Factory Mutual Says Wynn COVID-19 Suit Doesn’t Have Physical Damage Grounds

Factory Mutual Insurance Co., one of Wynn Resorts’ insurance providers, is asking a federal court to take judicial notice on portions of the gaming company’s suit against the insurance provider. It asks that it note the casino operator’s COVID-19 policy doesn’t include physical damages.

In documents filed with the US District Court, District of Nevada, Factory Mutual says Wynn is seeking damages for its Las Vegas venues — Wynn and Encore — stemming from the coronavirus pandemic. The insurance company acknowledges the integrated resort operator has communicable disease coverage to the tune of $1 million. But Wynn is seeking damages well in excess of its coverage.

Factory Mutual adds Wynn is attempting to exploit loopholes in its other policies to garner more monetary damages. But the insurance provider says those policies are inapplicable in this case because those policies require damage or physical loss.

As the great majority of courts to have addressed the question have concluded, neither the presence of COVID-19 nor the loss of use of physical premises because of closure orders qualifies as ‘physical loss or damage,’” said the insurance company in a court document.

Following the onset of the global health crisis in early 2020, US casinos endured multi-month closures, losing 45,600 operating days in that year while enduring a 31.2 percent drop in revenue from 2019.

Casino Operators Find Tough Sledding

Wynn is far from the only gaming company to sue an insurance provider for coronavirus damages. It’s part of an expansive group of commercial and tribal operators to do so.

Last year, Caesars Entertainment brought a $2 billion suit against a group of insurers, including Allianz, Chubb, Aspen, and Lloyds of London, claiming those providers refused to make good on coronavirus payouts.

However, as Factory Mutual notes in its documents, courts are consistently siding with insurance companies. They are finding that simply because a casino was forced to close and lost business, that doesn’t mean physical damages were incurred.

Case Continues

In January, Factory Mutual sought dismal of the case, but US District Court Judge Andrew Gordon denied that motion.

For now, the case is ongoing and it appears the insurance will pay the communicable disease coverage, but it’s not likely to readily pay Wynn’s other claims unless ordered to do so.

“In sum, Wynn seeks coverage it did not pay for, and attempts to impose a financial burden that Factory Mutual never agreed to undertake. Judgment on the pleadings as to all claims other than those based on the limited Communicable Disease Provisions is appropriate,” according to Factory Mutual’s legal brief.