Lc0222 draft 2021_regular_session

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LC 222
2021 Regular Session
7/8/20 (TSB/ps)
D R A F T
SUMMARY
Establishes rules of construction for interpreting business property in-
surance policies in this state. Prohibits certain conduct by insurers with re-
spect to business interruption claims. Provides that insured may bring
action to seek actual damages for insurer’s violation of prohibitions.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the construction of business property insurance policies; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Sections 2 to 4 of this 2021 Act are added to and made
a part of ORS chapter 742.
SECTION 2. As used in sections 2 to 4 of this 2021 Act:
(1) “Business interruption claim” means a claim under a business
property insurance policy for a loss, including a loss of property or the
use of property, a loss of income or an extra or unanticipated expense,
that results from an interruption, suspension or cessation of business
in or on the business property that the business property insurance
policy covers.
(2) “Business property” means real property and personal property
that is located in this state and is used partly or entirely for com-
mercial purposes.
(3) “Business property insurance policy” means a contract of in-
surance that covers business property for loss or damage that arises
during, in the course of or as a result of business operations in this
NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted.
New sections are in boldfaced type.

LC 222 7/8/20
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state.
(4) “Governmental action” means a declaration, directive, order,
rule or other official action that halts, suspends or restricts, or has
the effect of halting, suspending or restricting, business activities in
or on business property as a means for reducing disease transmission
or otherwise protecting public health from the effects of a pandemic
or other public health emergency.
(5) “Insured” means the named insured in a business property in-
surance policy or another person who is an insured or a beneficiary
under the business property insurance policy.
(6) “Pathogen” means a virus, bacterium or other microorganism
that causes or can cause disease, illness or physical or emotional
damage or distress.
SECTION 3. (1) Except as provided in subsection (2) of this section,
in an action between an insurer and an insured to determine the ex-
istence of coverage for a business interruption claim, a business
property insurance policy must be interpreted in accordance with the
following rules of construction:
(a) The laws of this state apply to the action if:
(A) A party to the action is organized under the laws of this state
or has a principal place of business in this state; or
(B) The action involves or is related to property located in this state
or to business activity conducted in this state.
(b) A direct, physical loss or damage to business property occurs if
the business property is subject to governmental action.
(c) A business property insurance policy does not limit or exclude
a claim predicated upon infection by or exposure to a pathogen unless:
(A) The infection or exposure occurs on, in or in close proximity
to the business property that the business property insurance policy
covers; or
(B) The business property insurance policy provision that limits or
[2]

LC 222 7/8/20
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excludes coverage for infection by or exposure to a pathogen specif-
ically limits or excludes coverage for claims predicated upon govern-
mental action.
(2) The rules of construction set forth in subsection (1) of this sec-
tion do not:
(a) Modify or otherwise affect common-law rules that govern choice
of law determinations for property that is located outside this state;
or
(b) Apply if the application results in an interpretation of a business
property insurance policy that is contrary to the established or ex-
pressed mutual intent of the parties to the business property insurance
policy.
SECTION 4. (1) An insurer may not:
(a) Fail or refuse to investigate a business interruption claim within
15 business days after receiving the claim;
(b) Fail to respond diligently to a business interruption claim or to
correspondence related to the claim;
(c) Fail to make timely payments related to a business interruption
claim;
(d) Deny a business interruption claim for an improper purpose,
such as to delay a settlement or resolution of the claim, needlessly
increase an insured’s costs or otherwise intentionally cause unneces-
sary difficulties for an insured; or
(e) Require an insured to respond to repetitive questions or provide
information about matters or issues that are not necessary for settling
or resolving the business interruption claim.
(2)(a) An insured may bring an action in a circuit court of this state
to recover actual damages that result from an insurer’s violation of a
provision of subsection (1) of this section with respect to the insured’s
business interruption claim against the insurer, together with the
insured’s reasonable attorney fees and costs.
[3]

LC 222 7/8/20
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(b) At least 20 days before bringing an action under paragraph (a)
of this subsection, an insured shall notify the insurer and the Director
of the Department of Consumer and Business Services of the insured’s
intent to bring an action and the basis for the action. The insured
shall send the notification by regular mail, registered mail or certified
mail with return receipt requested. The insured shall provide proof of
notice upon request. For purposes of this paragraph, notice is effective
three business days after the insured sends the notice.
(c) If an insurer does not resolve the issue that is the basis for the
insured’s action within 20 business days after receiving a notice under
paragraph (b) of this subsection, the insured may bring the action
without further notice.
(d) If a court finds that an insurer acted unreasonably in failing to
pay a business interruption claim, the court may award treble the
amount of damages the court would have otherwise awarded to the
insured in an action under this section.
(3)(a) An insured must bring an action under this section within
two years after the date on which the insured discovered or should
have discovered the insurer’s violation of this section.
(b) If an insured sends a written notice under subsection (2)(b) of
this section, the time period specified in paragraph (a) of this sub-
section is tolled for the length of time necessary for the insurer and
insured to comply with this section.
(4) Except as otherwise provided in this section, ORS 742.061 applies
to an action that an insured brings under this section.
SECTION 5. (1) Sections 2 to 4 of this 2021 Act apply to actions that
an insured brings after the effective date of this 2021 Act and to
actions that an insured brought before the effective date of this 2021
Act but for which a court has not entered a judgment before the ef-
fective date of this 2021 Act.
(2) Subsection (1) of this section does not require a retrial of any
[4]

LC 222 7/8/20
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fact that a jury or court found in any action brought before the ef-
fective date of this 2021 Act.
SECTION 6. This 2021 Act being necessary for the immediate pres-
ervation of the public peace, health and safety, an emergency is de-
clared to exist, and this 2021 Act takes effect on its passage.
[5]

Lc0222 draft 2021_regular_session

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