Scott Seaman Rebuts Policyholder Attorneys' Attack on Couch on Insurance Treatise: "It's a Straw Man Argument"

Hinshaw partner Scott Seaman—co-chair of the firm's global insurance services practice group—recently spoke to Shawn Rice of Law360 as part of an article titled "Policyholder Attys Decry Treatise's Impact on Pandemic Suits."

Seaman reacted to arguments made by policyholder attorneys in a soon-to-be published law journal article that seek to rebut Section 148:46 of the Couch on Insurance treatise, which describes as a "widely held" majority rule the notion that physical loss or damage in an insurance claim requires a "distinct, demonstrable, physical alteration of property." Courts across the country have cited this rule in rulings that resulted in the dismissal of business interruption claims related to losses stemming from COVID-19.

Seaman called the policyholder attorneys' position "a creative but misguided attempt to set up a false straw man argument and try to shoot it down." The article itself is "selective and one-sided in its use and discussion of case law," he added. Seaman also noted that Couch is a secondary source, and most courts have simply considered applicable case law precedent: "There simply has not been any … conspiracy of judicial abdication, circularity, selectivity, or stupidity as suggested by the article."

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"Policyholder Attys Decry Treatise's Impact on Pandemic Suits" was published by Law360, September 17, 2021