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Covid-19: Assessing the Legal Risk of Infectious Diseases

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) – better known as the coronavirus – has turned our world upside down in a matter of weeks. The infectious disease caused by this newly emerged virus, Covid-19, has taken thousands of lives and sickened hundreds of thousands. The resulting public health crisis threatens to become an economic catastrophe, as governments weigh the need for populations to shelter in place against the financial cost of shutting down most businesses. The risk of lawsuits due to exposure to this infectious disease may add to the economic difficulties businesses are now facing. This article assesses that risk based on principles developed in past infectious disease litigation and the known characteristics of the coronavirus.

WSHB Nevada Client Alert – New Legislation Providing Immunity to Certain Businesses from Covid Personal Injury and Wrongful Death Claims

On August 5, 2020 during a special session of the Nevada Legislature SB4 was passed and is expected to be signed by the Governor in the coming days. This bill grants broad liability protections to businesses including for profit, governmental entities and private non-profit organizations creating immunity from civil liability for personal injury or death resulting from exposure to Covid-19, if the business, governmental entity or private nonprofit organization substantially complied with controlling health standards. Notably hospitals and other health care facilities as well as school districts are exempted from receiving the additional protections afforded by this bill.

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First Cybersecurity Enforcement Action Filed by the New York State Department of Financial Services

On July 21, 2020, the New York State Department of Financial Services filed charges against First American Title Insurance Company, regarding violations of NYSDFS’s Cybersecurity Regulations for Financial Services Companies. These are the first charges to be filed by NYSDFS’ Consumer Protection and Financial Enforcement Section alleging violations of the Cybersecurity Regulation enacted in 2017, and portend active enforcement to come. As the Cybersecurity Regulation applies to all institutions and professionals regulated by the NYSDFS, this inaugural enforcement action should be a wake-up call to insurance companies, financial institutions and other professionals doing business in New York.

Covid-19 Liability Risk: Can It Be Waived?

Covid-19 related restrictions have lifted across the United States (and in some instances then imposed again). With businesses reopening physical locations and the prospect of schools holding in-person classes this fall, owners, board members, executives and managers all must address potential coronavirus related liabilities. Any owner or operator of a facility where in-person contact occurs is at risk for civil suits and claims for potentially exposing employees, customers or other members of the public to the coronavirus. In response to these risks, businesses and other institutions have asked employees, customers, and patrons to sign liability waivers. Examples include President Trump’s reelection campaign asking supporters to execute liability waivers before attending rallies. This practice has gained significant media attention and has led many to wonder whether these waivers are enforceable.

Colorado Imposes New Limits on Insurers Seeking to Assert a Failure-to-Cooperate Defense

Insurers investigating claims in Colorado should be aware of new limits on their ability to assert a failure-to-cooperate defense in litigation. Effective September 15, 2020, C.R.S. § 10-3-1118 imposes a number of hurdles on insurers seeking to argue that coverage is not available because an insured did not cooperate in the investigation of a claim. Before an insurer can assert a failure-to-cooperate defense in first-party actions, the statute requires compliance with several conditions. First, the insurer must request information from the insured or their representative in writing, via certified mail or electronic means, if the insured or their representative have consented to receive electronic documents from the insurer.

California Bill Seeks to Shift Burden of Proof to Carriers for COVID-19 Business Interruption Claims

On July 2, 2020, California Assembly Bill 1552 was amended and referred to the California Senate Insurance Committee. The bill is intended to regulate commercial business interruption coverage of insured businesses in light of the ongoing COVID-19 pandemic. The bill is an “urgency statute necessary for the immediate preservation of the public peace, health, or safety . . . and shall go into immediate effect.” The immediacy of the bill is intended “to protect the solvency of businesses that were forced to close their doors or limit business” due to the pandemic. The bill, if passed, would apply retroactively to all commercial insurance policies providing coverage for business interruption that were in full force and effect on and after March 4, 2020 (the date of the declared state of emergency).

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