Coverage Considerations in a SARS-CoV-2/COVID-19 World: National Commentaries on Select Coverage Issues

Welcome to the Primerus Webinar Series. As we navigate these new waters together without in-person meetings, we want to do all we can to ensure you still benefit from the Primerus knowledge base. If you would like to present or have a topic suggestion, please contact Katie Bundyra at kbundyra@primerus.com

Presented by: Eric Brenneman, Clay Crawford, Jerome Doctors, Kevin O'Connor, Wendy Schultz, and Dale Thornsjo

It's been hard to miss the wave of COVID-19 Pandemic coverage articles over the last couple of months. Typically authored by attorneys from individual law firms, these articles often times spot potential coverage issues depending on the type of coverage and policy language. But given that the articles are typically written by a single law firm, many of the articles are not the product of a collaborative effort involving attorneys from multiple jurisdictions who can provide unique and sometimes differing perspectives on these national issues. 

This realization brought a group of geographically-diverse Primerus Defense Institute’s Insurance Coverage & Bad Faith Committee members together to develop a series of vignettes discussing various first-party and third-party coverage issues arising because of the SARS-CoV-2 virus and the COVID-19 disease. The result of these efforts is the forthcoming publication of an article of these vignettes which will be discussed in this Webinar.

This expanded Webinar presentation will discuss the topics and issues being presented in the forthcoming article, including:

• The characteristics of the SARS-CoV-2 virus and the COVID-19 disease as gleaned from science and medical articles and publications, including commentary on the rapid succession of the "state-of-the-art" reflected in the literature;
• Perspectives from various parts of the country on lessons learned to date from the initial onslaught of first-party business interruption litigation testing whether "stay-at-home" orders present a viable claim for direct loss of or damage to covered property, and how "Virus" and “Contamination” Exclusions impact the first-party coverage analysis;
• Multi-jurisdictional observations on state and federal legislative initiatives in light of the pandemic coverage issues and how various public policies may impact long-term legislative efforts; and
• Discussions of various third-party coverage issues implicated by the pandemic from attorneys in different states, including how past liability cases involving viruses and other diseases shape the analysis for SARS-CoV-2 virus liability claims, implications for extent of coverage available depending on how multiple occurrences are analyzed, and providing practical insights on whether anticipated liability claims may extend to claims against individuals as opposed to businesses or commercial entities.

Live Interactive Q&A – Bring/Submit Your Questions

The panelists will be reserving time to answer specific questions from attendees and encourage those in attendance to come with questions prepared. If you would like specific questions addressed, you are invited to submit questions in advance to Katie Bundyra at kbundyra@primerus.com.

About Eric Brenneman

Eric Brenneman is an associate in Demler Armstrong & Rowland’s Sacramento office where he handles a wide variety of complex litigation, including catastrophic personal injury, insurance, transportation, contract, and products and premises liability cases. He also specializes in advising and litigating coverage issues for public entity risk-pooling groups, known as Joint Powers Authorities. He has represented a broad range of clients in state and federal courts across California and as pro hac vice counsel in the Southern District of New York.

Mr. Brenneman is involved in all aspects of litigation, including discovery, trial preparation, settlement, and client management. He has taken numerous depositions, has drafted, opposed, and successfully argued a variety of motions, and negotiated favorable settlements. In recognition of his outstanding track record, Mr. Brenneman has been selected to the Super Lawyers List of Northern California Rising Stars from 2016 through 2018.

Mr. Brenneman graduated with distinction from the McGeorge School of Law where he was admitted to the Traynor Honor Society. Named for three years to the Dean’s Honor List, he also received the Witkin Award for Academic Excellence in a course titled Computer Assisted Litigation. He was also a staff writer and editor for the McGeorge Law Review and published two articles pertaining to recently enacted California legislation. He received his Bachelor’s degrees in both Political Science and Psychology from UC Davis.

About Clay Crawford

Clay Crawford is an AV rated attorney (www.martindale.com) with substantial jury trial experience and appellate experience in state and federal courts throughout Missouri and Kansas. Since joining the firm, Clay has developed his practice in insurance litigation, the defense of personal injury claims, construction defect litigation, commercial disputes and general trial practice, with a focus on insurance coverage and extracontractual matters.

Clay is a Fellow in the American College of Coverage and Extracontractual Counsel. He also has been named one of Best of the Bar by the Kansas City Business Journal, The Best Lawyers in Kansas City® by Ingram’s Magazine, and the Best Lawyers in America® by U.S. News and World Report. He has earned the Super Lawyers® designation in Missouri and Kansas each year since 2009, including a Top 100 ranking in Missouri and Kansas and Top 50 ranking in Kansas City since 2018. In 2014, Clay was selected as Insurance “Lawyer of the Year” in Kansas City by Best Lawyers, and in 2016 he was named to the St. Louis Post Dispatch list of “Top Lawyers in Missouri.” In addition to his trial practice, Clay has served as an adjunct professor of insurance law at the UMKC School of Law. Clay is also a past President of the Missouri Organization of Defense Lawyers.

About Jerome Doctors

Jerome Doctors is an attorney at Lynberg & Watkins, APC. For the last 25 years, Mr. Doctors has advised insurance companies on policies involving primary, umbrella, and excess coverage, with expertise in claims involving environmental, toxic tort, construction, healthcare, general liability, mass torts, product liability, worker’s compensation, personal and advertising injury and professional liability claims. Mr. Doctors has defended first- party and third-party declaratory relief and Bad Faith Litigation actions, and has been involved in numerous inter-carrier contribution actions. He has worked with underwriters to craft manuscript policy language for exclusions and endorsements. Mr. Doctors has also been retained as an expert.

In addition to his insurance coverage practice, Mr. Doctors has been retained to defend insureds in significant claims, including toxic tort and products liability. He also has experience in general commercial litigation. He recently arbitrated a construction contract and construction defect dispute, defensing the construction manager’s claim and obtaining a $3.4 million judgment for his clients.

When not working, Mr. Doctors enjoys all sports and, in particular, watching his son play college football. He also enjoys movies and plays. His favorite activity is cage diving with Great White sharks in Australia.

About Kevin O'Connor

Kevin J. O’Connor is a shareholder and founding member of Hermes, Netburn, O’Connor & Spearing, P.C. Kevin is a trial lawyer with broad and deep experience in the trial, arbitration and appeal of insurance and reinsurance coverage, construction, surety, insurance defense, environmental and other commercial cases.

Kevin represents and provides advice to major national and international property and casualty insurers, reinsurers, insurance claim administrators, risk managers, insurance brokers and other stakeholders in the insurance industry in complex insurance coverage matters involving environmental, toxic tort, asbestos, sexual abuse, professional liability, products liability, general liability, fidelity, directors and officers, bad faith and other claims. His wide-ranging experience extends to the surety and construction industries, in which he has represented surety companies and contractors in a wide variety of commercial surety and construction related litigation.

Since early in his career, Kevin has been involved in cases at the cutting edge of developing insurance coverage issues, appearing as counsel for litigants or other interested parties in cases such as Home Ins. Co. v. Camp Dresser & McKee (1991, duty to defend), Trustees of Tufts University v. Commercial Union Ins. Co. (1993, trigger of coverage), SCA Services v. Transportation Ins. Co. (1995, known loss), Hakim v. Mass. Insurers Insolvency Fund (1997, owned property exclusion), Feinberg v. Commercial Union Ins. Co. (2002, pollution exclusion), Emhart Industries, Inc. v. Home Ins. Co., (2007, excess insurer’s duty to defend), Emhart Industries, Inc. v. Century Indem. Co. (2009, termination of duty to defend), Boston Gas Co. v. Century Indem. Co. (2009, allocation of long term losses).

Kevin is admitted to practice in Massachusetts and regularly appears as counsel in state and federal courts throughout the Northeast.

About Wendy Schultz

Wendy Schultz is an attorney at Lynberg & Watkins, APC. For the last 26+ years, Ms. Schultz has consulted with and represented insurance companies in claims and litigation involving primary, umbrella and excess policies in the areas of environmental liability, toxic tort liability (asbestos, mold, silica, benzene, lead isocyanate, DBCP, diacetyl, PPA, EMFs, IUDs, breast implants, medical devices, blood factor concentrate), employer liability, Bad Faith Litigation, premises liability, real estate, business and general liability, and most recently, construction defect liability (residential and commercial). Proficiencies include analysis of insurance policies, claim facts, case law, procedural posture and circumstances to identify potential issues, evaluate liability and develop a strategy to achieve the client’s goal, protect the client’s interests and resolve the claim or action, including negotiation of settlements, claims handling agreements, etc. With respect to litigation, Ms. Schultz has been involved in all stages of coverage disputes from claims through discovery, trial and appeal and routinely represents insurance clients at mediations and settlement conferences.

When not working, Ms. Schultz enjoys running, cycling, Pilates, French classes, cooking/dining, and reading detective fiction.

About Dale Thornsjo

Dale Thornsjo of O'Meara, Leer, Wagner, & Kohl, P.A. focuses his litigation practice on the continually expanding and shifting insurance coverage and liability issues raised construction, products liability, toxic tort and environmental matters. He represents primary and excess/umbrella insurers in a wide variety of property damage, bodily injury, personal and advertising injury trigger, allocation, duty to defend, “bad faith,” and “coordination of coverage” actions. He also continues his long-established practice of defending clients in mass tort, multiple-plaintiff or individual plaintiff cases in such diverse areas as asbestos, mold and “wet” buildings, building products, food adulterants and other substances.

In addition to his practice in Minnesota, Mr. Thornsjo has represented insurers, manufacturers and other entities in jurisdictions such as Iowa, Michigan, New York, North Dakota, South Dakota and Wisconsin. He is a 1984 cum laude graduate of the William Mitchell College of Law (now Mitchell Hamline School of Law). He is a member of the Defense Research Institute, its Insurance Law Committee, and that Committee’s Commercial General Liability Subcommittee. As a member of DRI’s local arm, the Minnesota Defense Lawyers Association, he was a founding co-chairman of MDLA’s Insurance Law Committee, a past chair of the MDLA’s Toxic Tort and Environmental Law Committee, and is a member of its Construction Law Committee. He is also a member of the Federal Bar Association, and the Association of the Bar of the United States Court of Appeals for the Eighth Circuit.

The Firm is a member of the International Society of Primerus Law Firms where Dale serves as the Chair of the Primerus Defense Institute’s Executive Committee. In addition, Dale co-chairs Primerus’ groundbreaking Resources Committee which is focused on identifying, integrating and implementing technology and legal process management principles into the Society’s 170 law firms and 3,000 lawyers to enhance Primerus’ small and medium-sized firm members’ ability to effectively deliver their legal services in constantly morphing litigation and business environments. Dale has taken these roles on following his work on the Primerus Defense Institute’s Insurance Coverage and Bad Faith Committee where he served on its Executive Committee as a member and its Chair for several years.

Dale is a frequent lecturer and author on complex insurance coverage and product liability matters, and has testified before various committees of the Minnesota House of Representatives and the Minnesota Senate on insurance coverage and bad faith issues. Mr. Thornsjo chairs the Firm’s Insurance Coverage Practice Group and the Toxic Tort Practice Group. He has been recognized by his peers for inclusion in Best Lawyers®’ The Best Lawyers in America© publication, and has been selected as an insurance coverage “Super Lawyer” for many years.