Renowned Seattle Restaurant Group Leads Charge in Lawsuit Against Insurance Company

Our firm has filed a lawsuit against Fireman’s Fund Insurance Company in King County Superior Court on behalf of Ethan Stowell’s restaurant group (ES Restaurant Group). The lawsuit arises from Fireman’s Fund denial of ES Restaurant’s Group’s claim for business income loss coverage arising from the COVID-19 pandemic.

“This lawsuit concerns a carrier that intentionally removed its disease exclusion, but now claims its policy does not cover business income losses caused by a disease—COVID-19,” said Tristan Swanson, ES Restaurant Group’s lead lawyer. “What’s especially concerning is that Fireman’s Fund has likely misrepresented this in every denial across Washington State, given that the company appears to be denying claims by cutting and pasting the names of restaurants into a template response, falsely asserting that a disease exclusion may bar coverage in each one.” Tristan added that “he is proud to be representing a client like ES Restaurant Group; one that is willing to fight a battle which will likely benefit restaurants state-wide.” Continue Reading

Miller Nash Submits Amicus Brief on Business Interruption Coverage

Our policyholder-side Insurance Recovery Practice Team is proud to represent United Policyholders and the National Independent Venue Association in submitting an amicus curiae (friend of the court) brief in opposition to a motion to dismiss filed by the insurer in Dakota Ventures v. Oregon Mutual Insurance, pending in the District of Oregon. A copy of the brief is here. Our brief advocates for the faithful application of Oregon law, under which insurance policies that contain vague or unclear language are interpreted broadly in favor of the insured, to one of the key issues in many pending business interruption cases: whether the current pandemic can constitute “direct physical loss of or damage to” insured property.

Dakota Ventures operates a restaurant and grill in Washington State and was insured under a policy issued by Oregon-based Oregon Mutual. Dakota Ventures, like many restaurants, closed down in March 2020 due to the pandemic, but was denied coverage for its business income loss.

At this point, it is unknown when the court will rule on the motion to dismiss.

Vandalism or Looting Impacted Your Business? Insurance Coverage & What to Do Now

The historic protests responding to the death of George Floyd and calling for racial justice have been accompanied, in some cities, by property damage and looting. The motivations behind the damage may make little difference to business owners already dealing with losses due to pandemic-related closures. Fortunately, insurance coverage is usually available for vandalism and theft under standard business property policies, and may pay both to repair the damage and for lost business income. Claims for business income loss may be disputed at the valuation stage due to the pandemic but should be pursued regardless. Continue Reading

Complimentary Webcast: Business Interruption Insurance Coverage

As we continue to provide our audience with updated information on developments in business interruption insurance coverage, we are inviting you to join this free virtual program which features Northwest Policyholder blog creator and editor, Seth Row, as a panelist.

Session II: Business Interruption Insurance Coverage
Date: Tuesday, May 12, 2020
Time: 11:00 AM Pacific/ 2:00 PM Eastern
Duration: 1 hour
More info: Click here

You are invited to join this webcast as we review existing policy clauses and best practices to submit a claim, how to document and support your claim, as well as current regulations and anticipated assistance from federal and state government. Northwest Policyholder blog creator and editor, Seth Row, is a panelist for this virtual program. 

The ELA is proud to present a complimentary webinar series on topics and challenges that have come to the forefront for employers due to the COVID-19 pandemic. The Straight Talk Series features legal specialists from key practice areas in candid, direct conversations addressing your most important questions. The format is driven by interactive discussions, audience polls, and Q&A. Participants can submit questions in advance or during the live program.

Use link below to register to join this webcast.

Registration LinkClick here

Protecting Your Business’s Data, and Cyber Insurance, Is More Important Than Ever

With a majority of businesses being run from home, using less secure networks, and disrupting normal security protocols, hackers are seeking to capitalize. The FCC and the FTC have seen an uptick in scams during the pandemic in the form of fake charities requesting donations, fake sources offering financial relief, fake information regarding COVID-19 vaccines, and phishing e‑mails. Ransomware attacks are also increasing as hackers prowl the Internet for vulnerable systems, while VPNs are in high demand.

Secure Your Information

Maintain security while working from home. Businesses should be taking reasonable measures to ensure the safety of personal information during these challenging times. Examples include:

  • Encrypting video chat platforms and securing meetings with access codes for attendees. Most communication platforms encrypt chat programs by default, but this is not the case with video programs.
  • Reminding employees to be aware of what’s in sight during video calls. Employees should be sure that confidential information is not visible to those with whom they are conferencing.
  • Reminding employees that they should continue to use the same verification processes that they would use in the office to confirm the accuracy of payment requests. Remember: failure to use normal protocols may void insurance coverage or other risk-management protections.

Continue Reading

Five Things To Do Now to Protect Your Business Interruption Insurance Claim

Businesses are hurting due to COVID-19 slow-downs and closures. Here is my top-five list of things to do to protect your right to collect on your business interruption (a/k/a business income) insurance:

5. Don’t Believe the Propaganda. The insurance industry is trying to stop business owners from making claims by repeating the mantra “no insurance available for COVID-19 claims.” That’s just not true. While some businesses have “virus” or “communicable disease” exclusions, we are finding that many of our clients’ policies don’t have that exclusion. (One analysis is that 80% of policies don’t.) And even with that exclusion, hope is not necessarily lost. There are many, many different kinds of business income policies out there—the specific wording of your policy (even very minor differences) will matter. When an insurer tells you that virus contamination isn’t “property damage” remember that most policies are written on an “all-risk” basis, meaning that it is up to the insurer to clearly exclude something as a “cause of loss.” Courts in Oregon, Washington, and elsewhere have found that contamination from smoke, chemical odors, and e coli counts as “physical loss or damage.” Also, most policies contain “civil authority” coverage that overrides any requirement that your property be damaged—meaning that if you lose business due to a “stay-home” or “shelter-in-place” government order, like the one just announced in Oregon, or the Washington restaurant order, you may have coverage. Continue Reading

Insurance Recovery for COVID-19 Losses

The economic fallout from COVID-19 has been swift and severe. Moratoriums, quarantines, and bans will continue to upend daily life and with this impose severe economic consequences on regional, national, and international commerce. While the federal government struggles to prop up the overall economy, many businesses are looking to what, if any, specific relief might be had. This search inevitably leads to insurance. Unfortunately, the question of whether commercial lines insurance might cover COVID-19 related losses results in a lawyerly answer: it depends. More specifically it depends on the (1) the type of insurance purchased, (2) the wording of individual policies, and (3) the particular circumstances surrounding each business’s loss. Continue Reading

Northwest Data Breach Laws Are Changing—Is Your Cyber Insurance Keeping Up?

Legal requirements for managing consumer data and handling data breaches are changing, so now is a good time to check your cyber insurance to make sure that it is keeping up.

New Oregon Law + Proposed Washington Law + California CCPA = Increasing Business Risk. Oregon’s amended data breach notification law, effective January 1, 2020, creates breach notification requirements applicable to third-party vendors—the first state law to do so. The Oregon Consumer Information Protection Act (CIPA) now requires that vendors notify the Oregon Attorney General of a substantial breach of security not later than 45 days after discovering the breach. The Bill also requires vendors to notify the “covered entity” (the owner of the data) not later than 10 days after discovering that a breach has occurred (the owner then has 45 days to report the breach to the Attorney General). Key other amendments to the law include the following: Continue Reading

Oregon Court: Common Commercial Property Insurance Suit-Limitation Clause is Ambiguous

Oregon federal Magistrate Judge Stacie Beckerman gave policyholders an early Christmas present on December 20, 2019, holding that the most commonly-used suit limitation clause in commercial property insurance is ambiguous, and that therefore the policyholder had two years from the discovery of hidden water damage to file suit against the insurer. This ruling provides additional clarity to the interpretation of a widely-used coverage form, in the context of one of the most common property-loss scenarios in the Pacific Northwest: hidden decay over many years due to water infiltration.

Continue Reading

Washington Supreme Court: Consumer Protection Act Applies Broadly, Federal Courts Wrong

In Peoples v. USAA, decided on November 27, 2019, the Washington Supreme Court held that insurance companies can be liable under Washington’s Consumer Protection Act (RCW Ch. 19.86) if they violate Washington claims-handling regulations and wrongfully deny benefits, even if the underlying claim is for personal injuries. In this case the plaintiffs alleged that USAA’s computer algorithms wrongfully denied coverage for medical provider costs, which are generally covered under auto policies as “personal injury protection” or “PIP,” without any individualized assessment of the costs. Washington’s CPA prohibits “unfair or deceptive practices in trade or commerce” and allows anyone who is “injured in [their] business or property” to sue for damages (including treble damages) and injunctive relief, plus attorney fees. The insurer argued that even if their denials were wrong, they did not injure these plaintiffs’ “business or property,” as the underlying claims were for personal injuries. Announcing a new rule (and disagreeing with several previous federal-court decisions), the Washington Supreme Court held that “the deprivation of contracted-for insurance benefits is an injury to ‘business or property’ regardless of the type of benefits secured by the policy.” Continue Reading

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