As Georgia grapples to cope with COVID-19, many businesses are being forced to shut their doors. Undoubtedly, business owners and employees understand this is a sacrifice that must be made for the greater good. Social Distancing was a relatively unknown term a month ago and is now an international buzzword. As medical professionals and first responders heroically rush to the frontlines of this battle, many of us are forced to realize that the best way we can support the cause is to stay home. Staying at home while our livelihood is threatened certainly feels counterintuitive.
I became an attorney to help people. I envision myself fighting and being a voice for those who might otherwise be ignored. Right now, I have to ask: “How can I and other attorneys help in this crisis?”. It’s a question I have pondered for several days. I think the place to start is by asking who will be impacted the most by this.
When I was a boy, I would ask my mother what “class” we were. I’d heard the term used at school no doubt. She would always say we are “working class”. To her that meant both my parents had jobs, they both worked, and made a living. Not rich, not poor, just living. I am eternally grateful have been afforded the opportunity to be working class.
The working class will be disproportionately impacted by the social distancing made necessary by the virus. I consider both employees and business owners “working class” because their livelihood is dependent upon the ability to work. If people cannot move about freely and businesses cannot operate, businesses cannot afford employees and both the business owners and employees suffer.
The best way to help the working class in the long-term is to make sure businesses have an opportunity to restart once social distancing becomes a thing of the past. If we do that, we make sure the livelihood of the working class (i.e., ability to work) is there and available once this is over.
Aside from the tools that will be provided by federal, state, and local government, business owners may have rights against their insurers which will preserve the working class’s ability to work. A business owner’s insurance policy may include what’s referred to as “business income” or “business interruption” insurance. Benefits under these policies of insurance may be triggered when the government prohibits access to the business owner’s premises resulting in a financial loss to the business owner. These policies of insurance may provide coverage for losses sustained by business owners as a result of government-mandated social distancing.
Admittedly, there is not a wealth of Georgia case law on this topic. Most of the available legal precedent is from Louisiana and Florida and arose from mandatory hurricane evacuations. One Georgia case of importance is Assurance Company of America v. BBB Service Company, Inc., 265 Ga. App. 35, 593 S.E.2d 7 (2003). While the outcome of any claim is strictly dependent upon the language of the insurance policy and the facts presented, Assurance provides a roadmap for business owners seeking to recover their losses due to social distancing.
Generally, business owners will need to be able to prove: (1) that the business loss was caused by governmental action prohibiting access to their business; (2) that the governmental action was to prevent physical loss or damage to property; and, (3) that the object of the physical loss or damage to property was not the business owner’s. In other words, the government has to shut down a business for the purpose of protecting property that is not the business owners.
Undoubtably there will be extensive litigation concerning the reasons for our shut down and what exactly the shut down was meant to protect. Insurers will deny these claims simply because they have an argument that the losses are not covered. By doing that, the insurers are denying the working class the right to work. We cannot let that happen. If your business income or business loss claim is denied, call us because we want to help. By pursuing your claim, we help get you and your employees back to work. We find a way for attorneys to do their part in this unprecedented time.