In its brief, UP analyzes the absence of a virus and pandemic exclusion in an “all risk” policy, such as the one at issue in this case. The insurance industry has long recognized that losses like those caused by the recent COVID-19 pandemic are within the broad scope of all-risk insurance policies. The industry developed virus and pandemic exclusions to allow insurers to exclude those losses if they did not want to cover them. Under Indiana Supreme Court precedent, the existence of these exclusions shows (1) that the insurance industry understood virus and pandemic losses were covered in the absence of any of these exclusions, and (2) that it was reasonable for policyholders like IRT to expect coverage if their policies did not contain any of these exclusions. UP argues that the trial court has ignored Indiana Supreme Curt precedent and has decided to follow the unfortunate trend of courts in other jurisdictions. UP humbly ask the court to adhere to its historical precedent favoring coverage and disfavoring insurance companies’ attempts to deny coverage to Indiana policyholders under anything less than clear and unmistakable policy language. UP expounds upon the following points to make its case:
A. All-Risk insurance policies like the policy IRT purchased from Cincinnati cover all fortuitous losses not clearly and unmistakably excluded from coverage.
B. The insurance industry knew and intended for all-risk policies to cover pandemic risk.
C. The trial court was incorrect in calling the lack of a virus exclusion “moot;” to the contrary, it further supports the intent to cover COVID-19 related losses.
D. The insurers’ dire warnings of insolvency are overblown and misplaced in a contract-interpretation case.
E. Finding a “majority rule” based on the first round of litigation is unwise and premature.