Couch's “Physical Alteration” Fallacy: Its Origins And
COUCH’S “PHYSICAL ALTERATION” FALLACY: ITS ORIGINS AND CONSEQUENCES Richard P. Lewis,∗ Lorelie S. Masters,∗∗ Scott D. Greenspan*** & Chris Kozak∗∗∗∗ I. INTRODUCTION Look at virtually any Covid-19 case favoring an insurer, and you will find a citation to Section 148:46 of Couch on Insurance.1 It is virtually ubiquitous: courts siding with insurers cite Couch as restating a “widely held rule” on the meaning of “physical loss or damage”—words typically in the trigger for property-insurance coverage, including business- income coverage. It has been cited, ad nauseam, as evidence of a general consensus that all property-insurance claims require some “distinct, demonstrable, physical alteration of the property.”2 Indeed, some pro-insurer decisions substitute a citation to this section for an actual analysis of the specific language before the court. Couch is generally recognized as a significant insurance treatise, and courts have cited it for almost a century.3 That ∗ Partner, ReedSmith LLP, New York. ∗∗ Partner, Hunton Andrews Kurth LLP, Washington D.C. *** Senior Counsel, Pillsbury Winthrop Shaw Pittman LLP, New York. ∗∗∗∗ Associate, Plews Shadley Racher & Braun, LLP, Indianapolis. 1 10A STEVEN PLITT, ET AL., COUCH ON INSURANCE 3D § 148:46. As shown below, some courts quote Couch itself, while others cite cases citing Couch and merely intone the “distinct, demonstrable, physical alteration” language without citing Couch itself. Couch First and Couch Second were published in hardback books (with pocket parts), in 1929 and 1959 respectively. As explained below (infra n.5), Couch 3d, a looseleaf, was first published in 1995.. 2 Id. (emphasis added); Oral Surgeons, P.C.
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