My Last Comment on Direct Physical Loss Requirement Again
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Post 5096
In Tulalip Tribes of Washington v. Lexington Insurance Co., Wn.App. 2d, 566 P.3d 149 (2025), the Washington Court of Appeals held that COVID-19 does not trigger coverage under an “All Risk” policy that predicates coverage on “direct physical loss or damage” to property. Because the trial court’s ruling in this matter is contrary to Tulalip, the Court of Appeals reversed and remanded to the trial court ordering dismissal.
In The Board Of Regents Of The University Of Washington v. Employers Insurance Company Of Wausau, A Liberty Mutual Company, No. 86493-9-I, Court of Appeals of Washington, Division 1 (June 9, 2025) the question of direct physical loss claims as a result of the Covid Pandemic got resolved again.
THE POLICIES
The University of Washington (UW) obtained from Employers Insurance Company of Wausau (Wausau) “All Risk” insurance coverage for several of its properties. UW sought coverage after government orders relating to COVID-19 required temporary closures of those properties. The relevant policy provisions predicate coverage on “direct physical loss or damage.”
THE SUIT
Wausau denied coverage based on those policy provisions, UW filed a complaint asserting claims for breach of contract, declaratory judgment, bad faith, and violations of the Washington Consumer Protection Act and Washington Insurance Fair Conduct Act. Wausau filed a motion to dismiss the claims based on the policy provisions, and the trial court denied that motion.
ANALYSIS
Construction of an insurance policy is always a question of law. The Court of Appeals examined the policy to determine whether under the plain meaning of the contract there is coverage. If the policy’s language is clear and unambiguous, the court must enforce the policy as written. Also, relevant here, the insured bears the burden of showing that coverage exists.
Thus, the issue is whether UW has alleged the required “direct physical loss or damage” to trigger coverage under the relevant policies for the COVID-19-related losses at issue.
The Court of Appeals rejected the arguments raised by UW for a similar loss of functionality argument in Tulalip because, the insureds in Tulalip maintained possession of the property, the property was still functional and able to be used, and the insureds were not prevented from entering the property.
The Court of Appeals concluded that the insureds’ deprivation was more akin to an abstract or intangible loss. An intangible loss is insufficient to establish direct physical loss or damage. The deprivation must still be caused by a physical impact to the property. The same reasoning and holding apply equally here because, as in Tulalip, UW’s allegations show it suffered an abstract or intangible loss as opposed to a physical loss.
The policies define a “covered loss” as “[a] loss to covered property caused by direct physical loss or damage insured by this Policy.” Thus, as in Tulalip, there must be direct physical loss or damage to property for UW to obtain coverage under the communicable disease coverage endorsements. Because UW has failed to allege such loss or damage the communicable disease coverage endorsements do not apply.
CONCLUSION
In sum, the Court of Appeals reject UW’s arguments regarding its entitlement to coverage under the policies at issue for the same reasons set forth in Tulalip. UW’s breach of contract and declaratory judgment claims fail on this basis. Because Tulalip is directly on point and fatal to UW’s coverage arguments, the Court of Appeals reversed and remanded the case to the trial court for for dismissal.
ZALMA OPINION
About two years ago I proposed to never again write about Covid claims and the need to prove direct physical loss. For reasons I don’t understand parties continue to bring to court cases claiming direct physical loss that is really abstract and intangible losses. Just alleging direct physical loss where none exist wastes the time of the parties, the lawyers, the courts and the courts of appeal. Washington affirmed its precedent that should tell the people of the US to stop trying to make insurers provide a coverage it did not agree to provide.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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When Harm is Inherent in the Nature of the Act it is Intentional
Post 5237
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No Coverage for Intentional Acts
Hitting a Person in the Face is an Intentional Act
In Unitrin Auto and Home Insurance Company v. Brian C. Sullivan, et al., George A. Ciminello, No. 2022-01607, Index No. 21632/14, Supreme Court of New York, Second Department (November 19, 2025) George A. Ciminello was injured when struck in the face by a cup filled with liquid, thrown from a moving vehicle operated by Brian C. Sullivan, with Robert Harford as the passenger who threw the cup. The vehicle approached Ciminello at about 30 mph, from 2 to 10 feet away, and Harford extended his arm to make contact. The cup splintered upon impact.
Sullivan and Harford later conceded liability on the intentional tort claim before a damages trial.
Insurance Policy:
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Post 5238
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The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
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Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
