October 1, 2022


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N.J. car dealer’s COVID losses not covered by insurance due to ‘virus exclusion,’ judge rules

An Ocean County car dealer who sued an insurance company that refused to cover the business’s monetary losses during the coronavirus pandemic has lost its case in federal court.

Downs Ford of Toms River sued Zurich American Insurance Company, alleging the carrier was obligated to cover business losses that the dealer incurred after New Jersey shut down non-essential businesses last year.

But Zurich claimed Downs Ford’s insurance policy contained a “virus exclusion.” On Thursday, a federal judge sided with Zurich.

“The language of the virus exclusion is clear,” U.S. District Judge Brian R. Maritnotti wrote in his decision granting Zurich’s motion to dismiss the case.

Downs Ford, which sells new and pre-owned cars on Route 37 East, argued in court filings the policy provided for a “civil authority” coverage, which would pay in the event adjacent commercial buildings, offices and retail establishments had also been damaged.

But Maritnotti, however, found that the virus exclusion overrode the civil authority claim.

“We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease,” the contract states.

The lawsuit, which was first filed May 27, 2020 in Superior Court of Ocean County before it was transferred to federal court, stated that Downs Ford suffered a “business income interruption” after Gov. Phil Murphy signed Executive Order 107.

The order prohibited members of the public and potential buyers from entering most businesses.

As a result, the car dealer lost income “due to the loss of customers, patrons, vendors, suppliers, supplies and other essential physical materials necessary to operate,” the suit states.

Gary Ahladianakis, an attorney for Downs Ford, said the ruling “ignores the reasonable expectations of the insured” business owner.

“Zurich’s commercial business policy issued to my client clearly provides coverage for business income losses suffered as a result of official actions taken by civil authorities,” Ahladianakis said in an email to NJ Advance Media.

“Our firm will continue to assess all legal actions, remedies and options available in our efforts to limit the insurance companies’ systematic denial of valid insurance claims,” Ahladianakis said.

The Downs Ford lawsuit is similar to others in New Jersey recently, including one filed on March 19 by RWJBarnabas in Superior Court of Essex County after Zurich allegedly refused to pay up to $2.5 billion in claims.

The hospital says in court papers that nine people died and more than 1,000 have been become ill with coronavirus at RWJBarnabas hospitals in New Jersey.

Attorneys for the hospital system allege Zurich removed the virus clause from the policy before the pandemic began.

Law360 reported Friday that insurance companies are facing a deluge of litigation over denying coverage of COVID-19 claims in the last year.

As of Thursday, 1,539 such cases have been filed since the beginning of the pandemic, according to data from the University of Connecticut’s Insurance Law Center.

Zurich faces more than 100 lawsuits from policyholders that are related to payouts and the pandemic, Law360 reported.

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Anthony G. Attrino may be reached at [email protected]. Follow him on Twitter @TonyAttrino. Find NJ.com on Facebook.