Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Only Courts Can Decide if COVID-19 Chaos is Included Under Business Interruption Coverage

Despite paying insurance premiums for years, businesses are now being told by insurance companies and brokers that the business interruption coverage in their policy does not apply to coronavirus losses. However, the question of whether business interruption coverage extends to losses caused by the current pandemic will ultimately be answered by the courts, not insurance carriers. These legal decisions will depend upon the specific language of the policy and the facts and circumstances surrounding the claim. For more information on the specific issues regarding business interruption coverage claims, please see the prior guidance provided by BMD here.

Lawsuits are being filed in Ohio and many other states to challenge coverage denials based on coronavirus losses. Insurance companies will vigorously defend these claims at all stages, including at the pre-suit claim level. Currently, insurance carriers are  requiring businesses to submit substantial documentation after a proof of loss has been submitted. Intentional or not,  requiring businesses to submit substantial documentation, including proof that the coronavirus was present at their location, will likely dissuade a number of businesses from asserting claims and lessen the number of lawsuits challenging coverage denials.

While there are legislative efforts to provide business interruption coverage to small businesses in Ohio and other states, the legislative process will take time, and the outcome is uncertain.

In the interim, what should be businesses being doing to preserve their rights to pursue relief under their insurance policies? Business should:

  1. Request copies of all insurance policies from brokers or directly from insurers. While business interruption coverage concerns the property coverage included in almost all commercial policies, other coverages may exist and apply, depending upon the industry.

  2. Gather documentation to support any coronavirus insurance claims that the business intends to assert. The type and nature of documentation will largely depend upon the business involved. For example, restaurants, bars, movie theaters, salons, and fitness centers in Ohio should obtain a copy of the pertinent order shutting down their establishments. Businesses should also gather all financial documentation demonstrating losses from the shutdown or earlier, depending upon the circumstances.

  3. Consider filing a proof of claim to preserve the rights of the business under the insurance policy. While this can be done independently, many businesses would benefit from discussing this option or obtaining assistance from insurance brokers or legal counsel to submit a proof of loss or claim in accordance with the terms of the insurance policy.

  4. Consult with legal counsel about insurance policies and whether coverage may exist for coronavirus losses. Not all policies include the same language or exclusions. Furthermore, this issue is developing based on the arguments and opinions adopted by Courts in Ohio and other states. It will be important to discuss with counsel how to substantiate a claim and the options for pursuing claims in Court. Finally, given the multitude of legal issues presented by the novel coronavirus, businesses should also discuss their current policies and potential insurance needs.

Businesses should not be discouraged by the multitude of articles disseminated by the insurance industry over the last month to dissuade businesses from filing coronavirus claims. Insurance coverage is always dependent upon the language of the policy and the facts and circumstances surrounding the claims as presented. The courts, not the insurance industry, decide whether coverage exists. For this reason, it is important to be proactive now to preserve your rights and know your options.

For more information, please contact Kyle A. Johnson at kajohnson@bmdllc.com or 330.374.7475 or Hal DeSaussure at hdesaussure@bmdllc.com or 330.436.8914.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.