Pandemic outbreaks are uninsured because they are uninsurable,’ contends insurance industry.

A once-bustling bar and grill tucked below a Michigan Avenue overpass famously inspired a “Saturday Night Live” skit starring John Belushi and Bill Murray. But the money the Billy Goat Tavern is losing during the coronavirus outbreak is no joke.

The tavern and millions of other shuttered businesses nationwide have turned to their insurers to help recoup their losses following state-mandate closures, which combined may exceed $300 billion a month. But insurers have widely rejected the claims, so the Billy Goat joined a growing line of businesses, including barbershops and casinos, suing insurers to force them to pay.

“These businesses are in the most trying times in their history and are going to their insurance company to get what they paid for,” said Chris Esbrook, a lawyer for the landmark tavern, which opened in 1934 and, as legend goes, cursed the Chicago Cubs.

Insurers say policies for natural or man-made disasters don’t cover virus outbreaks that bring economies to a standstill, and high-stakes battles in courtrooms coast to coast are sure to follow. What’s at stake could be the survival of thousands of businesses if insurers don’t pay and the insolvency of big-name insurance companies if they do.

“Pandemic outbreaks are uninsured because they are uninsurable,” David A. Sampson, president of the American Property Casualty Insurance Association, said this month.

No revenue is flowing into the Billy Goat, which previously drew hundreds of tourists a day, including some who remember the best-known line from a series of late 1970s SNL skits in which restaurant staff rebuffs patrons ordering anything but the house specialties: “Cheezborger, cheezborger, cheezborger! No Coke … Pepsi!”

As many as 30 million small businesses straining to survive with little to no revenue could submit virus-related claims worth up to $430 billion, the insurance association estimated. Those unprecedented numbers would be multiple times higher than claims following the Sept. 11 attacks.

The expectation is that insurers will continue to reject the vast majority of claims, triggering waves of lawsuits from businesses in nearly every town and city. Such a filing frenzy could add to logjams in courts when they reopen fully after the pandemic eases.

Among dozens of lawsuits filed to date is one by the Choctaw Nation casinos in Oklahoma and another by the Los Angeles law firm of celebrity attorney Mark Geragos.

“You pay insurance for decades for precisely the unthinkable, and when it happens these insurance companies do the unconscionable” by rejecting claims, Geragos told The Hollywood Reporter.

Forcing insurers to pay hundreds of billions of dollars a month could quickly deplete the $800 billion set aside to cover future home, auto and other losses, according to the insurance association.

The attorney for the Billy Goat, which expanded from its flagship site to include establishments around Chicago, says he has little sympathy for insurers.

“They are in the business of selling people insurance for exactly this kind of situation,” Esbrook said. “They can’t now cry they’re poor when the very situation they are insuring arises.”

President Donald Trump recently expressed sympathy for businesses asking insurers to pay up for business interruption coverage.

“When they finally need it, the insurance company says, ‘We’re not going to give it,’” he said at a coronavirus task force news conference. “We can’t let that happen.”

Similar conflicts are playing out in Europe and Asia, though they aren’t likely to see the torrent of lawsuits sure to come in the litigious United States.

The question on which many cases will hinge is whether the presence of the virus in or near a business can be categorized as direct physical damage, something that would otherwise be clearly covered. It’s a question courts haven’t definitively answered.

Proving a microscopic virus was ever even on a business’s premises, never mind damaged it, could pose a challenge to plaintiff attorneys.

The Pennsylvania Supreme Court last week may have inadvertently helped business owners make their case when it upheld a state order closing nonessential businesses during the pandemic, likening the coronavirus to hurricanes in its ruling.

“COVID-19 pandemic is, by all definitions, a natural disaster and a catastrophe of massive proportions,” the majority opinion said.

Insurance companies say most policies that cover unanticipated interruptions to a business’s operations specifically exclude pandemics. Such exclusions became more common after a SARS virus outbreak in the early 2000s devastated businesses in parts of Asia.

A message seeking comment from the insurer the Billy Goat is suing, Society Insurance, wasn’t returned.

A note to policyholders on the website of Travelers Indemnity, the insurer Geragos is suing, reads like a blanket denial of virus shutdown claims because they’re “not a result of direct physical loss or damage.” It also cites virus exclusions in its policies.

But such exclusions don’t mean businesses don’t have valid claims, the business lawyers contend. They point to separate policy provisions requiring that insurers pay losses when civil authorities intervene during emergencies and order businesses to close.

The Billy Goat Tavern’s legal team says their case may be that much stronger because their insurer did not write in a virus exclusion and then still denied coverage.

Pressure on insurers isn’t only coming in the form of lawsuits.

State lawmakers, including in Illinois, New York and New Jersey, have proposed laws that would dictate insurers accept business claims for coronavirus damage, in some cases even if policies exclude pandemics.

Industry advocates say such mandates could drain insurance funds needed to pay claims during upcoming hurricane season and when other natural disaster inevitably strike. The laws, they argue, also would undermine the contract law upon which free markets rely.

“If elected officials require payment for perils that were excluded, never underwritten for, and for which no premium was ever collected, catastrophic results will occur,” said Charles Chamness, president of the National Association of Mutual Insurance Companies.

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Reprinted with permission from The Associated Press.

Businesses fear opening up their storefronts and getting sued from customers who contract COVID-19.

For the second meeting of the state’s industries hit the hardest by a Florida economy reeling from COVID-19 lockdowns, talks shifted more to the outdoors, but businesses still want swift and clear action.

Dana Young, CEO of VISIT FLORIDA again led the panel, which on Wednesday focused on outdoor recreation, professional sports, theme parks and retail. The prior meeting, the day before, mainly focused on lodging and accommodations.

One shared concern raised by business interests is the fear customers could contract COVID-19 at their business and slap them with a lawsuit.

St. Petersburg Republican Sen. Jeff Brandes is writing up legislation for a possible Special Session or the 2021 Session to protect businesses against those lawsuits.

“Asymptomatic people working in their faculty could spread the disease and lawsuits could come from that,” he told Florida Politics.

AJ de Moya, with The de Moya Group, said businesses have never faced lawsuits for the flu or other diseases.

“I’ve got some friends of mine that run DOW 30 companies in Florida, and they are concerned that opening up their offices will put them at traumatic risk, and I think it’s really important and we protect this,” he said.

Jacksonville Mayor Lenny Curry spoke about his city’s decision to reopen beaches last weekend and to enforce the rules with megaphones and on carts, a minimalist method he said was working. Opening up a larger space could help give Floridians freedom to exercise and enjoy nature.

“I believe when you open your beaches or your parks, which we’ve also done, a dictator-style we’re going to come arrest you I don’t believe is the way forward,” he said.

Curry added that photographs taken over the weekend inaccurately portrayed a rush and crowding of people at Jacksonville Beach.

Beaches are open from 6 a.m. to 11 a.m. and 5 p.m. to 8 p.m. for recreation like swimming or taking walks. Sun bathing, laying out blankets and towels, chairs and grills are not allowed on the city’s beaches and groups must follow social distancing practices.

And Department of Environmental Protection Secretary Noah Valenstein said the department was weighing the usual crowding at state parks before easing restrictions there.

John Sprouls, CEO of Universal Orlando Resort and executive vice president of Universal Parks & Resorts, said the parks planned to utilize space, health screenings and sanitation efforts to keep guests and employees safe.

“We have a greater ability to practice and enforce social distancing while still allowing guests to experience our parks,” Sprouls said, adding that resorts essentially have the same public services as cities, like medical services.

Universal Resorts plans to expand an existing virtual queuing app used at Volcano Bay and utilizing parks’ full acreage to promote social distancing. The queuing app piqued the interest of one airline industry representative on the call, who said airports could use such a service for security lines and boarding airplanes.

Originally, the PGA Tour planned to keep golfing going and open to the public with social distancing measures. But as federal and state officials began handing down advisories against massed gatherings, the final nail in the coffin for the PGA Tour was learning that Disney and Universal resorts, with swathes of open land similar to a golf course, were closing.

Len Brown, the PGA Tour’s executive vice president and chief legal officer, noted that its tournaments often benefit various charities that have also missed out the tour’s revenue. Golfing would begin June 8 under the tour’s current timeline.

The National Basketball Association and National Hockey League hope to resume the regular season over the summer, said Matthew Caldwell, president and CEO of the Florida Panthers. After a period of team training, the NHL hopes to resume the season in July.

Like during Tuesday’s meeting, Walter Carpenter with the National Federation of Independent Business (NFIB) emphasized the need or small business employees to return to work. On top of reopening businesses, he emphasized the need for customers, products, services and loans from the federal Paycheck Protection Program (PPP).

“I think, as we move forward, it’s important not to overly regulate, not to be overly restricted,” he said.

With PPP loans only reaching 27% of Florida’s small businesses that have applied for funding, increasing funding and revenue is a necessity to keep businesses alive. According to an NFIB study, 15% of small businesses could not last more than a month without more funding and 35% could last one to two months.

Unlike other businesses and groups represented in the group of hardest-hit industries, Walmart is an essential business. On Tuesday, DeSantis pushed back against the essential versus nonessential services framing public health officials use, instead elevating the importance of risk levels.

“The more and more I go through it, I think think that that’s an illusory distinction,” he said. “Quite frankly, I don’t think it’s terribly helpful even when you’re talking about a pandemic.”

Walmart is asking employees and customers to wear face masks, using Plexiglas barriers and using floor decals to reinforce proper social distancing measures. It has also boosted the number of employees to help restocking and sanitization.

“The creation of industry standards that can be communicated across the state to inform our employees and our customers will be very helpful,” said Monesia Brown, Walmart’s director of public affairs and government relations.

And with employees who have been shut out from work or are afraid to go back, businesses raised mental health and framing the reopening as a good thing as important for employees’ mental health. Dr. Lillian Rivera, a former health officer at the Miami-Dade County Department of Health, said county health departments can help connect businesses to resources and services to get employees the help they need.

(The Center Square) – Nonessential Florida businesses want assurances from the state Legislature that if they reopen in accordance with state and federal guidelines, they will not be sued if patrons and workers contract COVID-19.

“I’ve got friends that run Dow 30 companies in Florida and they are concerned that opening up their offices will put them at traumatic risk,” said AJ de Moya, vice president and general manager with The de Moya Group, a Miami-based road builder. “I think it’s really important and we protect this.”

De Moya’s comments came during Wednesday’s teleconference meeting of the Re-Open Florida Task Force’s 35-member Working Group on Tourism, Construction, Real Estate, Recreation, Retail and Transportation.

The potential that some businesses may not reopen out of a fear of lawsuits is something lawmakers already had planned to address in a special session, Sen. Jeff Brandes, R-St. Petersburg, told Florida Politics.

“Asymptomatic people working in their facility could spread the disease and lawsuits could come from that,” Brandes said, noting he will sponsor a bill to hold businesses that comply with regulations harmless.

After canvassing ideas on reopening restaurants and hotels Tuesday, the second-day session Wednesday focused on theme parks and sports.

The group, one of several subpanels representing specific industries, will forward recommendations to the task force’s 22-member executive committee, which is commissioned to deliver a reopening plan to Gov. Ron DeSantis by week’s end.

Universal Orlando Resort CEO John Sprouls told the panel Universal Orlando Resort is studying how to reopen its gates, closed since March, but is hesitant to do so until it can screen workers and guests before entering.

“We’re not sure yet how we’re going to do that, but we’re looking for help from health officials to help us figure out what might be an appropriate protocol to try to minimize the possibility of any sick guests entering the parks,” he said. “We’re evaluating face coverings for our team members. We’re potentially evaluating, allowing or even encouraging guests to wear face coverings as well. At least initially.”

Universal and Disney World are among theme parks that draw 85 million people to Orlando and the Tampa-area annually, according to a 2018 report by the Themed Entertainment Association and AECOM. Many patronize the parks’ affiliated hotels, fine dining and fast-food restaurants, nightclubs and on-site retailers.

Among “different scenarios” being pondered by Universal Orlando Resort are limiting crowds, “virtual” or expanded FastPass-style lines, staggered ride seating and online food ordering, Sprouls said.

“We would be capping attendance to make sure we could create a maximum amount of social distancing,” he said. “And then, as we gained confidence in those practices and procedures that we’re employing, and as we learned from what we’re doing, we would gradually see that attendance rise.”

Those practices and procedures await state and federal guideline clarity, but Sprouls said enhanced cleaning, checking and logging workers’ daily temperatures, and onsite medical professionals to observe – and be observed by visitors – are likely components.

“If (visitors) don’t feel safe,” he said, “they won’t attend.”

Florida Panthers President and CEO Matthew Caldwell endorsed Universal’s “virtual” lines and online food ordering concepts, but said they may not be viable in arenas and stadiums.

“We’re looking at everything. We’re looking at doing cashless arenas next year,” he said. “There’s only a few sports platforms that do that right now, but we’re really digging in hard to just limit touchpoints as much as possible.”

Caldwell said the NHL and NBA still hope to finish their suspended seasons, perhaps playing at neutral sites with few or no fans in the stands.

Last week Governor Andrew Cuomo of New York issued an executive order which granted immunity from lawsuits to medical healthcare providers for injury or death. The March 23, 2020 order provided, among many things: “to the extent necessary to provide that all physicians, physician assistants, specialists assistant, nurse practitioners, licensed registered professional nurses and licensedpractical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result or an act or omission by such medical professional in the course of providing medical services in support of the state’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional”.

Certainly, these are unprecedented times that call for unprecedented measures. Florida already has strictregulations that provide for such immunity and protections to healthcare providers and no new laws, executive orders or amendments are required to protect healthcare providers rendering services for COVID-19 related care.

First, Florida has a Good Samarian Act which provides immunity from civil liability (F.S. 768.13) This law states that, “ Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances”.

Under that same law, “any health care provider, including a hospital providing emergency services shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another”. Florida’s Good Samaritan Act is designed to protect Florida’s healthcare providers from any civil liability (meaning the risk of lawsuits) for emergency care. No such additional rules or protections are needed and, in this writer’s opinion, should not be created since there are even further protections under the Florida Medical Malpractice statute. The legislature’s intent in creating this law was crystal clear and is plainly stated in the statute; “it is to encourage healthcare practitioners to provide necessary emergency care to all persons without fear oflitigation”. The Act further expands to help a provider that undertakes medical care for FEMA or any local emergency response team.

Florida’s MedicalMalpracticestatuteprovides an additional layer of protection to healthcare providers rendering care in the era of the Coronavirus crisis. Medical Malpractice in Florida is governed by Chapter 766 of the Florida Statutes. The law that is already on the books provides specificprotection to healthcare providers based on the very definition of what a person bringing a medical malpractice lawsuit must prove.

“The claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

The words, “in light of all relevant surrounding circumstances” clearly allowsCOVID-19 related care to be considered an extraordinarilyunusual and emergency crisis which would not be consideredordinary medical care.

In plain and simple words, no lawyer is going to sue a healthcare provider that was trying to save someone’s life during a COVID-19 outbreak. No jury is going to side with a claimant suing a healthcare provider for trying to save the life of a person suffering the effects of the Coronavirus. It is not realistic to even contemplate such a case.

As Floridians we need to be vigilant in protecting our rights. We cannot allow a crisis or emergency to be used as apretext to create redundant, unnecessary and confusing new regulations that really don’t change what is already established state law. Many conservative legislators are trying to get the Governor to put blanket statementsof immunity in our existing healthcare laws. They are not needed. Doctors and healthcare providers are alreadyprotected. During these unparalleled and frightening times, the last thing we should do is over-react and give up our rights. Healthcare providers, first responders and all those rendering aid as good Samaritans have existinglegal protections and immunity from civil lawsuits stemming from the care they render to patients suffering the effects of COVID-19. Education, awareness and common sense are essential tools during these unparallel days.