New year, new claims: Preparing for surge in COVID-19 liability litigation

As potential injury litigation over COVID-19 exposure ramps up, it will be critical to watch the creative arguments presented by each side, and how courts resolve these issues. (Photo: Shutterstock)

Courts are awash in coverage litigation concerning whether first-party property policies afford coverage for business interruption claims arising out of the pandemic. Positive diagnoses for COVID-19 in the U.S. now regularly exceed 200,000 per day, and daily fatalities attributed to the virus have at times exceeded 3,000. It seems only a matter of time before plaintiffs’ attorneys start pursuing claims seeking damages on behalf of those who have experienced severe illness (or alleged wrongful death) because of the virus, in particular from business and premises owners.

The liability theories could be wide-ranging. For example, it might be alleged that a business or premises owner failed to enforce a mask-wearing policy, failed to limit the number of customers or visitors, failed to clean the premises after learning someone at the premises tested positive, and/or failed to adequately ventilate. Once such claims are asserted and lawsuits filed, parties and their liability insurers could be faced with determining whether there is a duty to defend.