Jerry Meandering

by Jerold Oshinsky

A Partner with Kasowitz Benson Torres LLP, Jerold Oshinsky has more than 35 years of experience litigating insurance cases in federal and state courts throughout the country. Chambers USA consistently has designated him as the only lawyer to be accorded “Star” ranking in its national insurance category. Jerry has been a resident of Montecito for 14 years. Vive La France P olicyholder lawyers in the USA In fact, there is coverage for business are singing “La Marseillaise” interruption losses that exist directly after a decision last week in Paris or indirectly as a result of the coronaholding in favor of a French restaurant virus. I have personally been involved group seeking insurance coverage for in similar cases here in California and a COVID-related “administrative clothroughout the USA and the UK, so I sure” of its four restaurants in Paris find that this Paris decision is the first which caused lost profits and extra positive step to overcome insurance expense. This is an “order of civil companies’ penchant for fiction that authority” in our parlance. their insurance policies do not apply

According to Reuters, “the ruling to the current pandemic. will be of interest to restaurants, cafés, and nightclubs in Britain and the United States which are also threatenThe Numbers Do Not Lie ing legal action against insurers who On the first point about going bankhave not paid out on business interrupt, look up your favorite insurance ruption policies.” More than 200 such company and check out how many lawsuits already have been filed. From billions of dollars they pocketed over Yorktown in 1781, where Washington the last five years. Even in this disasrendezvoused with Rochambeau and trous year of 2020, you will be astonLa Fayette to defeat the British army ished at insurance company earnings at Yorktown, to Paris last week in an and premiums written. insurance decision which is “going viral,” the French have blazed a trail for us. AXA, the insurer in the Paris All Risk case, advanced the same mantra that On the second point about what we hear from insurers in the USA – this these policies were intended to will bankrupt us, we never intended to cover, remember that the insurance cover pandemics and we have exclupolicies in question are ALL RISK sions for losses caused by a virus, so property insurance policies that au revoir but... not so fast. We are concover all risks of physical loss OF or fronting and refuting the same arguphysical damage TO property unless ments by insurance companies here in specifically excluded or limited by California and throughout the country. other parts of the insurance policy. Insurance company claims people are trained to argue that you must have an alteration in your property... something tangible.

Insurance companies also apparently forget that they also sell liability insurance which usually defines covered property damage to include “physical injury to tangible property.” They pretend that their property insurance has the same meaning, but it clearly does not. What did the French judge say about this predictable argument? He first noted that the insurer “claims that the enforcement of the administrative closure clause must be triggered by the prior occurrence of an event covered by the operating losses provision.” In response, the judge noted that the administrative closure clause was “an EXTENSION of the operating losses coverage,” just as it often is in our policies. Thus, he ruled that no prerequisite was required contractually, and in strong words for a French civil court judge: “this baseless claim shall be rejected.”

Takeout

The judge also commented on the insurer’s argument that these Parisian restaurants could do “takeout” and

Muller Monthly Music Meta June 2020

Our new monthly music-themed crossword puzzle is created and brought to you by Montecito resident Pete Muller and runs in the Washington Post and the Montecito Journal. New puzzles every first Tuesday of the Month.

Puzzle 6: “Triple Feature” Solution

The June MMMM challenged solvers to find a song from the ‘60s. Six circled letters in the completed grid spell out A-R-O-U-N-D, pointing to one of many ‘60s songs with “Around” in the title. But which one? “Runaround Sue” by Dion? “I Get Around” by the Beach Boys? “4th Time Around” by Dylan? Or one of the many others?

The trick is to notice the repeated triplet letter strings that go around the grid, each surrounding the black-square “fingers” that originate from one of the four grid sides: LOV, EIS, ALL, THE, TRO, and GGS. These triplets are hinted at by the puzzle title, “Triple Feature.” Putting them together gives you “Love Is All Around” by the Troggs, this month’s meta answer.

Quite a few (42!) solvers saw AROUND and the puzzle title and submitted “Turn! Turn! Turn!” That answer, unfortunately, is for the Byrds!

were not fully closed down. Has anyone reading this article ever done “takeout” from a two-star Michelin rated Parisian restaurant? Apparently the judge had not either and he rejected the argument as “non-serious.”

We’ll Always Have Paris

All of which takes us to the most notable ruling in the case – that the coverage applies to these losses unless the policy specifically contained a “PANDEMIC EXCLUSION.” Having none, the coverages remain in play and the judge appointed an expert to calculate the damages owed to the restaurant.

This is an important ruling because many policies contain some version of a virus exclusion which would not be effective to eliminate coverage because pandemic exclusions also exist but rarely are used. The insurer, AXA, said that it is “looking to compensate” its restaurant clients.

The restaurant owner, Stephane Marigold, stated that “This decision in Paris has a global resonance.” A couple of tables from his famous restaurant, Maison Rostang, are shown in the enclosed picture.

From my perspective: “This could be the beginning of a beautiful friendship.” •MJ

For those looking forward

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