New Jersey started the coronavirus business insurance legislation, but just like a virus, it is spreading to other jurisdictions. Ohio and Massachusetts filed very similar bills to what was filed in the New Jersey Assembly.
I blogged about the ex post facto issues of this legislation last night in Coronavirus Insurance Law Update March 25—New Jersey Anti-Virus Bill and Civil Ex Post Facto Laws. If you read these legislative bills very carefully, one can discern the strong public safety and public policy reasons for the legislation and the need for a retroactive remedy.
I am not a constitutional lawyer, but an insurance lawyer I have a lot of respect for is Barry Zalma. I did not get to see his scheduled presentation this week at the now-canceled First Party Claims West Conference. Zalma made the following comment to my prior post:
Don’t forget the Fifth Amendment, this is a taking without compensation.
I am not a Fifth Amendment Constitutional expert either.
Some insurance company attorneys will argue that this is more akin to a Robin Hood scenario. I get accused of acting like Robin Hood sometimes. But, I correct that because Robin Hood had nothing to do with King Arthur, Noble Knights of The Round Table, or a very special wizard.
Thought For The Day