The casino sought payouts for losses incurred during that time under policies from the three insurers. They include whether a claim that the coronavirus physically damaged insured property is enough to allege “direct physical loss of or damage to” it, and whether insurers can legally restrict coverage for pandemic-related losses by mentioning viruses in general pollution or “contamination” exclusions. Last year, the Supreme Court agreed to resolve some questions regarding the case. Ocean maintains that in addition to the governor’s order closing the casinos, it also shut down due to “the concern that the virus was having on the physical surfaces and the air” inside the casino, Orlofsky said. He said 14 state Supreme Courts around the nation have held that the mere interruption of business activity during the pandemic does not constitute physical losses. But David Roth, a lawyer for American Guarantee, said the policies require there to be physical damage to the property, which he said did not occur at the casino.
