On Monday, December 20, District of Columbia Mayor Muriel Bowser announced a “situational update,” declaring a state of emergency due to the “Winter 2022 Surge” in COVID-19 cases driven by the Delta and Omicron variants. The District will combat the current rise in COVID-19 cases with a six-pronged approach outlined in an action plan (the “Plan”) published by the Mayor’s Office and implemented under Mayor’s Order 2021-147 (the “Order”).  The Plan includes expanding free testing programs, a new indoor mask mandate, and a vaccine mandate for city employees and contractors.

Expanded Testing

The District has been operating a program called “Test Yourself DC,” which provides free PCR testing kits for use at home. On December 20, 2021, nine new pick-up/drop-off sites were added to the program, making a total of 36 locations available. The Test Yourself locations are in addition to the eight public testing sites staffed by health professionals administering free PCR COVID-19 tests. Further, the program will be expanded to include “Test Yourself Express,” which will offer free at-home rapid antigen COVID-19 testing kits at eight DC public libraries. District residents who provide proof of residency will be permitted to get two free rapid tests per day and must report their results via an online portal.

Continue Reading More Tests, Mandatory Masks, and Another Vaccine Mandate: The District of Columbia Steps Up Its Battle Plan

The first COVID-19 vaccines have started being shipped across the U.S. with the expectation that millions of doses will be administered over the next few weeks, with many times more over the coming months.  This is unequivocally good news and reason for optimism.  Meanwhile, however, the pandemic continues to spread nationwide and the numbers are

Following up on our recent post about a business interruption insurance decision by a Washington D.C. court, a federal judge in Missouri ruled last month, in Studio 417, Inc., et al. v. The Cincinnati Ins. Comp., No. 20-cv-03127-SRB, that businesses can sue their insurance carrier for business interruption losses caused by COVID-19.

Plaintiffs, owners of

On August 6, 2020, in Rose’s 1 LLC, et al. v. Erie Insurance Exchange, a District of Columbia trial court granted an insurer’s cross motion for summary judgment on the issue of whether COVID-19 closure orders constitute a “direct physical loss” under a commercial property policy. Plaintiff insureds (“Insureds”) own several restaurants in Washington D.C. that were forced to close and suffered serious revenue losses stemming from the Mayor’s orders to close non-essential businesses and ordering people to stay home. As a result, the Insureds made claims to Defendant Erie Insurance Exchange (the “Insurer”) under their policies that included coverage for “loss of ‘income’ and/or ‘rental income’” sustained “due to partial or total ‘interruption of business’ resulting directly from ‘loss’ or damage” to the property insured. The policy also stated that it “insures against direct physical ‘loss.’”

Dictionary Definitions Open to Interpretation

As the Court framed the issue, “[a]t the most basic level, the parties dispute whether the closure of the restaurants due to Mayor Bowser’s orders constituted a ‘direct physical loss’ under the policy.” To support their argument, the Insureds relied on dictionary definitions of “direct” as “[w]ithout intervening persons, conditions, or agencies; immediate;” and “physical” as pertaining to things “[o]f or pertaining to matter, or the world as perceived by the senses; material as [opposed] to mental or spiritual.” The policy defined “loss,” as “direct and accidental loss of or damage to covered property.”

The Insureds relied on these definitions to make three arguments. First, they argued that the loss of use of their restaurant properties was “direct” because the closures were the direct result of the Mayor’s orders without intervening action. The Court rejected that argument because those orders commanded individuals and businesses to take certain actions and “[s[tanding alone and absent intervening actions by individuals and businesses, the orders did not affect any direct changes to the properties.”

Second, the Insureds argued that their losses were “physical” because the COVID-19 virus is “material” and “tangible,” and because the harm they experienced was caused by the Mayor’s orders rather than diners being afraid to eat out. The Court also rejected that argument because the Insureds offered no evidence that COVID-19 was actually present on their properties at the time they were forced to close and the mayor’s orders did not impact the tangible structure of the properties.

Third, the Insureds argued that the policy’s definition of “loss” as encompassing either “loss” or “damage,” required the insurer to “treat the term ‘loss’ as distinct from ‘damage,’ which connotes physical damage to the property,” and thus “loss” incorporates “loss of use.” The Court rejected that argument and held that the words “direct” and “physical” modify the word “loss” and therefore any “loss of use” must be “caused, without the intervention of other persons or conditions, by something pertaining to matter—in other words, a direct physical intrusion [onto] the insured property.” The Court held that the Mayor’s orders did not constitute such a direct physical intrusion.
Continue Reading D.C. Judge Rules COVID-19 Closure Orders Do Not Constitute “Direct Physical Loss”