Below is the abstract for “Infected Judgment: Problematic Rush to Conventional Wisdom and Insurance Coverage Denial in a Pandemic,” available for download on SSRN.

The COVID-19 pandemic created not only a public health crisis but also an insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives “presponded” to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring—as a matter of law—that policy terms such as “direct physical loss or damage” do not even arguably encompass the business shutdowns resulting from COVID-19.

Our closer examination of the term and of other key coverage questions suggests that policyholders have a much stronger case than suggested by the initial—and often superficial and conclusory—conventional wisdom flowing from the first wave of judicial decisions. Only a few courts have analyzed the COVID coverage debate with the type of reflective care, judicial humility, and respect for the trial process one would hope to see. The “early returns” in these coverage wars have been analytically disappointing, creating risk of an unfortunate path dependency or cascade of cases excessively narrowing the meaning of key terms such as “loss” and “damage,” and diminishing the quality of future coverage decisions.

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Jeffrey W. Stempel

University of Nevada Las Vegas William S. Boyd School of Law

Professor Jeffrey Stempel is a 1981 graduate of Yale Law School, where he was an editor of the Yale Law Journal and co-founder of the Yale Law and Policy Review. He spent two years as a law clerk to a federal district court judge in Philadelphia and three years in private practice with a firm in Minneapolis before entering the teaching profession. Professor Stempel served on the faculty at Brooklyn Law School and the Florida State University College of Law. Professor Stempel has numerous publications to his credit, including books, treatise chapters and supplements, and law review articles. He is a member of the American Law Institute, the State Bar of Nevada, and the Minnesota Bar. Professor Stempel teaches Civil Procedure/Alternative Dispute Resolution, Evidence, Professional Responsibility, and Insurance Law.

Erik Knutsen

Queen's University School of Law

Erik S. Knutsen earned a Masters of Law (LL.M.) from Harvard Law School, a J.D. from Osgoode Hall Law School and a B.A.(Hons) from Lakehead University. His areas of academic interest include insurance law, tort, accident law, medical malpractice, civil procedure and the civil litigation system.

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