Insurance Coverage: Defining Physical Loss or Damage; Testing Assumptions About What Triggers Coverage

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Course Details

Course Information

smart_display Format
On-Demand
signal_cellular_alt Difficulty Level
work Practice Area
Insurance

Date & Time

event Date
Tuesday, February 1, 2022
schedule Time
1:00 p.m. ET./10:00 a.m. PT
timer Program Length
90 minutes

Credit Information

This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

This CLE webinar will discuss whether "physical loss or damage" sufficient to trigger prima facie coverage under a property or business income policy requires the policyholder to present evidence of "distinct, demonstrable, physical alteration of the property." The panel of both policyholder and insurer counsel will review the origins of the physical alteration requirement and then consider the merits of recent scholarship arguing that the physical alteration requirement is a fallacy perpetuated by errors in a well known insurance law treatise that courts accept without adequate analysis.

Faculty

Max H. Stern

Partner

Duane Morris LLP.

Mr. Stern is the head of the firm’s Insurance Litigation Division. As a trial and appellate lawyer, he has extensive experience with respect to coverage, bad faith, reinsurance and regulatory disputes, spanning multiple lines, including specialty, professional, excess and general liability. His work representing insurers has earned him a spot on numerous leading lawyers lists, including Chambers USA (both the Nationwide and California lists), Legal500, and Martindale-Hubbell.

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Jeffrey S. Raskin

Partner

Morgan, Lewis & Bockius LLP

Mr. Raskin is head of the firm’s Insurance Recovery Practice in the San Francisco office. He has represented clients involved in litigation, arbitration and mediation in matters related to insurance coverage, environmental disputes, and IP disputes, among others. Mr. Raskin has handled insurance matters seeking recovery for catastrophic losses in environmental, asbestos, silica, toxic tort, product liability, and securities cases.

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Lorelie S. Masters

Partner

Hunton Andrews Kurth LLP

Ms. Masters handles all aspects of complex, commercial litigation and arbitration. She has advised clients on a wide range of liability coverages, including insurance for environmental, employment, directors and officers, fiduciary, property damage, cyber, and other liabilities. Ms. Masters also handles various types of first-party property insurance claims, including claims under boiler and machinery, business-interruption, contingent business-interruption, extra expense, disability and other related coverages.

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Eric B. Stern

Partner

Kaufman Dolowich Voluck LLP

Mr. Stern concentrates his practice in all aspects of insurance coverage litigation. He has analyzed, written on and litigated over various types of policies, including D&O liability, professional liability, CGL, uninsured/underinsured motorist, homeowners’ liability, and first-party policies. Mr. Stern has successfully defended insurers in multiple matters and has reported decisions at the trial level. Due to Mr. Stern’s experience in this area, he has become a frequent presenter on multiple topics.

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Description

Business income coverage, indeed most property insurance coverage, is ordinarily triggered by "physical loss or damage," so the meaning of this phrase is of utmost importance to both insurers and policyholders. Insurers often argue that physical loss or damage cannot exist without--or only exists in the presence of--distinct, verifiable, and physical alteration of the property.

Cases requiring physical alteration frequently cite 10A Steven Plitt et al., Couch on Insurance 3d Sec. 148:46, for the proposition that a physical alteration requirement is the "law" or the "majority" position. Policyholder counsel, however, argue that the treatise ignores a significant body of contrary law.

Policyholders point to what they contend is an equal, opposite, and precedential body of authority that no physical alteration is now or has ever been required to trigger a prima facie case coverage. Recent scholarship suggests that courts have relied too heavily on and too quickly on Couch's purported error and have failed to critically analyze the legal question.

Listen as this experienced panel discusses the law of direct physical loss and how to think critically about the issue.