Business Interruption Insurance 2021 Legislation

Heather Morton 6/2/2021

Insurance Policy and Pen

Business interruption (BI) insurance, also known as business income insurance, helps small businesses protect against monetary losses due to periods of suspended operations or closures when a covered event, such as a fire, occurs and causes physical property damage. BI insurance is generally purchased as part of a business property insurance policy, for an additional premium. While commercial property coverages pays for actual physical damages or losses, BI covers lost net income due to the closure of the business while repairs are underway. These policies may cover rent or lease payments, employee wages, taxes, and loan payments; however, BI insurance does not typically cover damages or losses from flooding, earthquakes, and mudslides, although small businesses can purchase additional coverages for these specific perils. Exclusions from coverage may include losses unrelated to property damage, such as lost revenues due to viral outbreaks or pandemics.

With the COVID-19 pandemic mandated business closures, proposals that would force insurers to retroactively pay for BI losses incurred by the coronavirus shutdowns were raised and introduced in state legislatures. In the 2021 legislative session, 11 states have pending legislation addressing BI insurance policies.

New York enacted legislation requiring certain insurers to provide summary concerning business interruption insurance.

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Business Interruption 2021 Legislation

State:

Bill Number:

Bill Summary:

Alabama

None

 

Alaska

None

 

Arizona

None

 

Arkansas

None

 

California

AB 743

This bill, with respect to a policy of insurance that provides coverage for business interruption, creates specified rebuttable presumptions affecting the burden of proof in a case in which the insured alleges that the business interruption was due to the COVID-19 pandemic and occurred during the period of the state of emergency declared by the governor due to the COVID-19 pandemic. Specifically, the bill creates certain rebuttable presumptions that COVID-19 was present on specified property and caused physical loss or damage to that property which was the direct cause of the business interruption. Among other things, the bill provides that with respect to coverage for business interruption due to an order of civil authority, a rebuttable presumption applies that COVID-19 was present on property located within the geographical location covered by the order of civil authority and caused physical loss or damage to that property which was the direct cause of the insured’s business. The bill defines “civil authority” for these purposes to include any federal, state, or local government, or the governing body or duly constituted agencies of any federally recognized Indian tribe, and their instrumentalities, divisions, political subdivisions, enterprise boards, and business entities. The bill prohibits COVID-19 from being construed as a pollutant or contaminant for purposes of any exclusion within an insurance policy unless viruses are expressly included in that exclusion policy language. The bill provides that it applies retroactively to all insurance policies that provide coverage for business interruption that were in full force and effect on and after March 4, 2020.

Colorado

None

 

Connecticut

None

 

Delaware

None

 

District of Columbia

None

 

Florida

None

 

Georgia

None

 

Guam

None

 

Hawaii

None

 

Idaho

None

 

Illinois

HB 3148

Amends the Illinois Insurance Code to provide that an insurance policy amended, delivered, issued, or renewed in the state after the effective date of the amendatory Act that offers business interruption insurance shall be construed to include, among the covered perils of that policy, coverage for loss of use and occupancy of a business and business interruption, including lost income, resulting from a forced closure of businesses during a period of a declared emergency by law or order of a federal or state government or governmental officer or agency. Defines "business interruption insurance".

Illinois

HB 3166

Amends the Illinois Insurance Code to provide that an insurance policy amended, delivered, issued, or renewed in the state after the effective date of the amendatory Act that offers business interruption insurance shall be construed to include, among the covered perils of that policy, coverage for loss of use and occupancy of a business and business interruption resulting from a public health emergency or disaster regardless of whether the public health emergency or disaster results in physical damages to business property.

Indiana

None

 

Iowa

None

 

Kansas

None

 

Kentucky

None

 

Louisiana

None

 

Maine

LD 694

This bill prohibits insurers that provide a policy insuring against loss or damage to property from excluding coverage for any loss of occupancy or business interruption directly or indirectly resulting from the COVID-19 pandemic. The bill also prohibits insurers from including a provision in a policy excluding coverage for any loss of occupancy or business interruption directly or indirectly resulting from a pandemic declared by the World Health Organization or the U.S. government. The bill also makes the requirements of this bill apply retroactively to March 15, 2020, the date a civil state of emergency was first declared in the State due to the COVID-19 pandemic.

Maryland

None

 

Massachusetts

HB 1079

Relates to business interruption insurance.

Massachusetts

SB 660

Relates to business interruption insurance.

Massachusetts

SB 1639

Promotes business continuity and recovery after a disaster.

Michigan

None

 

Minnesota

None

 

Mississippi

None

 

Missouri

None

 

Montana

None

 

Nebraska

None

 

Nevada

None

 

New Hampshire

None

 

New Jersey

AB 3844

This bill provides a mechanism by which certain businesses that suffer losses due to interruption as a result of the coronavirus disease 2019 pandemic may recover those losses from their insurer if they had a policy of business interruption insurance in force on March 9, 2020, the date on which the governor declared a Public Health Emergency and State of Emergency in Executive Order 103. The bill would apply to businesses covered by such a policy with less than 100 eligible employees in the State of New Jersey. "Eligible employee" is defined as a full-time employee who works a normal work week of 25 or more hours. The bill provides that every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, in force on the date of the Executive Order, shall be construed to include among the covered perils under that policy coverage for business interruption due to global virus transmission or pandemic, as provided in the governor’s Executive Order. The coverage provided would be subject to the limits under the policy and would indemnify the insured for losses incurred during the State of Emergency. The bill then provides that an insurer which indemnifies an insured who has filed a claim pursuant to its provisions may apply to the commissioner of Banking and Insurance for relief and reimbursement from funds collected and made available for this purpose as provided in the bill, pursuant to an additional special purpose assessment under the general scheme already established by law to recover the general expenses of the Department of Banking and Insurance as the regulator of the insurance industry in this state. The commissioner shall establish procedures for the submission and qualification of claims by insurers which are eligible for reimbursement, incorporating such standards as are necessary to protect against the submission of fraudulent claims by insureds, and appropriate safeguards for insurers to employ in the review and payment of such claims. Finally, the bill authorizes the commissioner to impose upon, distribute among, and collect from insurance companies, other than life and health insurance companies, the additional amounts as may be necessary to recover the amounts paid pursuant to the bill. The additional special purpose apportionment authorized by the bill shall be distributed according to essentially the same procedures and calculations as are provided currently for the existing special purpose apportionment.

New Jersey

AB 4551
SB 3280

This bill authorizes insurers which issue policies insuring against loss or damage to property which include the loss of use and occupancy and business interruption in this state, to offer to their insureds and prospective insureds a rider to such an insurance policy which includes, as a covered peril under that policy, coverage for global virus transmission or pandemic, or both. The bill also requires the commissioner of Banking and Insurance to review and approve, as appropriate, any insurance policy rider submitted by an insurer and designed to provide the coverage offered pursuant to the bill on an expedited basis.

New Jersey

AB 4675
SB 3281

This bill establishes the “Commission on Pandemic Insurance Coverage.” The commission will consist of five members, which include: the commissioner of Banking and Insurance, or a designee; two members of the Senate appointed by the president of the Senate; and two members of the General Assembly appointed by the speaker of the General Assembly. It will be the duty of the commission to evaluate the feasibility of the inclusion of global virus transmission or pandemic coverage in business interruption insurance policies, which includes, but is not limited to determining: (i) the cost to insurers of providing global virus transmission or pandemic coverage; (ii) whether limiting global virus transmission or pandemic coverage to small and/or mid-size businesses would alleviate any additional costs incurred by insurers; and (iii) whether it would be feasible for the state to offer a reimbursement program for insurers who make payments on business interruption claims for losses due to a global virus transmission or pandemic. The bill requires the commission to issue a report of its findings and conclusions to the governor and the Legislature no later than one year following the first meeting of the commission. The commission and the bill expire upon the submission of the commission’s report.

New Jersey

AB 4805
Signed by governor 5/12/21, Chapter 98
SB 3169
Substituted 3/25/21

Requires certain insurers to provide summary concerning business interruption insurance.

New Jersey

AB 5067
SB 3178

This bill establishes the New Jersey Pandemic Risk Reinsurance Fund and the New Jersey Pandemic Risk Reinsurance Program (program) for eligible insurers offering business interruption insurance coverage pursuant to the bill when claims payable resulting from the covered public health emergency exceed $75 million statewide. Under the bill, the commissioner of Banking and Insurance is to establish the New Jersey Pandemic Risk Reinsurance Program pursuant to the following guidelines: a. No compensation is to be paid from the program unless the aggregate industry losses in New Jersey resulting from a covered public health emergency exceed $75 million. b. Subject to the availability of funds, the aggregate annual maximum amount paid out of the program is not to exceed $500 million. c. Losses in excess of the insurer deductible but not exceeding the aggregate annual maximum amount pursuant to the provisions of the bill are to be covered jointly by the program and participating eligible insurers subject to each insurer’s retention. d. The program is to pay incurred losses on a pro rata basis, the methodology for which is to be determined by the commissioner within 240 days of the effective date of this act. e. Reinsurance purchased by a participating eligible insurer through the private market is not to affect the calculation of the insurer’s deductible or retention. The bill provides that the New Jersey Pandemic Risk Reinsurance Fund is to consist of an annual appropriation out of the General Fund of the state of not less than $50 million. In addition, the bill provides for not less than $50 million to be allocated out of the amounts of federal government assistance provided to this state pursuant to "Coronavirus Aid, Relief, and Economic Security Act," Pub. Law 116-136. Lastly, the bill provides that, out of the amounts of additional federal government assistance that may become available to this state with regard to the coronavirus disease 2019 pandemic, not less than $50 million is to be allocated to the New Jersey Pandemic Risk Reinsurance Fund. The bill provides that, as a condition of participating in the New Jersey Pandemic Risk Reinsurance Program established pursuant to this act, an eligible insurer is required to offer to an insured or prospective insured with no more than 100 eligible employees in the state of New Jersey, a rider to the insurance policy which includes, as a covered peril under that policy, coverage for global virus transmission or pandemic, or both, pursuant to a covered public health emergency. The commissioner of Banking and Insurance is to review and approve, as appropriate and on an expedited basis, any insurance policy rider submitted by an insurer and designed to provide the coverage offered pursuant to this section.

New Mexico

None

 

New York

AB 41

Directs the department of financial services to study and report upon the adequacy and affordability of business interruption insurance coverage for pandemics, viruses and other public health emergencies.

New York

AB 498
SB 847

Requires business interruption insurance to cover disease outbreaks as denying such coverage based on a disease outbreak is against public policy.

New York

AB 1937
SB 4711

Requires certain perils be covered under business interruption insurance during the coronavirus disease 2019 (COVID-19) pandemic.

New York

AB 3222
SB 5760
Passed Senate 6/1/21

Authorizes excess business disability insurance as a non-basic type of insurance.

New York

AB 5396
SB 4333

Establishes the temporary hospitality and business relief fund; creates a credit for certain hospitality businesses affected by the COVID-19 pandemic; provides insurance coverage for loss or damage incurred by business interruption resulting from an official order to close.

New York

SB 2028

Creates the coronavirus business interruption and municipal recovery program to provide grants through the empire state development corporation to businesses and municipalities which sustain economic losses as a result of the COVID-19 emergency; authorizes the issuance of bonds to fund the grants.

North Carolina

None

 

North Dakota

None

 

N. Mariana Islands

Not available

 

Ohio

None

 

Oklahoma

None

 

Oregon

HB 2730

Establishes rules of construction for interpreting business property insurance policies in this state. Prohibits certain conduct by insurers with respect to business interruption claims. Provides that insured may bring action to seek actual damages for insurer’s violation of prohibitions.

Pennsylvania

HB 1223

Provides for insurance coverage for business interruption.

Pennsylvania

SB 42

Provides for coverage under business interruption insurance during the COVID-19 disaster emergency.

Puerto Rico

None

 

Rhode Island

HB 5052

This bill requires an insurer to provide business interruption coverage due to the COVID-19 global pandemic and all mutated forms of the COVID-19 virus. This bill also mandate that any business interruption sustained due to the COVID-19 global pandemic constitutes direct physical loss or damage to said business.

Rhode Island

HB 5912

This bill allows businesses that had an insurance policy in place for business interruption as of March 9, 2020 to recover from their insurance companies for a COVID-19 business impact. A business would be eligible for recovery if they have less than 100 employees in the state that work 25 or more hours a week to qualify for recovery under this act.

Rhode Island

SB 347

This bill allows businesses that had an insurance policy in place for business interruption as of March 9, 2020 to recover from their insurance companies for a COVID-19 business impact. A business would be eligible for recovery if they have less than 100 employees in the state that work 25 or more hours a week to qualify for recovery under this act.

A. Samoa

Not available

 

South Carolina

None

 

South Dakota

None

 

Tennessee

None

 

Texas

SB 249

Relates to business interruption insurance coverage for losses arising from a pandemic.

Utah

None

 

Vermont

None

 

Virginia

None

 

Virgin Islands

None

 

Washington

SB 5351

Concerns business interruption insurance claims. Extends the minimum limit to a right of action against an insurer from one year to two years. Establishes that every property insurance policy containing a grant of coverage for direct physical loss of or damage to property must be interpreted as deprivation and loss of the ability to use the property.

West Virginia

None

 

Wisconsin

None

 

Wyoming

None

 

 

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Heather Morton is a program principal in Fiscal Affairs. She covers financial services, alcohol production and sales, broadband and telecommunications, and medical malpractice issues for NCSL.

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