Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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42 LIKE A BANK, an insurance company's business model relies on the fact that every customer is not likely to withdraw all their money or make a claim at the same time. For certain types of insurance claims, COVID-19 may resemble that run-on-the-bank scenario, and lawyers are expecting the wide-ranging nature of the pandemic to lead to a flood of insurance litigation. "I think insurers, generally, are going to be facing the full gamut of potential claims on policies," says Christine Viney, a Bennett Jones LLP partner in Calgary, whose commercial litigation practice involves insur- The pandemic will lead to a flood of insurance litigation and — just like after 9/11 — the insurance industry will adapt in expectation of a recurrence, say lawyers Pandemic interruption insurance LEGAL REPORT INSURANCE ance and professional negligence matters. Lawyers also say the pandemic will lead to a reorientation of insurance products, like the adaptation of the U.S. insurance system after 9/11, which included the emergence of terrorism insurance. But as the virus infec- tion rate and death toll climbs, there's a live debate on which COVID-19-related economic losses will be borne by insurance providers. A pandemic is known in the insurance industry as a "clash event," says Eric Knutsen, a Queen's law professor and insurance law and tort expert. It affects a variety of people, across borders, who will make claims against multiple lines of insurance, all at one time. In the wake of COVID-19, policy holders are likely to find that many insurance poli- cies have exclusions for pandemics, just as they have exclusions for situations such as an earthquake or nuclear-war fallout, says Knutsen, who was former associate dean of the Queen's law faculty and has co-authored insurance law textbooks for the U.S. and Canadian systems. Lawyers told Canadian Lawyer that Canada's shutdown of all non-essential busi- nesses will lead to an avalanche of claims under certain types of commercial property policies: business interruption insurance, contingent business interruption insurance, ingress egress insurance and civil authority coverage. With business interruption insurance, businesses can recover lost profits if an insur- able event causes them to shutter operations. But because commercial property policies require a direct physical loss or damage, the key question is whether a pandemic will "I think insurers, generally, are going to be facing the full gamut of potential claims on policies." Christine Viney, Bennett Jones LLP

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