Restaurants Demanding Insurance Coverage

A restaurant filed a lawsuit on Monday asking a state judge, will its insurance coverage cover the damages in response to the coronavirus shutdown.

A restaurant in the heart of the New Orleans tourism district filed a lawsuit on Monday asking a state judge to declare that its business-interruption policy will its insurance coverage cover the damages if it is ordered to close by civil authorities in response to the coronavirus.

Although it was not yet clear on Monday whether an emergency order by Gov. John Edwards would force the closure of the Oceana Grill, attorney John W. Houghtaling II said it would be irresponsible not to get in front of the issue and protect his client’s rights. He said insurance agents around the country possibly being coaxed by insurers have been irresponsibly telling business owners that their business-interruption policies won’t cover shutdowns caused by coronavirus.

“I can’t imagine how defense counsel are going to walk into court and say that coronavirus does not cause damage to property, or contaminate property,” said Houghtaling, who is majority owner of Gautheir Murphy & Houghtaling in Metairie, Louisiana. “I’ve talked to restaurant owners from here to New York City and they all being told the exact same thing by their agents.”

A Dallas attorney who represents insurance carriers said the lawsuit is premature.

“The normal process is for the policyholder to file a claim, let the insurance company evaluate the coverages under the policy, and then determined whether coverage exists,” said Steven J. Badger, a partner with Zelle LLP.

The Oceana Grill serves up Cajon fare in a sprawling space that seats 500 at the corner of Conti and Bourbon Streets in the French Quarter. Normally the restaurant is packed even on weekdays, Houghtaling said, but the coronavirus has thinned the hordes of tourists who usually prowl Boubon Street.

New Orleans Mayor LaToya Cantrell on Monday ordered all restaurants in the city to limit operations to delivery only. That follows an order by the governor on Friday that barred any congregations of more than 250 people.

Houghtaling argues in a petition filed with the Orleans Parish Civil District Court that any damages caused by a shutdown are a “real physical loss” that is covered by Oceana’s business interruption policy with Lloyds of London syndicates. The policy does have an exclusion for viruses or pandemics, the suit says.

In a telephone interview, Houghtaling said his client could have self-insured for a business interruption, but chose to set aside a portion of its earnings to buy insurance coverage. He said he became concerned that Lloyd’s would deny coverage after reading a column posted online last week by Zelle attorney Shannon O’Malley that asserted coronavirus shutdowns do not cause direct physical loss or damage to property and would not be covered. Zelle often represents Lloyds in coverage disputes.Houghtaling argues that coronavirus lives on surfaces for as long as 28 days, particularly in humid areas at temperatures below 84 degrees. “It is clear that contamination of the insured premises by the coronavirus would be a direct physical loss needed remediation to clean the sources of the establishment,” the petition says.