The owner of an open-air mall with more than 35 restaurants and shops located on the Las Vegas Strip filed suit against an insurance company, alleging breach of contract and breach of the covenant of good faith and fair dealing for its refusal to pay business interruption losses in connection with the state-ordered closings of its operations due to the COVID-19 pandemic. In May 2022, a district court denied the insurer’s motion to dismiss.
September 30, 2022
The Restaurant Law Center, jointly with Bloomin’ Brands, Inc., and others, filed an amicus brief, arguing that a requirement of “physical loss or damage” in an insurance agreement does not require a “distinct and demonstrable physical alteration of the property” to obtain recovery from the insurance company. Instead, that recovery should be permitted when a dangerous substance or a disease such as COVID-19 renders the property unfit for its intended use even without any “physical” alteration to that property. In addition, we argue that, regardless, as a matter of scientific fact, COVID-19 causes distinct, demonstrable, physical alteration of property.