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Covid-19 business interruption insurance claims and absence of a virus exclusion (USA) Part 3

09 December 2021 Donald Dinnie, Norton Rose Fulbright
Donald Dinnie

Donald Dinnie

In this Californian Court of Appeal judgment previously discussed here (Part 1 and Part 2) the insured also argued, to support its contention that it incurred a suspension of operations caused by a direct physical loss of or damage to property, that no express exclusion for loss or damage resulting “from any virus” was included in the policy.

The insured argued that the failure to use a virus exclusion was on the face of it proof that the insurer actually intended to provided coverage for virus losses by not taking advantage of more specific wording that was available to it.

The court dismissed the argument saying that it improperly attempts to rely on the absence of an exclusion to create an ambiguity in an otherwise unambiguous insuring clause.

Coverage is defined in the first instance by the insuring clause.  When an occurrence is clearly not included in the coverage afforded by the insuring clause it need not be specifically excluded.

The absence of an exclusion cannot create coverage.

The position is no different in South African law.

 

First published by: Financial Institutions Legal Snapshot

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