美國營業中斷保險面對新冠病毒大流行的困境

U.S. Business Interruption Insurance Facing the Dilemma of the New Coronavirus Pandemic

新冠病毒（COVID-19）的全球大流行，造成美國多人確診感染或死亡，使得各州紛紛發布限制措施，讓美國史無前例的停止商業活動，造成重大財務損失，許多企業依據營業中斷保險契約請求理賠，保險人卻以COVID-19汙染並非「實體損害」，或其他理由而拒絕給付。被保險人則主張不論從保險契約解釋，或從COVID-19致生損害亦屬污染，或從公共秩序立場，保險人均應負補償責任。關於前述爭議，在司法方面，美國各州法院對類似案件的判決立場並不相同，被保險人的訴訟能否勝訴尚未可知。在立法方面，美國國會與8個州的議會已經立法要求保險人應彌補被保險人因COVID-19致生之損害。行政方面，美國川普總統也支持前述立法部門之法案。但是保險業堅決主張，傳染病大流行係不可承保之危險。為何承保營業中斷的保險契約，面對COVID-19產生的營業中斷卻爭議頻傳？本文對於美國營業中斷保險是否應對COVID-19致生之損害予以理賠的問題，闡述了美國法院支持和反對的論點，以供我國借鑑。

COVID-19 Pandemic and infections or deaths of many people in the U.S. have caused government to introduce measures such as stay home order or movement restrictions, and bans on business operations that leads to unprecedented suspension of business activities, The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous, has affected everyone across the United States. Many companies request compensation from insurers based on business interruption insurance contracts, because interruption insurance protects a business' income stream when its operations are shut down by a covered peril. However, the insurers refuse to pay, which spawned over 450 lawsuits and will be thousands in the future. Insurers claiming that business interruption insurance policies require that the loss result from a covered cause of loss. Policies contain language such as: ''Covered Causes of Loss means Direct Physical Loss Or Damage to Covered Property except those causes of loss listed in the Exclusions.'' But COVID-19 pollution is not ''physical damage''. Moreover policies contain ''virus exclusion'', language such as: ''We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.'' the actions of Civil Authorities do not cause ''direct physical loss or damage to property''. Regarding the aforementioned disputes, in terms of judiciary, the courts of different states in the United States have different judgments on similar cases. Excepts Coverage is dependent on the case law of different jurisdictions, the courts also should to consider many issues such as: ''pollution of COVID-19 constitute physical damage?'' and ''Does business interruptions due to the actions of civil authorities cause direct physical damage to property?'' ''Is the virus exclusion clause effective?'' and ''The definition of damage itself'', and so on. These issues make court judgments a difficult task. In terms of legislation, the U.S. Congress and 8 state legislatures have already enacted legislation requiring insurers to make up for the damage caused by COVID-19 to the insured. Although these bills violate the U.S. Constitution, they may be enforced by the U.S. Supreme Court. It is justified that it can promote recovery from disasters. On the administrative side, President Donald Trump said that generally, insurers should cover insureds' business interruption claims, Trump also supports the legislation of the aforementioned legislative branch. However, the insurers believe that the COVID-19 pandemic is an uninsurable risk, and the insurers will go bankrupt due to such payments. Therefore, the insurers have issued a statement that the settlement of damages against COVID-19 will seriously threaten the stability of the global insurers, and asked the government not to undermine the basic stability of the insurance industry. In the face of COVID-19 Pandemic, there is no easy answers, and no relevant insurance judgment in Taiwan. Therefore, this article, discusses whether business interruption insurance should cover the damage caused by COVID-19, and further explains the arguments of the United States' support and opposition on this issue for future reference.