COVID-19

COVID-19

These are unprecedented times. Each day brings new reports of COVID-19 cases and increasingly significant impacts on communities and businesses, with all parties attempting to understand the legal ramifications of these developments. As you can imagine, many legal issues are arising in the wake of this virus including insurance, employment, healthcare, and many others.

This entire situation is complicated, and litigation is evolving rapidly. In an effort to proactively assist our clients, we have formed a COVID-19 Response Team for the specific purpose of addressing the needs of businesses that are facing issues arising from the COVID-19 outbreak. Members of this new team are fully prepared to advise on various areas of COVID-19 litigation.

Although the COVID-19 outbreak was unexpected and remains unpredictable, it provides businesses with opportunities amongst the challenges. Our attorneys are available to give quick and complimentary advice on each of these critical issues and to help determine the most appropriate way to proceed, whether through litigation, negotiations, or other means to resolve disputes.

Insurers will undoubtedly see a large percentage of COVID-19 related litigation connected to business losses sustained from both state and federal quarantine orders. Across the country, businesses have closed in response to the shutdown orders and financial losses are inflating at a record pace every day that Americans are unable to work. David Sampson, President and CEO of Property Casualty Insurers Association of America, estimates that U.S. business losses could be between $220 - $383 billion per month during the COVID-19 government ordered shutdown.

Insurance coverage for business interruption due to a Civil Authority Order generally applies when access to the insured's property is prohibited due to a governmental order issued as a result of direct physical loss, or damage to property adjacent to, or nearby, the insured's property.

The legal system is already experiencing an influx of lawsuits by business owners for recovery of their financial losses during the pandemic. Business owner Plaintiffs are filing breach of contract and bad faith claims against their insurance companies for denying them financial coverage for their business losses under the Civil Authority Order provisions of their policies. As this is unprecedented territory in American jurisprudence, business interruption litigation will pose its own unique set of challenges. The United States judicial system and the American Insurance Association are, at best, under prepared and inexperienced on how to handle the inevitable onslaught of complex legal issues from the worst economic disaster in American history.

How we can help:

  • Analysis of risk and viability of a Plaintiff's claims for business interruption losses
  • Interpretation and assessment of coverage for business interruption claims and specific civil authority order policy provisions
  • Advice on how to avoid bad faith when denying COVID-19 related business interruption claims
  • Defending claims against the policy quickly and efficiently with our extensive experience and knowledge of natural disaster and civil authority order litigation

There is an unprecedented risk to corporations for class action lawsuits stemming from the COVID-19 pandemic. Business closures, layoffs, financial losses, physical injuries, entertainment cancellations, and many more pandemic related events make insurers vulnerable to opportunistic class action litigators.

How we can help:

  • Consultation and defense against the seven major areas for COVID-19 class action lawsuits
  • Guidance on the Defense Production Act
  • Analysis of insurance policies to prove coverage and secure recoveries
  • Breach of contract defense due to impossibility of performance, frustration of contractual purpose, and performance threatened by virus exposure
  • Defense and motion practice on majeure clause enforcement

On March 23, 2020, the SEC warned companies to inform investors of potential coronavirus related business risks. As the stock market continues to jump from record highs to lows with the span of days, directors and officers must defend themselves and their decision making against angry stockholders over claims of corporate mismanagement. Potential lawsuits against D&O's will consist of allegations of mishandling COVID-19 related activities or that pertinent facts were never disclosed to investors regarding the risk of the pandemic.

How we can help:

  • Consultation and advisement on the rules, regulations, and compliance of the Securities Exchange Act
  • Counsel on reductions or changes to the workforce
  • Insurance defense for claims against wrongful acts, errors, omissions, misstatement, and breach of duty
  • Medical legal and Hospital defense

Insurers may not be prepared to defend against COVID-19 related discrimination / retaliation claims from protected class citizens. Elderly and disabled employees are seeking compensation for targeted termination due to their potential for heightened susceptibility to COVID-19 complications, or out of retaliation for their refusal to work in high risk environments.

How we can help:

  • Guidance on EEOC guidelines and claims process
  • Consultation on employer/business obligations during national emergency
  • Business and employment liability and claims defense

The United States entered the 2020 new year as the most powerful economic market in the world. It is no surprise that the American economy refused to halt until government mandated shutdowns forced business owners to close their doors to the public. While hardworking American business owners are praised for their attempts to retain staff and pay wages, we must examine the risks business owners face by doing business during a pandemic.

Insurers must be prepared to defend claims by employees against policyholders for negligently continuing business operations during the COVID-19 outbreak. Employees, who became infected after they continued to work at the direction of their employer and in spite of quarantine recommendations by local government agencies, may represent the highest percentage of Plaintiffs in these claims.

Plaintiff's claims will include negligence resulting in bodily injury from infection of COVID-19, emotional distress, and failure to warn third parties about a known risk of infection within the establishment. Undoubtedly, insurance defense will require in-depth knowledge of the complex legal standards and precedent setting Court rulings governing infectious disease liability and the main areas of coverage for viable claims.

How we can help:

  • Analysis of risk and viability of a Plaintiff's claims for COVID-19 exposure and infection in the workplace
  • Employer and employee obligations and liabilities
  • Counseling on employee testing, self-reporting, and leave policies
  • Interpretation and assessment of coverage under the policy provisions for COVID-19 infection and exposure
  • Identification of relevant policy exclusions
  • Advisement on the Families First Coronavirus Response Act
  • Specialized knowledge of precedent setting court rulings regarding business liability and infectious disease bodily injury claims

Tragically, COVID-19 has proven most deadly for elderly Americans living in nursing homes and assisted living facilities. Approximately 2,500 nursing home facilities in 36 states have reported COVID-19 positive residents due to an inability to contain the outbreak. The failure by medical staff to prevent or control the spread of the virus has led to an alarming surge of more than 3,600 confirmed COVID-19 deaths linked to nursing homes.

Under 42 C.F.R. §483.1, a facility must follow strict guidelines in order to qualify as a Skilled Nursing Facility in the Medicare program and as a Nursing Facility in the Medicaid program. Nursing homes are required to establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.

Nursing home facilities will face intense investigation into its compliance of all Federal, State, and local laws regarding infection and disease control regulations and professional standards of care. As an estimated 75% of nursing home facilities in the United States are almost never in full compliance with Medicare & Medicaid regulations, it is inevitable that a substantial amount of facilities will be held negligent in virus prevention and control, and that a significant amount COVID-19 resident deaths were preventable.

In the years to come, the United States legal system will be shaped by potentially record breaking jury verdicts for the wrongful deaths of elderly loved ones against the nursing home facilities and medical staff responsible for their care. It is crucial that nursing home facility insurance providers begin taking the steps to collect and preserve evidence that may be vital for its evaluation and defense of COVID-19 nursing home claims.

How we can help:

  • Defense of nursing home and long-term care facility for claims involving COVID-19 liability
  • Guidance on all Federal, State, and local laws regulating a specific nursing home facility and its professional standards of care
  • Consultation on ANA Crisis Standard of Care and CDC IOM guidelines for establishing Crisis Standards of Care for Use in Disaster Situations
  • Investigation and assessment of risk and liability for COVID-19 outbreak or death claims
  • Evaluation of facility breach or compliance with CDC guidelines for virus and disease control for Long-Term Care Facilities and Nursing Homes

Webcast

COVID-19: Long-Term Care Part 2

TITLE:
COVID-19: Long-Term Care Part 2

HOSTED BY: Steve Holden
PRESENTED BY: Eddie Carr & Alisa Hopkins

COVID-19: Construction Defect

TITLE:
COVID-19: Construction Defect

DESCRIPTION:
Hosted by: Steve Holden
Presented by: James Daniel & Kristen Lawhorn

COVID-19: Business Interruption Part 2

TITLE:
COVID-19: Business Interruption Part 2

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Alisa Hopkins & Kurt Harms

COVID-19: Class Action Lawsuits

TITLE:
COVID-19: Class Action Lawsuits

DESCRIPTION:
Hosted by: James Daniel
Presented by: Alisa Hopkins & Kristen Lawhorn

COVID-19: Workers' Compensation Part 2

TITLE:
COVID-19: Workers' Compensation Part 2

DESCRIPTION:
Hosted by: Alisa Hopkins
Presented by: James Daniel, Holden Litigation's Workers' Compensation Practice Group Leader
The Honorable Judge Tara Inhofe
Esther Sanders

COVID-19: Defending Casualty

TITLE:
COVID-19: Defending Casualty

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Greg Keogh

COVID-19: Jury Verdicts

TITLE:
COVID-19: Jury Verdicts

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Adam Boesen of Boesen Litigation Consulting, a national trial consulting firm providing a complete menu of litigation and jury consulting services, including case assessment, theme development, targeted messaging, witness preparedness, research trials and focus groups, jury selection, and trial monitoring.

COVID-19: Directors' and Officers'

TITLE:
COVID-19: Directors' and Officers'

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Alisa Hopkins

"How-To" Re-Open Panel Discussion with Holden Litigation & Medical Experts

TITLE:
"How-To" Re-Open Panel Discussion with Holden Litigation & Medical Experts

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Alisa Hopkins, Holden Litigation's Research and Writing Practice Group Leader
Neurosurgeon Dr. Clinton Baird, M.D.
Robert Wallace, Health Safety and Environmental Specialist

COVID-19: Workers' Compensation

TITLE:
COVID-19: Workers' Compensation

DESCRIPTION:
Hosted by: Steve Holden
Presented by: James Daniel

COVID-19: Long-Term Care/Home Health

TITLE:
COVID-19: Long-Term Care/Home Health

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Eddie Carr

COVID-19: Employment

TITLE:
COVID-19: Employment

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Rebecca Woodward

COVID-19: Coverage and Business Interruption

TITLE:
COVID-19: Coverage & Business Interruption

DESCRIPTION:
Hosted by: Steve Holden
Presented by: Alisa Hopkins


COVID-19 Blog

Construction and COVID
Class Actions
Workers' Compensation: Part 2
The Impact Of The COVID-19 Crisis On Social Inflation
DIRECTORS AND OFFICERS: COVID-19 Liability
Workers’ Compensation Primer For Oklahoma COVID-19 Claims
COVID-19 and Long-Term Care: As if operating LTC facilities wasn’t difficult enough
Recent EEOC Guidance on Return to Work
Business Interruption Litigation - Part 1: How to Calculate COVID-19 Business Losses

Scholarly Article by Alisa Hopkins

Business Interruption Losses
Class Action Litigation
Directors and Officers Liability
Employee Discrimination and Retaliation
Negligence 3rd Party Injury
Nursing Home Negligence and Wrongful Death
The Post-Pandemic American Jury Pool
View Full Article

Additional Resources

Leaked CDC Guidelines on Reopening

COVID-19 FAQ's

For more information, please visit our COVID-19 FAQ page:

View COVID-19 FAQ's