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Coronavirus Covid-19 Legal Aspect

The coronavirus outbreak (COVID-19) is impacting every aspect of our lives all over the world. In addition to affecting global health, it has also greatly affected our global economy. Governments have been forced to answer questions regarding unemployment, business law, and protecting privacy. In this constantly changing new world, it is important to understand how these legal changes may affect you or your business.

Business Legal Aspects During Covid-19 Pandemic

With more businesses closing or running remotely due to the COVID-19 Pandemic, the economy is struggling and businesses are unsure of current legal rules and obligations. Learn more about contractual obligations, how to protect against business losses, and how to access financing during the pandemic.

View Your Business Insurance Policy As a Contract

In analyzing whether business insurance policies protect against business losses from COVID-19 issues, it is helpful to view business insurance policies as contracts from two perspectives:
  1. First, similar to a contract, a business insurance policy can best be understood by analyzing its specific terms and conditions.
  2. Second, similar to a contract, the specific terms and conditions of a business insurance policy generally will vary from business to business, including that each business insurance policy will have its own riders and exclusions.

Business Interruption Insurance

The most likely type of business insurance that may protect against coronavirus-related business losses is business interruption insurance. Whether as a separate policy or as a rider to a business' commercial or umbrella insurance policy, business interruption insurance protects against loss from disruption to business operations. Subject to exclusions, most business interruption insurance provides coverage if both a certain condition and a certain damage has occurred.

Conditions for Business Interruption Coverage

It is unlikely that anyone had the foresight to include the specific condition of COVID-19 disease for coverage in an insurance policy. However, it is possible that such more general language as, any infectious disease pandemic, could be a condition that triggers coverage in an insurance policy. From a different perspective, such language as, any civil authority action, could cover business losses from government restrictions that were imposed to address coronavirus problems. It may be necessary to distinguish between government orders requiring closing of a business (coverage) and government advisories merely suggesting closing of a business (no coverage)

Damages for Business Interruption Coverage

Typically, it is insufficient that the condition for coverage occurred; it is also necessary that this condition for coverage caused a certain damage to the business. Under damages, one issue will be whether the condition caused the damage. For example, COVID-19 disease may not be considered to have caused the damage (thus disallowing coverage), when an unprofitable business about to file for bankruptcy was ordered by the government to close because of coronavirus.

A second issue under damages will be whether the condition caused the certain damage required under the insurance policy. For example, COVID-19 disease may not be considered to have caused the certain damage of food contamination under an insurance policy (thus disallowing coverage), when food was not sold because a restaurant was ordered by the government to close because of coronavirus.

Role of the Insurance Business Lawyer During the Novel Coronavirus (COVID-19) Pandemic

Given the relative novelty of coronavirus issues, the subject of insurance coverage for business losses from COVID-19 disease is complex. Businesses should hire a lawyer with experience in business insurance policy coverage issues to review the terms and conditions of the applicable business insurance policy, negotiate with the insurance company, and, if necessary, represent the business in arbitration and/or litigation against the insurance company.

Help for Owners of Bars, Restaurants, and Similar Fort Lauderdale Businesses Affected by COVID-19 Restrictions

As the number of Coronavirus, or COVID-19, cases across the United States continues to increase exponentially, so do the number of government restrictions. In Fort Lauderdale, like many other parts of Florida and the country, all public and private beaches and parks are closed. Large gatherings have been prohibited. As per Broward County's emergency order, all non-essential businesses are closed.

Last week, Fort Lauderdale Mayor Dean Trantalis ordered the closure of all large gyms, fitness centers, fitness studios, dance studios, and gyms. The same directive applied to all nightclubs, bars, and similar businesses. The mayor also limited restaurant operations to takeout, outside pickup, drive through and delivery services. These limitations, implemented in an effort to slow the spread of COVID-19, are now expected to remain in effect until at least April 15, 2020.

Likewise, the Governor of Florida Ron DeSantis announced on March 30, 2020 that he is issuing Executive Order 20-89 aimed at restricting businesses and facilities deemed non-essential from operating until April 15, while also requiring mandatory self-quarantine for travelers arriving into the state from certain location Meanwhile, many affected businesses in South Florida are already paying a steep price for compliance, as the shutdowns have resulted in decreased income and layoffs.

If your business is struggling, we may be able to help. Keep reading to learn how. Immediate Fallout In a recent news report, the owner of a small Fort Lauderdale event planning company explained how the restrictions have all but decimated her business, essentially forcing her to cancel all events until further notice. In the meantime, she is making considerable sacrifices to ensure her employees are paid. Similar stories are emerging throughout Broward County and all-over South Florida.

In addition to cancellations, local and regional businesses are now coping with contractual and delivery issues as a result of the restrictions. To make matters worse, many people do not know how to protect their rights. The Importance of Force Majeure Clauses The inclusion of a force majeure clause in a contract is one way to ensure your rights. This clause discharges your businesses from the performance of its contractual obligations in certain situations.

Specifically, it does so when circumstances beyond your control make the fulfillment of contractual obligations either:

  • Inadvisable;
  • Commercially impracticable;
  • Illegal; or
  • Impossible

Examples of these kinds of circumstances include wars, earthquakes, and hurricanes, however there is currently no Florida law or precedent that includes viruses or pandemics as qualifying events to trigger the enforcement of a force majeure clause. That being stated, we anticipate that Florida courts will soon take up that very question, providing an answer to many affected business owners. Impossibility as a Legal Defense

If your contract does not contain a force majeure clause but you still need a way to get out of it, you may have other options. In Florida, individuals and businesses may use the defense of impossibility or impracticability to avoid their contractual obligations under certain circumstances. Generally, these circumstances must make it objectively impossible for one or more parties to the contract to perform.

Acts of God and governmental action are among several types of business risks which implicate the impossibility defense, according to the Middle District of Florida in the case of Harvey v. Lake Buena Vista Resort, LLC, 568 F. Supp. 2d 1354, 1367 (M.D. Fla. 2008). Death or disability, physical destruction, embargos, and other circumstances that would involve extreme difficulty, expense, or injury may also be excused under the doctrine of impossibility.

For now, it is important to remember the following during the current unprecedented circumstances we all find ourselves in:

  • Understand and evaluate the ways in which the pandemic is impacting or may impact your business and the ability to fulfill your contractual obligations. Consider the other party's obligations as well, taking into account whether they may also be adversely affected. Ask a qualified lawyer whether the circumstances allow for the invocation of a force majeure clause by either party.
  • Stay abreast of the latest developments. While the current circumstances may not protect you from contractual liability based on a force majeure clause, further restrictions may.
  • Seek legal advice. This is key because every contractual clause governing performance is different and can be interpreted differently based on governing law.
  • Carefully document the scope of any business interruptions, along with all actual and anticipated costs. Remember to be mindful of the other party's costs, as well.
  • Assess your insurance coverage to verify whether you have relevant policies.
  • Think about alternative ways, if any, to fulfill contractual obligations.
  • If possible, try to come up with mutually acceptable solutions to legal issues, such as an agreement to reschedule your event or payment.

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