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Appeals court asks Oregon high court for advice on COVID coverage

Oregon Supreme Court

The 9th U.S. Circuit Court of Appeals is asking the Oregon Supreme Court whether COVID-19’s virus on an insured premises constitutes “direct physical loss or damage” to property under commercial general liability policy.

In The Oregon Clinic PC v. Fireman’s Fund Insurance Co., a case filed by a Portland clinic with 57 locations, the U.S. District Court in Portland granted the insurer’s motion to dismiss the case, ruling the clinic did not
“plausibly allege” that either COVID-19 or governmental orders caused direct physical loss or damage to its property, according to Monday’s order by the San Francisco-based 9th Circuit.

No Oregon “appellate court, state statute, or treatise has yet interpreted the phrase ‘direct physical loss or damage’ in the context of a commercial property insurance policy dispute involving COVID-19 allegations,” the 9th Circuit said, in certifying its question to the Oregon Supreme Court and asking it for its opinion on the issue.

Attorneys in the case had no comment or did not respond to requests for comment.

A dozen state supreme courts have ruled on this issue to date, with only Vermont ruling in policyholders’ favor to date.