January 13, 2021 by Greg Meckbach
COVID-19 can cause a commercial general liability claim if a commercial client is sued by the family member of a worker who has caught the disease at work and then infected family members, insurance law experts suggest.
“Take-home COVID” is one example of how CGL lines can be affected by the ongoing pandemic, said Dave Laughran, chief economist at Praedicat Inc., which makes modelling and analytics products for the insurance industry.
This arises from employees catching COVID at work but not from those employees suing their own employers. Instead, this is when a family member, in the same household as an employee, claims that the employee caught COVID-19 in the workplace and then passed on that disease to other members of their household.
Generally, it’s the workers themselves and not their family members who are governed by workers’ compensation rules. This is why family members of workers could have tort claims against employers, said Laura Foggan, a partner in Crowell & Moring’s Washington, D.C. office, and chair of the firm’s insurance/reinsurance group.
Foggan and Laughran were asked during a Jan. 11 episode of A.M. Best TV about how COVID-19 can trigger multiple lines of insurance.
The A.M. Best TV panellists were talking about the United States specifically, but Canada’s provinces have workers’ compensation systems that protect employers from personal injury lawsuits from employees. In Ontario, workers in provincially-regulated workplaces do not generally have a right to sue their employers if they become sick or injured at work. That is because the century-old Workplace Safety Insurance Board provides a way for employees to get no-fault compensation without having to go out and hire a personal injury lawyer.
Similar systems are in place in the other Canadian provinces and territories.
During the A.M. Best TV episode, Loughran alluded to the fact that many companies with asbestos exposure were sued by family members who alleged the workers unknowingly brought asbestos home on their clothing and equipment.
“Those are scenarios that are capable of generating billions of dollars in potential economic loss and potentially hundreds of millions, if not billions, of dollars in loss in general liability if they actually came to pass,” Loughran said of insurers’ potential liability for take-home COVID.
What is not known is the impact of so-called “long haulers” – people who catch COVID and still have lingering health problems after their body has beaten the virus.
“We don’t know how many people will experience these long-hauler symptoms and how severe that will be,” said Foggan. “Clearly that could be a consideration in whether claims are brought. If it turns out a large number of people do have continuing symptoms, and problems from COVID then the likelihood has got to be higher that there will be future litigation.”