COVID. Billings, Montana Hospital ICU Hallway. (Billings Clinic)
In Monarch Casino & Resort, Inc. v. Affiliated FM Ins. Co., ___ F.4th ___, No. 22-1096, 2023 WL 7143487 (10th Circ. Oct. 31, 2023), the Tenth Circuit applied Colorado law to hold that a Contamination Exclusion applied to alleged COVID-19 damage:
The Contamination Exclusion expressly prohibits coverage for “[c]ontamination,” which the policy defines as “any condition of property due to the actual or suspected presence of any ... virus.” [App'x] at 192, 229 (emphasis added). This exclusion precludes coverage for “the inability to use or occupy property or any cost of making property safe or suitable for use or occupancy” because of the presence of a virus. Id. at 192. And that is not all. The exclusion also denies coverage for “any cost due to contamination including the inability to use or occupy property.” Id.
With that in mind, the Contamination Exclusion’s plain language precludes all-risk and business-interruption coverage on exactly what Monarch asks for: physical loss or damage associated with the presence of the virus, COVID-19.
Monarch, 2023 WL 7143487, at *4-*5.
After examining the rest of the policy at bar in light of the record in that case, the Court further held that all coverage was excluded, for that matter, where "otherwise" there was no physical loss. Monarch, 2023 WL 7143487, at *6.
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