In the storms’ aftermath, businesses in the affected areas of Texas, Louisiana, Florida, Puerto Rico and the Virgin Islands should be vigilant in pursuing insurance recoveries. That entails assessing not only the physical damage to their property but also income losses stemming from flooded and blocked roads and bridges, interruptions of shipping and air transport, evacuations, and closures by civil authority.
Businesses suffering from supply chain disruptions, both in the areas of immediate impact and throughout the United States, should look to their property insurance policies for contingent business interruption coverage, triggered when policyholders lose revenue due to the effect of property damage on a supplier or customer.
Business interruption insurance covers businesses for losses in income stemming from unavoidable disruptions to their regular operations as a result of damage to property. In addition to coverage resulting from damage to the policyholder’s own property, “BI” coverage also may be triggered by circumstances including utility service interruption, a government evacuation order or a substantial impairment in access to a business’s premises. Many property policies also provide “extended business interruption” coverage that begins when the property is fully repaired and ends when operations are ramped up to their pre-disaster level—though that extension typically is limited to 60 days.
Contingent business interruption coverage is triggered when policyholders lose revenue after a property loss impacts one or more suppliers or customers. For example, businesses that rely upon specialty chemicals from the affected area may have to pay more for supplies, and companies that sell into the area, such as consumer products manufacturers and distributers, will suffer lost sales. While the business itself need not be physically damaged, it does need to have coverage for the type of damage that affected its suppliers, business partners or customers. For
example, a business must have flood coverage to file a contingent business interruption claim for losses triggered when a supplier is incapacitated by flood.
Whether the policyholder has the appropriate coverage for its own property that is needed to trigger contingent business interruption coverage can be a complicated issue. Many companies have flood insurance only for specifically designated flood zones. If the policyholder has substantial operations outside those zones, an insurance company might argue that it does not have the needed coverage to respond to a contingent business interruption loss stemming from floods in the Gulf or Puerto Rico.
Extra expense coverage applies to additional costs incurred by the policyholder as a result of damage to its property, and to costs incurred to mitigate economic losses. This coverage often is very broadly defined.
Contingent extra expense coverage applies when costs are incurred as a result of a business interruption caused by damage to the property of a supplier or customer. Like ordinary extra expense coverage, contingent extra expense insurance may be issued in one of two basic forms: 1) for extra expense to reduce loss and 2) for “pure” extra expense. The more common coverage insures only against extraordinary costs incurred to minimize or prevent a contingent business interruption loss. For example, following the destruction of a chemical manufacturing plant, a customer’s contingent coverage could be triggered by the need to purchase alternative ingredients at higher prices
than the lost supply.
POLICY PITFALLS: SUBLIMITS AND CONCURRENT CLAUSES
Many commercial property insurance policies provide different sublimits for losses caused by “flood” “storm surge” and “named storms.” How the policy defines these key terms can be critical in determining the amount recoverable for the policyholder’s loss.
In the aftermath of a major storm, damage caused by wind or wind-driven rain, storm surge or flood can be difficult to distinguish. For policyholders lacking flood coverage, insurance companies often invoke “anti-concurrent causation clauses” to deny any coverage at all if flooding occurred. Some state courts, however, have held that if the “efficient proximate cause” of damage is covered—that is the dominant cause—then the claim is covered. Also, anti-concurrent causation clauses should not be applied to property that is damaged by a covered cause, such as wind and rain, and later subjected an excluded cause, such as flood, which causes no additional damage. For this reason it is often important to determine the sequence of events and cause of damage to each item in the property loss claim.
CAREFUL COVERAGE EVALUATION
Calculating the full range of business income loss from property damage, disruption of the surrounding area, and closures by order of civil authority is a complex task. It begins with a careful evaluation of your insurance coverage, taking into account the interplay between the various coverages, exclusions and sublimits which may apply to your claim. Then, develop a plan to drive the claim adjustment to a prompt resolution. In that regard, make clear to the insurance companies the adverse impact that a delay in payment will have on your company, and document everything that occurs—or does not occur—in the adjustment process so the insurers will know that a record is being made of their claims handling conduct.
In the aftermath of disaster, insurance can be a vital lifeline—but it is one that has to be actively seized, and in some cases strenuously climbed. Understanding your full range of coverage and thoroughly documenting your sources of loss are essential to maximizing the recovery owed under your insurance policies.
Authors
Finley Harckham is a senior litigation shareholder in the New York office of Anderson Kill where he regularly represents and advises corporate policyholders and other entities in insurance coverage matters. His areas of particular focus include property loss, business interruption, directors and officers liability, construction, professional liability, aviation liability, cyber and general liability claims.
Marshall Gilinsky is a shareholder in the New York office of Anderson Kill. During his 20-year career representing policyholders, he has recovered hundreds of millions of dollars for his clients, successfully litigating disputed claims under a variety of insurance products, including property and business interruption insurance, commercial general liability insurance, errors and omissions insurance, and directors and officers insurance.
]]>As the United States District Court for the Eastern District of New York noted: “The FDA initiated this review in part because several federal courts had previously requested administrative determinations from the FDA regarding whether food products containing ingredients produced using genetic engineering may be labeled as ‘natural.’” Forsher v. J.M. Smucker Co. (E.D.N.Y. Sept. 30, 2016) The prospect of the FDA developing new guidance, like all pending regulation, is now in doubt, given the Trump administration’s avowed aversion to regulation and its executive order 13371, Reducing Regulation and Controlling Regulatory Costs, stipulating that for every new regulation promulgated, two older regulations should be eliminated. If the FDA declines to define “natural,” states may move to fill the void. In fact, in his 2016 State of the State address, New York Gov. Andrew Cuomo proposed that New York health officials develop their own definitions for terms like “all natural.”
Litigation concerning whether genetically modified foods can be labeled “natural” would presumably be affected by the FDA’s definition. Since this issue has been raised in cases across the country, one should expect to see a decline in litigation on this matter. In fact, according to an article in Time magazine last year, “Based upon statistics from 2013, only 22.1 percent of food products and 34 percent of beverage products marketed that year claimed to be ‘natural,’ which reveals a decrease from 30.4 percent and 45.5 percent respectively only three years prior. Insiders suspect that’s due to legal action or fear of future disputes about misleading labels.” That number can only be expected to decrease in light of the FDA’s current consideration of the term.
Litigation, Naturally
Nevertheless, litigation is prevalent in this area. For example, the plaintiff in the Smucker case alleged that the company’s use of the term on packaging for certain peanut butter spreads is false and in violation of various consumer protection statutes “because some products contain sugar manufactured from genetically modified organisms (GMOs).” In a motion to dismiss, the defendant argued that it complied with the FDA guidelines. In the alternative, the company maintained that the matter should be stayed pursuant to the primary jurisdiction doctrine in light of the FDA’s review of the definition of “natural.” And the court found that a stay was appropriate in light of the FDA’s consideration of the term in order to “allow the FDA the opportunity to take action.”
Similarly, in Kane v. Chobani, the U.S. Court of Appeals for the Ninth Circuit remanded an appeal brought by the plaintiffs after their putative class action, which alleged that Chobani’s labeling and use of the term was in violation of several laws, was dismissed. The Ninth Circuit found it prudent to enter an order staying the matter until the FDA completes its proceedings on the term “natural.”
Other Terms That Don’t Go Down Well
The courts’ decisions to stay matters pending FDA consideration is not a novel concept. Other courts have done the same thing.
Moreover, suits such as these are not limited to the labeling of “natural.” For example, in Garrett et al. v. Bumble Bee Foods LLC, the Superior Court of the State of California, County of Santa Clara, recently began a bench trial on Bumble Bee Foods’ alleged misleading of consumers. Specifically, the plaintiffs allege that the defendant labeled its tuna as an “excellent source” of omega-3 fatty acids. This was, the plaintiffs maintain, problematic, given Bumble Bee Foods’ use of the American Heart Association logo, while omitting that it paid the American Heart Association to review its product.
Similarly, in Wilson v. Frito-Lay North America, Inc., the United States District Court for the Northern District of California lifted a stay previously imposed and permitted the defendant to renew its motion for summary judgment. The basis of the putative class action is rooted in several Frito-Lay snacks labeled “0 grams Trans Fat,” which the plaintiffs contend should have referred them to the back panel for the total fat in the snacks, according to the plaintiffs’ reading of the FDA labeling regulations. The summary judgment motion has not yet been fully briefed, and the hearing is expected to take place on May 4, 2017.
Although the process of evaluating the definition of “natural” began over a year ago, the FDA’s careful consideration should come as no surprise, especially given the effects such a definition would have on the industry. Not only would every manufacturer be required to re-evaluate their labels in order to determine whether or not they are in compliance with new FDA regulations, but also litigation concerning this matter would be significantly affected in several ways. First, the industry can expect to see substantially less litigation stemming from alleged improper/misleading labeling should a definition be established. More specifically, defining the term “natural” will provide both manufacturers and consumers alike clarity and allow for industry-wide consistency. If, however, the FDA adopts an ambiguous definition, consumer litigation could actually be expected to rise in this area.
Insurance for False Labeling Claims
In so far as food and beverage companies are concerned, understanding these potential claims is essential, and understanding the extent to which insurance coverage may protect against potential liability is even more so. First, food and beverage companies should carefully read their insurance policies already in place to determine whether potential misrepresentation claims are covered. Commercial general liability policies that include coverage for “advertising injuries” are often narrow in scope, and may in fact exempt such misrepresentation claims. Second, in procuring future coverage, manufacturers should keep in mind the potential impacts of the FDA’s decision to define “natural” if such labeling applies. Finally, difficult as it may be, companies should look to applicable directors and officers (D&O) policies for potential coverage. While potential misrepresentation claims could be considered “wrongful acts,” D&O policies are often carefully crafted to preclude claims such as these.
Ultimately, procuring broader coverage could be beneficial to food and beverage companies during this time of changing regulation.
Authors
Steven J. Pudell – Managing Shareholder (Newark Branch), Anderson Kill
Christina Yousef – Attorney, Anderson Kill
Once a finding of contempt is made by the court, it has broad discretion to act not only coercively to enforce the order, but to place the aggrieved party in the same position they would have occupied but for the failure of compliance by the contemptuous actor. This is a remarkably powerful tool. For instance, if a party is required to comply with a certain request for documents, the attorney might consider the ultimate intention or use that the documents intended to serve. Would the documents have likely proven liability? If so, perhaps a persuasive argument to the court that failure to comply with an order to provide such documents should be met with a ruling in your client’s favor for liability. Would the documents have been used to establish a valuation for the company? If so, perhaps the appropriate remedy would be that you receive a more lenient standard on the manner and methods in which you prove damage. Would the order have securitized a judgment for you by requiring a township to perform a certain action that would raise the capital to fund a judgment in the event an appeal is granted? If so, perhaps your clients are best served by seeking to have an escrow account mandated with the funds deposited into it. Would receiving certain books and records permit you to prove the value of an enterprise and exit in an efficient public market? Perhaps you should compel the company that has not provided you the documents to repurchase the shares from you at fair value — providing you the same exit you would have otherwise had through arm’s-length market transactions where the information withheld is available.
We regularly consider the potential to use contempt not just as a mechanism to enforce the underlying order but to advance our client’s interest. After all, simply seeking to coerce compliance costs money and takes time to get what you should have already had in the first place. If you are going to pursue contempt, the best use of those legal dollars and muscle may well be to push past what you had been seeking in the short term (e.g., documents) and get to what you were really after (e.g., a finding of liability, remedies, damages or security).
Authors
David Graff, Shareholder – Anderson Kill
Matthew J. Silverstein, Attorney – Anderson Kill
In the realm of hospitality and gaming risk management, “securing data against unauthorized and unintentional disclosure continues to be elusive” and consistently presents itself as a problem. It is important to emphasize the need for a “strategy that includes careful contracting, quality insurance coverage, and cyber security due diligence” to fight against hacks.
“One federal court of appeals reinstated class action litigation against a large retailer that had been hacked. Another federal appeals court affirmed the Federal Trade Commission’s power to police business’ cyber security for consumer information.Reading the tea leaves, 2016 does not promise to be any better.”
Joshua Gold and Marshall Gilinsky highlight the importance of risk management and insurance coverage. They explore FTC requirements, key steps to take in order to secure data, insurance coverage focusing on “cyber-losses”, and examining your coverage.
Read the full article here.
]]>Your insurance should cover income loss not only when operations are completely shuttered, but also when your business is partially suspended. The distinction is important to hotel owners and operators, especially those with amenities or services like restaurants, spas and seasonal activities, which are more likely to operate on a reduced level after a loss. Historically, many business interruption provisions required a “necessary suspension” of operations. These older policies and forms did not define “suspension” or state whether complete shutdown was necessary. To understand the likelihood and extent of business income loss recovery, policyholders should be aware of the actual terms provided under their business interruption coverage and should recognize that there are some differences between jurisdictions in how they approach this issue.
Must There Be a Complete Cessation of Operations?
In New York, if a policy requires a “necessary suspension” of operations, where the term “suspension” is not defined, the courts have held that the policyholder’s business must have experienced a “total interruption or cessation” of operations.Broad St., LLC v. Gulf Ins. Co., 37 A.D.3d 126 (N.Y. App. Div. 2006) (after loss on 9/11, building owner could recoup lost business income from insurance but only up to the point that tenants were again allowed to reside in building). The result is similar in California, where courts have held that a “necessary suspension” of operations “connotes a temporary, but complete, cessation of activity.”Buxbaum v. AETNA Life & Cas. Co., 126 Cal Rptr. 2d 682, 688 (Cal. Ct. App. 2002) (emphasis added) (law firm did not trigger business interruption coverage because there was no complete cessation of operations when evidence showed that attorneys continued to bill hours following incident of water damage in office building).
Policyholders should therefore note that if “suspension” is not defined in the policy, some jurisdictions have followed a narrow interpretation of coverage — thereby preventing policyholders from recovering income loss where there is only a partial cessation or a slowdown of business.See, e.g., Keetch v. Mutual of Enumclaw Ins. Co., 831 P.2d 784 (Wash Ct. App. 1992) (because motel remained partially open, policyholder could not recover under business interruption coverage despite dramatic decrease in occupancy caused by ash from volcanic eruption).See also Apartment Movers of Am., Inc. v. One Beacon Lloyds of Texas, 170 Fed. Appx. 901 (5th Cir. 2006) (slowdown was not a necessary suspension of operations to trigger coverage for loss of business income). This narrow interpretation of coverage often conflicts with the obligation to mitigate losses that is sometimes imposed on the policyholder by the insurance policy.
Fortunately, some jurisdictions, like Pennsylvania, have taken a more reasonable approach and have not required a complete cessation of operations. In American Med. Imaging Corp. v. St. Paul Fire and Marine Ins. Co., 949 F.2d 690, 693 (3rd Cir. 1991), the court examined a policyholder’s claim for business interruption coverage after a fire incident that damaged its headquarter offices. The policyholder was able to resume operations in a temporary location, but at a reduced level due to an interruption in its telephone system. The policyholder, a provider of ultrasound testing services to physicians and health care institutions, depended on the telephone system for orders, scheduling, and preparation of written test reports for existing and new business. The policyholder sought business interruption coverage for the lost earnings and extra expenses caused by the incident and relocation, particularly the disruption of the telephone system. The trial court ruled in favor of the insurance company. On appeal, however, the result was different and the appellate court rejected the insurance company’s suggestion that coverage was precluded because the policyholder “would be carrying on the same kind of activities [elsewhere] that occurred at the covered location.”Id. at 692.
The appellate court held that under the trial court’s decision “the insured would have no motivation to mitigate its losses” as “[c]ontinuing in business at any level would bar recovery because the insured would be carrying on the same kind of activities that occurred at the covered location.”Id. at 692. Moreover, the appellate court noted that the policy imposed “an affirmative duty [on the policyholder] to mitigate its losses.”Id. at 693. The court ruled that the insurance company’s “obligation to indemnify continues until the resumption of ‘normal business operations,’” and as such, “the obligation to indemnify can arise while business continues, albeit at a less than normal level.”Id. at 693. The case confirms that a policyholder can still recover lost income under its business interruption policy when it operates in a partial or reduced mode.
More recently, iniCue Corp. v. USF&G, Civil No. 07-1871 (E.D. Pa. April 23, 2008), an unpublished case, the federal court in Pennsylvania held that “suspension,” as used in the insurance policy, included both partial and total cessations. In that case, the court also allowed lost business income covered by insurance to include the time period when the insurance company delayed making payments to fully restore the policyholder’s operations.
New Forms Cover Slowdowns
In recent years, the insurance market has responded to the need for coverage of a partial cessation or slowdown in business operations. For example, in 1999, the Insurance Service Office (ISO) Business Income (and Extra Expense) Coverage Form (a standard form often used in insurance policies) was updated to add a specific definition of “suspension” as “[t]he slowdown or cessation of your business activities.” (ISO Form CP 00 30 10 00). Today, most brokers and insurance companies covering the hospitality industry have access to forms that affirmatively state the policy “shall cover the loss resulting from complete orpartialinterruption of business.” (Emphasis added). The use of such updated forms can avoid many of the problems created by court decisions that narrowly interpret the coverage extended under older policy forms.
Policyholders experiencing a partial interruption, such as closure of some but not all rooms, amenities or services, should review the terms of their policies and become familiar with the rules that apply in their jurisdiction. In planning for the future, policyholders should confirm that their policy covers both complete and partial interruptions. If appropriate, policyholders should ensure that they have other beneficial coverage, such as reimbursement for expenses associated with professional services needed to prepare a business interruption claim. Professional services are becoming increasingly necessary to calculate and recover insurance for business interruptions, especially when a policyholder is seeking recovery due to lost patrons or the need to discount rates because amenities or services are unavailable. This consideration can be particularly important for destination hotels where patrons visit with the expectation of using many amenities and services. The policyholder may need to hire a forensic accountant to calculate the amount of business income loss sustained. These costs can be expensive and might be covered under a professional fees or “LOSS ADJUSTMENT EXPENSE” provision. Work with a knowledgeable broker to get the coverage that suits your business.
When claims arise, insurance companies will often look for ways to deny coverage or diminish their exposure to the loss. After charging you premiums based on the entirety of your business operations, these insurance companies should not be so quick to deny coverage to you on the grounds that you merely suffered a slowdown or partial interruption. If your insurance company is not fully cooperating, you should engage the services of an insurance recovery attorney who can assist you in getting the insurance company to honor its obligations under the policy.
Co-authors: Vianny M. Pichardo and Allen Wolff
]]>Many hospitality industry companies attempt to mitigate employee theft loss by purchasing insurance designed to provide coverage to the company when a theft occurs. These policies, typically called commercial crime or fidelity policies, can in some cases provide the loss mitigation and risk transfer for employee theft that the policyholder believes it has accomplished through purchase of the policy. However, these insurance policies also have numerous traps for the unwary that may result in the forfeiture of this valuable risk transfer and loss mitigation tool.
Below we provide some tips for avoiding those traps. The purpose of this article is to provide a hospitality industry company with a summary of best practices and a useful, practical checklist to be used in the unfortunate event it sustains a loss due to employee theft.
Motives for Employee Theft
Employee theft is the product of a number of factors and is perpetrated by employees at all levels of the organization, from hourly workers to senior management. One in three crimes involving employee theft involves a management-level employee. Employees who steal from their employer do so for a variety of reasons, such as personal financial difficulties or simply because the opportunity presents itself.
A lack of adequate internal controls gives the employee access to assets and an opportunity to steal without detection. Typically the crime starts on a small scale, and then as the theft continues undetected the employee becomes bolder and the amount of the theft — i.e., loss — increases.
Mitigating Loss From Employee Theft Through Insurance
Adopting internal controls and employee oversight will always be the company’s first line of defense against employee thefts. But no system is perfect, and employee theft is likely to occur despite a company’s efforts. Hospitality companies accordingly seek to mitigate their employee theft losses by purchasing commercial crime or fidelity insurance. These policies, which are usually standalone policies, typically provide coverage for employee dishonesty, forgery document alteration, computer fraud and fraudulent funds transfer. While they are not a substitute for vigilance against employee theft, they are a critical component of a company’s broader scheme to prevent employee theft losses.
But purchasing a commercial crime/fidelity insurance policy is useless unless the policyholder knows how to navigate a claim. These policies impose various duties on the policyholder seeking coverage for a loss, and a breach of these duties can result in a forfeiture of coverage.
Policy Traps for the Unwary
Commercial crime/fidelity policies have certain peculiarities that can trap the unwary policyholder and its attorney. For example:
Timing: When Did You Learn of the Loss? When did the claim accrue, and when did the policyholder first become aware that it suffered a covered loss? Under crime/fidelity policies, the policyholder is required to submit a proof of loss by a certain date or forfeit coverage–and that date is determined by when the policyholder knew it had a loss. As such, under these policies, timing is everything. It is crucial to review your policy and determine when your proof of loss is due.
Timing: How Did Your Loss Happen? These policies set out firm, specific time limits for the policyholder to meet its burden in proving how the loss occurred, and quantifying the amount of the loss. These often pose a major hurdle to coverage for the unwary policyholder. For a variety of reasons, the policyholder cannot rely on law enforcement for this purpose. Proving and documenting the loss can take some time, and the policyholder’s best practice in this regard is to construct a team early on consisting of a forensic CPA, other experts as required (forgery expert, computer experts, etc.), a coverage attorney and someone in the policyholder’s senior management to work with the team.
Limits: The limits of coverage under the policy may be different depending on how the crime was perpetrated.
Exclusions: The policyholder must understand what is excluded under the policy as it conducts its investigation into the loss, and be aware when it submits its proof of loss to the insurance company.
Insureds: One would expect that the policyholder’s employees are covered under the policy. But this often is more complicated than it seems. Was the perpetrator an employee at the time of the theft? Are independent contractors covered under the policy?
Avoiding these traps requires specialized knowledge and diligent investigation and documentation. Fortunately, there is at least one offsetting common policy provision that will cover the policyholder for properly pursuing its claim: the costs incurred from a team approach to proving and documenting the loss will often be covered in whole or in part by the insurance company, but only if the policyholder complies with certain terms of the policy in this regard.
Checklist
Maximizing a claim and minimizing the chances of further loss when employee crime occurs requires a systematic approach. Following a loss, we recommend addressing the following questions promptly:
Know Your Policy, Document Your Claim
Commercial crime/fidelity policies can be a useful tool for the hospitality company seeking to mitigate the risk associated with employee crime. For these policies to fulfill their function, however, the policyholder needs to be aware of the requirements they impose on the policyholder with respect to notice, documentation and burdens of proof.
]]>Fungi and Bacteria Exclusion
The standard Fungi and Bacteria Exclusion is not as broad as the name may imply. Endorsed to many comprehensive general liability policies,the Fungi and Bacteria Exclusion does not eliminate coverage for all claims arising out of exposure to a fungi or bacteria, but only when the fungi are “on or within a building or structure…” There are numerous places within a hotel or resort where a guest could potentially be exposed to a harmful bacterium or fungi: Outdoor swimming pools, golf courses, gardens, spas, parking lots, ski slopes, etc. If it’s not in a building or structure, it’s not excluded under the Fungi and Bacteria Endorsement.“Building” and “structure” are usually not defined in the standard Fungi and Bacteria Exclusion. Alert policyholders can employ this vagueness in their evaluation. Exclusions are construed narrowly and ambiguous terms are resolved in favor of the policyholder in most jurisdictions. Therefore, if there are reasonable grounds to say that something is not a building or structure,then it’s not a building or structure with respect to the Fungi and Bacteria Exclusion. So long as it is possible that the exposure occurred somewhere on the property other than a building or structure, the insurance company will generally owe a complete defense in the matter.
Pollution Exclusion
Perhaps recognizing that the Fungi and Bacteria Exclusion did not completely eliminate the potential for coverage, more and more insurance companies are seeking to expand the scope of the pollution exclusion to include Fungi and Bacteria. “Pollution” is often defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste . . .” As virtually any substance could theoretically be shoehorned into that definition by a clever insurance company, many carriers have aggressively relied on the pollution exclusion to limit coverage. A recent decision by the Eleventh Circuit Court of Appeals highlights a flaw in the insurance industry’s reasoning. The court reasoned that if fungi and bacteria were included within the scope of the Pollution Exclusion, there would be no reason at all for the existence of a Fungi or Bacteria Exclusion. Westport Insurance Co. v. VN Hotel Group, LLC, 2013 WL 1196957 (11th Cir. Mar. 22, 2013). Because every claim triggering the Fungi or Bacteria Exclusion would already be excluded under the Pollution Exclusion, the Fungi or Bacteria Exclusion would serve no useful purpose. Such a result would fail to give full meaning and operative effect to the entire policy – a standard rule for interpreting insurance policies. See id. at * 9. As such, the Court rightly recognized that the fungus and bacteria fell outside the scope of “pollutant” under the policy.
Conclusion
Dealing with bacteria and fungus claims can be a headache for any hotel or resort for many reasons – but uncooperative insurance companies should not be one of them. By understanding the limits of the Fungi and Bacteria Exclusion and the Pollution Exclusion, a hotel or resort can substantially increase its chance of recovery from its insurance company without the need to resort to expensive litigation. Of course, given the complexity of these cases and the nuances of each individual insurance policy, it is always recommended that coverage counsel be consulted for any specific matter.
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