Vol MMXX No. 2, August 2020

Volume MMXX No. 2 August 2020 Cecilia O. Miller A Primer on Insurance Coverage for COVID-19 Losses By Procopio Partner Cecilia O. Miller, Senior Associate Alexandra “Sasha” Selfridge, and Senior Counsel Ryan C. Caplan The sweeping financial toll resulting from shuttered businesses and cancelled events due to COVID-19—the disease resulting from the virus known as the severe acute respiratory syndrome coronavirus 2—becomes clearer and more concerning with each passing day. Many businesses have closed for good. Those that survive the COVID-19 Alexandra “Sasha” Selfridge pandemic are likely to emerge with financial scars that will, in turn, add to the already devastating human toll, including lost wages and income. Fortunately, businesses may have in their arsenal a weapon to mitigate the financial havoc caused by COVID-19: insurance. While certain commentators opine that there is no insurance for a pandemic, that assertion is dangerously generalized. Depending on the particular provisions of the policy and the circumstances of the losses suffered by the business, there very well may be coverage for COVID-19 losses in their insurance portfolio. Below are some steps to help businesses uncover those hidden resources, which might make a difference in ensuring the business survives these challenging times. Business Interruption Coverage Ryan C. Caplan If a business has a commercial property insurance policy—and they likely do unless they are strictly an online presence—the commercial property insurance package may well include coverage for business interruption and the losses arising from same, including loss of profits. Most business interruption coverages are written to require some form of physical loss or damage to trigger such coverage, which can prove difficult with a contagion such as COVID-19. However, even if the policy appears to require physical loss or damage there still may be triggers for coverage hidden in the policy. Some courts hold that (continued on page 4) President’s Message | By Alan Mansfield............................................................................................................................... .............................................. p. 2 April 9 Brown Bag with Judge Richard Whitney | By Angela M. Hampton .........................................................................................................p. 8 May 21 Brown Bag with Judge Jill Burkhardt | By Angela M. Hampton ............................................................................................................p. 10 Federal Judges Collaborate on Zoom, Ask Attorneys to Do the Same | By Daniela Peinado Welsh ....................................................p. 14 Monthly Charges and Annual Passes During the COVID-19 Pandemic – Do Consumers Get a Refund? | By Chase Stern .....p. 16 California Case Summaries: Monthly™ - March 2020 | By Monty A. McIntyre ................................................................................................p. 20 INSIDE Words Matter. Perhaps Especially Ours as Lawyers. | By Rupa G. Singh ........................................................................................................... p. 22 ALAN MANSFIELD President’s Message By Alan M. Mansfield The United Kingdom formally withdrew from the European Union. A member of the British royal family stepped away (quoting Hamilton, “I wasn’t aware that was something a person could do”). A large swath of South Australia burned in uncontrolled wildfires. A passenger jet was shot down in the Middle East. Articles of impeachment were drawn up against the President of the United States. A basketball icon was killed in a helicopter crash. And that was all in January 2020! I guess to say it has been an eventful year so far would be an understatement. Again, borrowing a phrase from Hamilton, in they historically have been for our in-person our “world turned upside down” members in all presentations. If you have not taken advantage aspects of the legal profession have had to make of our programs, I encourage you to do so. major adjustments. ABTL has had to do so as In addition, either in presentations to our well. We have postponed the ABTL Annual Sem- members or in co-sponsoring events, ABTL has inar to October 19-24, 2021. Our great network- been able to arrange for local executive judicial ing events such as our dinner programs and the and administrative officers to provide up-to- annual judicial mixer have been cancelled. And date information on the status of our state and at our most recent Executive Committee meet- federal courts. This has allowed us to advise our ing we had to face the reality it is unlikely we clients and assist our court system in getting will hold any in person events this year. back to a semblance of normal operations. I As one management guru has written, to particularly want to recognize the work of our be plugged in as an organization we need to Vice President Rebecca Fortune, who along with consider three interwoven components: (1) the a team of volunteers lead by David S. Casey, knowledge, skills and abilities of the people Jr. organized ResolveLaw San Diego. This is within our organization; (2) the technology tools a volunteer no cost mediation and resolution available to our organization; and (3) the way we resource to help reduce the San Diego Superior organize our operations. ABTL, both as a chapter Court backlog. ABTL supports the fine work of and a state-wide professional organization, this group and the numerous volunteers who has quickly adapted to these challenges by have offered to lend their time and talent to this drawing on the vast reservoir of talent in our project – many of whom are ABTL members. If organization, and utilizing technology tools to you haven’t checked it out as an option, please re-focus the way ABTL is organized in terms of visit www.resolvelawsandiego.com. providing substantive educational content and It goes without saying that as an organiza- value to our members. tion we extend a huge thank you to both our Realizing that our standard program offerings Secretary, Presiding Judge Lorna Alksne, and could not go forward as they historically have, Board of Governors member Chief Judge Larry and taking advantage of the depth of individual Burns, along with Judge Randa Trapp and our resources within ABTL, we decided to increase other Board members who are navigating these our content and offer it to our members via uncharted waters. Their leadership in this time ZOOM conferences. We have been able to of- of constantly evolving changes, coming up with fer our members substantive MCLE-approved solutions while balancing numerous important content on an almost bi-weekly basis. And you rights and interests, has been extraordinary. all have positively responded — attendance at Thank you for your continuing efforts. these events has typically been double what 2 (Continued on page 3) President’s Message (continued from page 2) I am most pleased to report on the work we There is much more I could share with you all are doing with our sister chapters throughout in terms of our plans for programs throughout the State. The presidents of our local chapters the second half of the year. I encourage you are developing a collaborative process to offer to visit www.ABTL.org to learn about upcoming our members the ability to participate in some programs and events. Suffice to say, to close of the programs offered by local chapters to with my final Hamiltonian reference ABTL is ABTL members state-wide. In June, the North- “non-stop”! ern California chapter hosted an on-line dinner I hope you are adjusting and thriving in our program with presentations by several local in- hopefully relatively temporary new normal. We house counsel. For the first time, members of welcome your feedback, your ideas, and your other ABTL chapters were able to virtually par- participation in ABTL. Be well and be safe. ticipate in that program. And while this is still a work in progress with the inevitable fits and END NOTE starts, it is the presidents’ mutual goal to of- 1 fer more programs to all of our members, ex- T.L. Griffith, The Plugged-In Manager (2012) at p.4 (with permission). panding the way we organize our operations as a state-wide organization. We hope to develop a further refinement of this new way of collaborat- SINCERELY, ing at the upcoming (virtual) ABTL Joint Board Retreat. 3 A Primer on Insurance Coverage for COVID-19 Losses (continued from cover) these policy provisions do not require structural Whether—and most importantly when—the damage and can include airborne contaminants successive and increasingly aggressive orders and bacteria. In addition, some policies may be from the federal, state, and local governments written to include “loss of use” of property that meet the requirements of a policy’s civil has become uninhabitable or unusable, which authority coverage remains an open question. may well extend to the COVID-19 related shut Again, this is dependent upon particular policy downs. language and the circumstances of the impacted business. Even if “physical loss” is a predicate to coverage, the circumstances of COVID-19 and Certain industries such as hospitality, the premises may encompass physical loss. medical services, and retail may have unique For example, to what degree have surfaces at coverages or coverage extensions under which the premises been contaminated by the virus COVID-19 would be a covered peril, including, and become a medium for spreading the virus for

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