Business Property Insurance Claim Disputes
Business Property Insurance Claim Disputes
Demand letters for denied property damage, business interruption, and civil authority claims
How Commercial Property Policies Handle Physical Loss, BI, and Civil Authority
Commercial property insurance protects businesses from losses due to property damage and resulting business interruption. Understanding your policy’s coverage structure is critical to fighting wrongful denials.
Coverage Module Matrix
| Coverage | What It Covers | Typical Triggers | Common Disputes |
|---|---|---|---|
| Property Damage (Building) | Direct physical loss or damage to covered buildings | Fire, wind, hail, vandalism, water (non-flood), theft | “Cosmetic only” damage disputes; pre-existing condition claims; exclusion interpretation |
| Business Personal Property (BPP) | Furniture, equipment, inventory, supplies | Same covered perils as building | Valuation disputes (ACV vs RCV); inadequate inventory documentation |
| Business Income (BI) | Lost net income + continuing expenses during suspension of operations | Necessary suspension due to direct physical loss to covered property | “Suspension” vs partial operations; period of restoration; saved expenses offset; causation |
| Extra Expense | Costs to minimize suspension or continue operations | Expenses incurred to avoid/minimize BI loss | What qualifies as “extra”; reasonableness; mitigation duty |
| Civil Authority | BI loss when government prohibits access to premises | Government order + damage to nearby property | Was there qualifying “damage”? proximity requirements; causation; duration limits (often 4 weeks) |
| Contingent Business Income | Loss from damage to supplier or customer premises | Damage at dependent property prevents you from operating | Proving causation; coverage often requires endorsement |
Direct Physical Loss or Damage Standard
Most commercial property policies cover “direct physical loss of or damage to” covered property. This phrase is the battleground for most disputes, particularly COVID-era business interruption claims.
Minority View (Some State Courts): “Loss” can include loss of use or functionality even without visible physical alteration, especially where property is rendered uninhabitable or unusable.
Key 9th Circuit Case: Mudpie, Inc. v. Travelers Casualty Ins. Co. (2021) held that COVID-19 shutdown orders without physical alteration to property did not constitute “direct physical loss or damage.”
North Carolina Exception (2024): North Carolina Supreme Court held certain policy language could cover COVID-related losses as “direct physical loss” under specific policy wording—defying the national trend.
Key Exclusions to Watch
- Virus exclusion: Introduced post-SARS; excludes loss caused by virus or bacteria (heavily litigated in COVID cases)
- Pollution exclusion: May bar smoke, chemical, or mold damage claims depending on wording
- Ordinance or Law exclusion: Limits coverage for code-upgrade costs unless you have endorsement
- Wear and Tear / Deterioration: Pre-existing or gradual damage not covered
- Faulty Workmanship: Poor construction or repairs excluded, though resulting damage may be covered
- Anti-Concurrent Causation (ACC) clause: If a covered peril and excluded peril both cause loss, exclusion wins (controversial; some states limit ACC clauses)
Suit Limitations & Appraisal
Like homeowners policies, many commercial policies include:
- Suit-limitation clause: Must file lawsuit within 12 months (or 24 months for fire policies under CA Ins. Code § 2071) from date of loss
- Appraisal clause: Either party can demand binding appraisal to resolve valuation disputes (not coverage disputes)
Top Reasons Insurers Deny or Minimize Business Property Claims
Property Damage Denials
- “Cosmetic only” damage: Insurer claims visible damage (e.g., smoke staining, minor water marks) is cosmetic and doesn’t constitute covered loss
- Pre-existing conditions: Alleging damage existed before covered event
- Exclusion invoked: Claiming damage falls under wear-and-tear, pollution, or other exclusion
- Maintenance issue: Asserting damage resulted from deferred maintenance, not a sudden covered peril
- Causation dispute: Covered peril (wind) vs excluded peril (flood) caused damage
Business Interruption Denials
| Denial Reason | Insurer’s Argument | Counter-Strategy |
|---|---|---|
| No “suspension” of operations | “You continued partial operations, so no suspension” | Policy covers “necessary suspension”—even partial is covered if some operations must stop due to damage; cite policy definition |
| No direct physical loss | “Property is physically intact; economic loss alone isn’t covered” | Show tangible damage (smoke residue, water infiltration, HVAC contamination); cite broad “loss” definition; argue property was rendered unusable/uninhabitable |
| Period of restoration too short | “You could have reopened sooner” | Provide contractor timelines, permit delays, code-upgrade requirements; show insurer’s timeline is unrealistic |
| Saved expenses offset claim | “Your expenses decreased, reducing net income loss” | Distinguish continuing vs discontinued expenses; show contractual obligations (rent, salaries) that didn’t stop; calculate net income accurately |
| “Trending” disputes | “Your revenue was already declining before loss” | Provide historical financials showing growth or stability; explain seasonal variations; refute insurer’s assumptions about business trajectory |
Civil Authority Denials
Civil Authority coverage requires:
- A government order prohibiting access to your premises
- Damage to property near your premises (not necessarily your property)
- The order was issued because of the damage
Common denial reasons:
- “No damage to nearby property”: Insurer claims government order wasn’t triggered by physical damage (COVID civil authority denials)
- “Order doesn’t prohibit access”: Reduced capacity or restrictions don’t qualify as “prohibition”
- “Damage not within X blocks”: Some policies require damage within specific distance
- “Coverage limited to 4 weeks”: Policy caps civil authority BI at short duration
Business Interruption 101: Calculating Loss, Period of Restoration, and Extra Expense
How Business Income Coverage Works
Business income coverage pays for:
“The net income (net profit or loss before income taxes) that would have been earned or incurred AND continuing normal operating expenses, including payroll, during the period of restoration.”
Formula:
Business Income Loss = (Projected Revenue – Projected Variable Costs) + Continuing Fixed Expenses – Actual Revenue During Period of Restoration
Key Concepts
Period of Restoration
The period during which you’re entitled to BI payments. It begins when the direct physical loss occurs and ends when:
- The property should be repaired or replaced with reasonable speed and similar quality, AND
- You’re able to resume operations at the same level as before the loss
The period does NOT end just because you reopen—it ends when you’re fully operational again.
Continuing vs Discontinued Expenses
You can recover continuing expenses even if no revenue is coming in. Examples:
| Continuing Expenses (Covered) | Discontinued Expenses (Not Covered) |
|---|---|
| Rent / mortgage payments | Utilities if building is vacant and shut off |
| Payroll for retained employees | Payroll for laid-off employees |
| Insurance premiums | Inventory purchases (not made during closure) |
| Loan payments, leases | Marketing costs reduced during closure |
| Property taxes | Variable costs tied to production (which stopped) |
Extra Expense
Extra Expense coverage pays for reasonable costs incurred to:
- Avoid or minimize the suspension of operations
- Continue operations during the period of restoration
Examples of extra expenses:
- Renting temporary space while your building is repaired
- Overtime wages to speed up repairs
- Expedited shipping for replacement equipment
- Temporary relocation of inventory
- Advertising to notify customers of temporary location
Proving BI Loss: Financial Documentation
To support a BI claim, provide:
- Historical financials: Profit & loss statements for prior 12-24 months showing revenue, expenses, net income
- Projections: What revenue you would have earned absent the loss (use historical trends, seasonal adjustments, growth trajectory)
- Continuing expense proof: Invoices, statements, cancelled checks showing expenses continued during closure
- Actual revenue during period: If you partially reopened, document reduced revenue
- Contractor timelines: Estimates and actual repair timelines to justify period of restoration
- Industry benchmarks: If insurer disputes your projections, show industry data supporting growth assumptions
COVID-Era and Catastrophe-Era Decisions: Where Courts Are Landing Now
COVID Business Interruption Litigation: Overview
The COVID-19 pandemic triggered thousands of lawsuits by businesses seeking BI coverage for government-mandated shutdowns and capacity restrictions. Insurers denied nearly all claims, asserting:
- No “direct physical loss or damage” (virus presence without structural damage doesn’t qualify)
- Virus exclusions bar coverage
- Civil authority coverage doesn’t apply (no physical damage to nearby property)
Majority Federal Appellate View: No Coverage
Federal appellate courts, including the 9th Circuit, have overwhelmingly held that COVID-related economic losses without tangible property damage do NOT constitute “direct physical loss or damage.”
Other federal circuits (3rd, 6th, 8th, 11th) have reached similar conclusions, creating a strong majority view against coverage.
Minority State Court View: Limited Pro-Coverage Rulings
A few state courts have allowed COVID BI claims under specific policy language or state-law interpretations:
- North Carolina Supreme Court (2024): Held certain policy language could cover COVID shutdown losses as “direct physical loss” where policy defined “loss” broadly. This decision bucked the national trend but is limited to specific policy wording.
- Pennsylvania state trial courts: Some early rulings found virus presence could constitute “physical loss”; later appellate decisions reversed many of these.
- Ohio, Vermont, Massachusetts: Mixed results depending on policy language and factual allegations (e.g., presence of virus on surfaces, contamination requiring remediation).
– Actual virus contamination requiring professional remediation
– Structural damage (e.g., HVAC contamination, physical alterations needed)
– Policy language defining “loss” more broadly than “damage”
…you may have a viable claim, especially in minority-view states.
Virus Exclusions
Many policies issued post-2006 (after SARS) include virus or bacteria exclusions. Courts have consistently enforced these exclusions to bar COVID claims, even where “direct physical loss” might otherwise be arguable.
Example exclusion language:
“We will not pay for loss or damage caused directly or indirectly by any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.”
If your policy has this exclusion, COVID coverage arguments are extremely difficult.
Non-COVID Property Claims: Lessons and Strategies
For traditional (non-COVID) BI claims, focus on:
- Concrete physical damage evidence: Photos, expert reports, testing (e.g., air quality for smoke, moisture readings for water)
- Causation chain: Covered peril → physical damage → suspension → income loss
- Policy language interpretation: Argue “loss” is broader than “damage” if applicable
- Avoid exclusions: Show damage doesn’t fall under wear-and-tear, pollution, or other exclusions
- Business records: Strong financials, clear period-of-restoration timeline, documented continuing expenses
Sample Business Property Demand Letters
Sample 1: Fire Damage + BI Denial (Wrongful “Cosmetic Only” Determination)
Sample 2: Water Damage + BI (Exclusion Dispute)
Attorney-Led Representation for Business Property Insurance Disputes
Commercial property claims often involve substantial amounts and complex coverage issues. As an attorney specializing in insurance disputes, I help businesses fight wrongful denials and recover the full benefits they’re owed.
Why Hire an Attorney for Your Business Claim?
- High stakes: Business property and BI claims can exceed hundreds of thousands or millions of dollars
- Complex policy interpretation: Commercial policies are dense and filled with technical definitions, exclusions, and endorsements
- Expert witnesses required: Property damage and BI claims often require engineers, restoration specialists, accountants, and business valuation experts
- Bad faith exposure: California law allows significant extra-contractual damages for unreasonable claim handling
- Litigation leverage: Insurers take attorney-represented claims more seriously and settle more favorably
- Appraisal vs litigation strategy: Knowing when to invoke appraisal vs when to litigate coverage is critical
My Approach to Business Insurance Cases
- Initial assessment: I review your policy, denial letter, and claim documentation to evaluate coverage and identify insurer errors
- Evidence development: I work with experts (engineers, forensic accountants, restoration specialists) to build a strong record
- Demand letter or litigation: Depending on deadlines and facts, I send a detailed legal demand or file suit immediately
- Discovery: I obtain the insurer’s claim file, depose adjusters and experts, and expose bad faith through internal documents
- Settlement or trial: Most cases settle once I’ve demonstrated the strength of your claim; if necessary, I take cases to trial
What to Expect
| Stage | Timeline | Key Activities |
|---|---|---|
| Consultation & Retainer | Week 1 | Review documents, assess claim, sign engagement agreement |
| Investigation & Demand | Weeks 2-6 | Gather evidence, retain experts, send formal demand letter |
| Negotiation | Weeks 6-12 | Negotiate with insurer; many cases settle here |
| Litigation (if needed) | Months 4-18 | File complaint, discovery, motions, mediation, trial |
Fee Structure
I offer flexible fee arrangements tailored to your situation:
- Contingency fee: I take a percentage of your recovery (typically 25-40% depending on stage of case); no recovery, no fee
- Hourly fee: For clients who prefer hourly billing; rates depend on case complexity
- Hybrid: Reduced hourly rate plus success fee
California’s Brandt rule allows recovery of attorney’s fees from the insurer in breach-of-contract cases, making representation affordable.
Schedule a Consultation
If your business property claim has been denied or underpaid, don’t let the insurer bully you into accepting less than you’re owed. I have extensive experience with commercial property, business interruption, and bad faith cases.
Serving businesses throughout California. Contingency fees available for qualifying cases.
Additional Resources
- California Department of Insurance: www.insurance.ca.gov
- United Policyholders (nonprofit): www.uphelp.org
- California Association of Business Brokers: For business valuation referrals