valuations methods are also considered and evaluated with a view to protect the policyholder as his business interruption policy is a contract of adhesion not having left him any room to negotiate. In addition, possible interpretations to be followed by courts in future claims and liability for catastrophic risks and methods of compensation are examined and conclusions on the role of insurance in the COVID19 pandemic are drawn.

Pulawska, Karolina, 'Impact of the COVID-19 Pandemic on Insurance Companies in Europe: First Signals' (SSRN Scholarly Paper ID 3708992, 10 October 2020)
Abstract: Action to prevent the spread of the Coronavirus Disease 2019 has been taken internationally. Service companies have been restricted, and a number of sports and cultural events have been postponed or canceled. As a result, the current pandemic has led to global socio-economic disruption. The current economic situation, caused by the pandemic, might significantly affect the functioning of insurance companies in Europe, as the insurance companies are in the delicate position of balancing a claims load with their capital and solvency stability. In this study, we evaluate the effects of the CoronaCrisis on the insurance companies. We use financial statements of insurance companies comprising European insurance companies during 2010-2020. The results unambiguously demonstrate that CoronaCrisis negatively affects the insurance sector's stability. However, we do not see the effect of CoronaCrisis on the Z-Score ratio. Moreover, our estimation results demonstrate that the CoronaCrisis increase the value of receivables owed to the insurance companies. Therefore, in light of the above, European legislators should discuss how to manage probable financial problems of insurance companies. A lack of proper management would certainly endanger the customers' safety and stability of the sector. Therefore, we confirm that government interventions in European countries needed to prevent the insurance sector from collapse.

Rosenbaum, Sara and Morgan Handley, 'Caring for the Uninsured in a Pandemic Era' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 110-116
Abstract: On the eve of the COVID-19 pandemic, millions of Americans were uninsured despite a booming economy and a decade of health reform. The pandemic and its associated job losses have significantly increased the number of uninsured Americans - predominantly low-income, working-age adults and their families. Underlying drivers are the pandemic-triggered economic crisis, the inherent limits of the Affordable Care Act (ACA), the 2012 United States Supreme Court's ruling on the constitutionality of its nationwide Medicaid expansion, and policies pursued by the Trump administration and certain states that further restrict the ACA's reach. Especially serious during a public health emergency, the uninsured are significantly less likely to receive necessary care and are more likely to forgo care because of cost. Health care safety net providers established and operated under federal, state, and local law offer vital care for the uninsured and medically underserved rural and urban populations and communities. Federal COVID-19 legislation enacted to date appropriates funding to directly support health care providers, but the administration's implementation approach may be limiting the effectiveness of this funding for the highest-need populations and communities. Beyond reforms aimed at improving how federally appropriated emergency health care funding is spent, states should use Medicaid to foster greater safety net provider stability and should pursue policies that promote accountability by tax-exempt hospitals with charity care obligations.

Scott, Rob and Zara Sher, 'South Africa : COVID-19 Related Insurance Claims and Coverage' (2020) 20(6) Without Prejudice 21-23
Abstract: The outbreak of the coronavirus (COVID-19) pandemic has raised many questions around insurance coverage with regard to COVID-19 related losses, exposures and liabilities.

Terracall, Lucy and Claire Gomo, 'Test Cases to Consider COVID-19-Related Business Interruption Insurance Coverage' (2020) 24(3) Inhouse Counsel 35-36
Abstract: Test cases in both the United Kingdom and Australia will provide clarity as to whether there is coverage for business interruption consequent upon COVID-19. However, given that such guidance may be some time away, this article outlines some of the key steps in-house counsel should take now to preserve a potential insurance entitlement.

Walpole, Samuel and William Isdale, 'Business Interruption Insurance and the COVID-19 Pandemic' (2020) 49(1) Australian Business Law Review 73-77
Abstract: The extent to which business interruption insurance policies respond to the disruption wrought by the COVID-19 pandemic has emerged as a significant legal issue in Australia and overseas. In the first Australian test case - HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296 - a five-judge bench of the New South Wales Court of Appeal addressed the fact that many Australian policies contain exclusions from cover framed around reference to the now-repealed Quarantine Act 1908 (Cth), which has been replaced by the Biosecurity Act 2015 (Cth). This note highlights key aspects of the reasoning of the members of the Court of Appeal and considers the lessons that emerge from the decision.

Weeks, Elizabeth, 'Private Insurance Limits and Responses' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 95-102
Abstract: The COVID-19 pandemic exposed a number of existing flaws in the United States' patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The Patient Protection and Affordable Care Act of 2010 (ACA) dramatically overhauled health insurance in the United States. But those reforms have been under continuous threat of dilution or wholesale repeal, including a case currently pending before the U.S. Supreme Court that could strike down the entire Act. Thus, any evaluation of the benefits or demerits of the private insurance market must be read against the possibility that existing consumer protections could be eliminated with the stroke of a pen.

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