Feasibility questions about government-sponsored insurance for business interruption losses from pandemics

Abstract

Widespread economic losses to many businesses due to COVID-19 business closures have led many plaintiffs’ attorneys to assert in lawsuits that business interruption (BI) insurance policies cover these losses, while insurers generally contend that their BI policies exclude coverage for a variety of reasons. We explain the basic coverage contentions below. Additionally, several states are considering measures that would retroactively establish coverage for pandemic-caused losses under BI policies. While the resolution of coverage disputes and the legality of retroactive coverage expansions in the courts is uncertain, clearly there is strong interest in making BI pandemic insurance available going forward. While a few insurers have offered BI pandemic coverage, no firms have purchased it (Lerner, 2020). Further, many insurers are reluctant to expand their BI policies to cover pandemic losses. Hence, there is strong interest in creating a federal government insurance program that would provide BI pandemic coverage. Currently, there are at least two formal proposals to establish such a program. One proposal is the Pandemic Risk Insurance Act of 2020 (PRIA), which was introduced in the U.S. Congress as H.R. 7011; PRIA would establish a Pandemic Risk Reinsurance Program (PRRP) modeled after the Terrorism Risk Reinsurance Program (TRRP) established by the Terrorism Risk Insurance Act (TRIA). Three industry trade associations also have proposed a Business Continuity Protection Program (BCPP) as an alternative to PRIA that is similar in some regard to the National Flood Insurance Program (NFIP). PRIA intends to create a public and private insurance program that would provide BI insurance for pandemics, with participating private insurers retaining 5% of losses above a deductible. We critique the program contemplated by PRIA and discuss the BCPP. Additionally, we consider a program concept of our own design that would also borrow from the NFIP (but would differ somewhat from the BCPP), as well as a program similar to the federal crop insurance program. We conclude that frameworks based on the NFIP or the federal crop insurance program would have several advantages over PRIA, which has a number of problems, but even these alternative frameworks would face many challenges. This policy brief provides a preliminary review of the PRIA and BCPP drafts, as well as other alternative frameworks, and draws from a longer working paper by the authors (Klein and Weston, 2020)