Law360 (June 18, 2021, 11:58 AM EDT) --
So, what gives and is there any reason for policyholder optimism? The surprising answer is yes. Depending on the nature of the loss and the precise policy language at issue, there remains a plausible path to policyholder insurance recoveries in response to COVID-19 business interruption losses.
Insurers have relied primarily on two bases for denying coverage in response to COVID-19 business interruption insurance claims: (1) the coronavirus and COVID-19 do not result in direct physical loss of or damage to property; and (2) some form of a virus exclusion bars coverage.
Of the 30 New Jersey cases decided favorably to insurers, a full 28 involved a virus-related exclusion. As a consequence, the federal and state courts sitting in New Jersey have largely not opined on the direct physical loss of or damage to property issue. That is significant because not all insurance policies are created equal and many do not contain a specific virus-related exclusion.
Only six of the 23 federal court decisions going the insurer's way address the direct physical loss of, or damage to, property issue, and all six of those decisions were decided in the U.S. District Court for the District of New Jersey by a single judge, U.S. District Judge Susan Wigenton. No other federal court sitting in New Jersey has addressed the direct physical loss of or damage to property issue.
Further, of the seven New Jersey state court cases resolved favorably to the insurer, six involved the same standard-form virus-related exclusion drafted by the Insurance Services Office Inc. That exclusion provides, in pertinent part:
The remaining New Jersey state court case decided favorably to the insurer, Savage City Strength LLC v. Covington Specialty Insurance Co. decided on April 8 by the New Jersey Superior Court for Somerset County, contained an exclusion for "pathogenic or poisonous biological or chemical materials" and the court held that the exclusion was applicable to viruses and precluded coverage.
Only five New Jersey state court opinions directly address the direct physical loss of or damage to property issue.
Those opinions are almost evenly split, with two, Optical Services USA/JCI v. Franklin Mutual Insurance Co. and Westfield Area YMCA v. North River Insurance Co., resolved in favor of the policyholder.
In holding for the policyholder in the Optical Services matter decided on Aug. 13, 2020, the New Jersey Superior Court for Bergen County reasoned that there was no controlling legal authority on the issue. Ultimately, the Optical Services court reached the "inevitable conclusion" that the policyholder
The court observed further that the requisite physical damage may occur when the policyholder loses the functionality of its property:
As held in Optical Services: (1) the insurer was unable to proffer any controlling legal authority for dismissal; (2) the policyholder should be afforded the opportunity to develop its case; and (3) the policyholder made an interesting argument that physical damage occurs when a policyholder loses functionality of its property.
Similarly, on Jan. 8, the New Jersey Superior Court for Union County concluded in Westfield YMCA that the policyholder should be permitted to take discovery. In denying the insurers' motions to dismiss, the Westfield YMCA court stated: (1) "the pleading is certainly sufficient"; and (2) "there is case law in New Jersey that suggests that the physical damage doesn't have to be physical on the premises."
This is not to say that the path to policyholder recovery — even under insurance policies that contain no virus-related exclusion — will be free of hurdles.
As held by the New Jersey Superior Court for Mercer County on April 16, 2020, in TMN LLC v. Ohio Security Insurance Co., one of the New Jersey state court cases that was decided favorably to the insurer, some courts remain disposed to decide the direct physical loss of or damage to property issue favorably to the insurer even on a motion to dismiss.
In rejecting the Optical Services holding, the TMN court noted some 23 cases decided favorably to insurers after Optical Services was decided. The TMN court, however, did not account for whether the insurance policies in those insurer-friendly decisions involved a virus exclusion. Indeed, the TMN court would have ruled in favor of the insurer — on the basis of a virus-related exclusion — even if the policyholder had cleared the direct physical loss of or damage to property hurdle.
Overall, only six of New Jersey's 21 county courts have weighed in on these emerging insurance coverage issues, with no appellate rulings to date. The most that can be said at this point is that trial courts situated in New Jersey have generally enforced virus-related exclusions.
Those holdings, however, say little about those insurance policies that do not contain such exclusions and, at this point, no final conclusion can be drawn regarding the direct physical loss of or damage to property issue.
In all, despite the many decisions, the question of whether business interruption insurance is available for COVID-19 losses remains an open question under New Jersey law. Clarity will come only when appellate courts, and ultimately the New Jersey Supreme Court, weigh in.
Lee M. Epstein is a shareholder and chair of the insurance counseling and recovery practice group at Flaster Greenberg PC.
Matthew A. Goldstein is a shareholder at the firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 See Blvd. Carroll Entm't Grp., Inc. v. Fireman's Fund Ins. Co ., No. 20-cv-11771, 2020 U.S. Dist. LEXIS 234659 (D.N.J. Dec. 14, 2020); 7th Inning Stretch LLC v. Arch Ins. Co. , No. 20-cv-08161, 2021 U.S. Dist. LEXIS 11326 (D.N.J. Jan. 19, 2021); Arash Emami, M.D., P.C., Inc. v. CAN & Transp. Ins. Co ., No. 20-cv-18792, 2021 U.S. Dist. LEXIS 60753 (D.N.J. Mar. 11, 2021); Manhattan Partners, LLC v. Am. Guar. & Liab. Ins. Co ., No. 20-cv-14342, 2021 U.S. Dist. LEXIS 50461 (D.N.J. Mar. 17, 2021), reconsideration denied, 2021 U.S. Dist. LEXIS 100110 (D.N.J. May 24, 2021); 7th Inning Stretch LLC v. Arch Ins. Co., No. 20-cv-08161, 2021 U.S. Dist. LEXIS 58477 (D.N.J. Mar. 26, 2021); Ralph Lauren Corp. v. Factory Mut. Ins. Co. , No. 20-cv-10167, 2021 U.S. Dist. LEXIS 90526 (D.N.J. May 12, 2021).
 See FAFB LLC v. Blackboard Ins. Co., No. MER-L-000892-20 (N.J. Super. Ct. Mercer Cnty. Oct. 30, 2020); Mac Prop. Grp. LLC v. Selective Fire & Cas. Ins. Co. , No. CAM-L-002629-20, 2020 N.J. Super Unpub. LEXIS 2244 (N.J. Super. Ct. Camden Cnty. Nov. 5, 2020); Precious Treasures, LLC v. Markel Ins. Co., No. CAM-L-002690-20 (N.J. Super. Ct. Camden Cnty. Nov. 13, 2020); Mattdogg Inc. v. Phila. Indem. Ins. Co ., No. MER-L-000820-20, 2020 N.J. Super. LEXIS 250 (N.J. Super. Ct. Mercer Cnty. Nov. 17, 2020); TMN, LLC v. Ohio Security Ins. Co., No. MER-L-000821-20 (N.J. Super. Ct. Mercer Cnty. Apr. 16, 2020); II Giardinello Inc. v. Fitchburg Mut. Ins. Co., No. OCN-L-001447-20 (N.J. Super. Ct. Ocean Cnty. Apr. 29, 2021).
 See Savage City Strength, LLC v. Covington Specialty Ins. Co., No. SOM-L-000831-20 (N.J. Super. Ct. Somerset Cnty. Apr. 8, 2021).
 See FAFB LLC v. Blackboard Ins. Co., No. MER-L-000892-20 (N.J. Super. Ct. Mercer Cnty. Oct. 30, 2020); Mac Prop. Grp. LLC v. Selective Fire & Cas. Ins. Co. , No. CAM-L-002629-20, 2020 N.J. Super Unpub. LEXIS 2244 (N.J. Super. Ct. Camden Cnty. Nov. 5, 2020); TMN, LLC v. Ohio Security Ins. Co., No. MER-L-000821-20 (N.J. Super. Ct. Mercer Cnty. Apr. 16, 2020).
 See Optical Servs. USA/JCI v. Franklin Mut. Ins. Co ., No. BER-L-003681-20, 2020 N.J. Super. Unpub. LEXIS 1782 (N.J. Super. Ct. Bergen Cnty. Aug. 13, 2020); Westfield Area YMCA v. North River Ins. Co., No. UNN-L-002584-20 (N.J. Super. Ct. Union Cnty. Jan. 8, 2021).
 The Optical Services court stated:
A simple review of the moving papers indicates that the defendant has not provided this Court with any controlling legal authority to support their version of the interpretation of the defined terms in the policy. In fact, there is limited legal authority in the State of New Jersey addressing this issue. This is not surprising to the Court as the State of New Jersey was recently faced with a historic event which was unprecedented with respect to the losses sustained by businesses across the State of New Jersey due to the proliferation of the Covid-19 pandemic.
2020 N.J. Super. Unpub. LEXIS 1782, at *24.
 Id. at *27.
 Id. at *27-28.
 Westfield Area YMCA, Tr. at 36:24, 37:1-3 (Jan 8, 2021).
 TMN LLC v. Ohio Security Insurance Co., No. MER-L-000821-20 (N.J. Super. Ct. Mercer Cnty. Apr. 16, 2020).
 The TMN court stated:
This Court frankly doesn't agree with the [Optical Services] decision and it's not binding on this [court]. And since that decision was rendered, there have been about 24 more decisions concerning similar claims for COVID-19 losses. And it looks like 23 of those decisions have been in favor of the insurer on the initial pleading stage.
Tr. at 7:13-19 (Apr. 16, 2021).
 The TMN court declared:
Even if the plaintiffs could establish the direct physical loss of or damage to trigger coverage under the policy, Plaintiffs still cannot plead a valid claim because the virus exclusion bars any coverage for Plaintiffs' alleged losses. The virus exclusion excludes from coverage any loss or damage caused directly or indirectly by any virus, regardless of any cause of event that contributes concurrently or in any way -- or in any sequence to the loss.
Id. at 8:4-13.
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