New York's Governor is not National or International Body

Chubb Must Pay for Cancellation of Tina Turner Concert Because of Order of State of New York

Tina Turner Musical LLC v. Chubb Insurance Company of Europe SE, Appeal No. 16804, Index No. 651607/21, Case No. 2022-02269, Supreme Court of New York, First Department (December 6, 2022)

In an appeal from an order of the Supreme Court, New York County (Andrew Borrok, J.), entered on or about December 30, 2021, that denied defendant's motion to dismiss the complaint, the New York Appellate Court unanimously affirmed the decision of the trial court.

New York appellate courts are noted for the brevity of their opinions, and this one is no exception.

The appellate court concluded that the trial court, the Supreme Court, New York County, correctly concluded that plaintiff's losses resulting from the cancellation of its Broadway show during the COVID-19 pandemic did not fall within the communicable disease exclusion in the insurance policy.

The exclusion precluded from coverage:

any loss directly or indirectly arising out of, contributed to by, or resulting from... any communicable disease or threat or fear of communicable disease... which leads to: [1] the imposition of quarantine or restriction in movement of people or animals by any national or international body or agency; [2] any travel advisory or warning being issued by a national or international body or agency.

The appellate court noted that the exclusion did not clearly and unmistakably preclude from coverage losses caused by communicable diseases that were of such a systemic nature as to lead to quarantine or travel advisory orders by a national or international body or agency. Rather, giving the exclusion a strict and narrow construction, and resolving any ambiguities against defendant, the appellate court found that it precluded from coverage losses resulting from quarantine or travel advisory orders issued by a national or international body or agency in response to a communicable disease.

Since plaintiff's losses stemmed from Executive Orders issued by the New York State Governor and New York City Mayor banning performances and gatherings in theaters, the exclusion did not apply.

ZALMA OPINION

Whenever there is an issue of whether an insurance policy must provide coverage to an insured it is necessary to read the full policy. The New York Appellate court did just that: it read the exclusion relied upon by Chubb to refuse coverage to Ms. Turner, and found that her losses resulted from Executive Orders issued by the Governor of New York state and the mayor of New York City. Since the exclusion only excluded orders of a: "national or international body or agency," and since neither the Governor nor the Mayor were national or international bodies or agencies, the exclusion did not apply.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com

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