As the COVID-19 pandemic continues to spread throughout the month of August (and likely beyond), business interruption claims continue to rise. While much of the focus has been on the hospitality industry and small businesses across the nation as to whether or not business interruption coverage will be triggered by government mandated closures of operations, toll roads are another segment of the economy that has suffered severe harm. Many toll roads across the nation – including in Texas – were forced to shut down payments or limit methods of payment due to COVID-19. Because of this, businesses within the critical infrastructure – including toll roads – are looking for coverage under their business interruption insurance policies.
Texas Toll Roads and COVID-19
Texas toll roads began as public entities, with The Lone Star State boasting the largest number of toll roads in the country at 25. However, in 2003 a state law passed that allowed for new and existing toll roads to enter public-private partnerships. Between 15% and 25% of Texas’ toll roads are government funded, with ongoing road maintenance funded by drivers as well as gas tax revenue. With the closure of businesses and schools, and the significant drop in leisure travel, toll roads have seen a significant drop in revenue.
In addition to those factors, governmental action has reduced toll road revenue. In March of this year, toll road fees in Harris County were waived for several weeks by order of the Commissioners Court. In April, toll fees resumed but with a hands-free system to mitigate contact between drivers and tollbooth operators, with fees paid online rather than in person. While one month may seem like a short period of time to go without toll fees being paid, in 2017 the Department of Transportation estimated eliminating the toll system would cost Texas up to $40 billion in revenue.
According to the International Bridge, Tunnel, and Turnpike Association (IBTTA), COVID-19 has resulted in tolls plunging 50 to 90% at facilities across the U.S. simply due to fewer vehicles on the road. These facilities generate $20 billion in tolls per year to maintain and upgrade 6,300 miles of highways, bridges, and tunnels. With this in mind, it’s important to consider how specialized business interruption coverage could potentially assist Texas toll roads.
Specialized Business Interruption Coverage
Government authorities and private entities, including the Texas Department of Transportation (TxDOT), typically manage toll roads in Texas. Though toll roads fall within the transportation sector, they are part of the nation’s critical infrastructure according to the Department of Homeland Security (DHS). As such, they remained open during COVID-19 stay-at-home orders, but business disruptions still occurred. Inconsistencies like these have hurt the overall revenue of the toll road systems and could potentially result in specialized business interruption claims.
Although traditional insurance policies may not cover business losses due to coronavirus closures, a few specialized business interruption plans could provide coverage, including leader or attraction property coverage.
Leader or Attraction Property Coverage
Leader property or attraction property insurance endorsements can be included in standard business interruption policies to provide the insured coverage for direct physical loss, damage, or destruction to business property. This property can be a separate business located within a specified distance to the insured’s property that attracted business for the insured, such as a popular mall or amusement park located near a toll road, which would normally provide further revenue for the toll way due driving to increased traffic. Due to the various government mandated stay-at-home orders, the closure of these attractions would ultimately lead to a loss in revenue for any toll systems near the businesses. This could potentially trigger coverage for toll systems affected by COVID-19.
The Need for Physical Damage
In order for business interruption coverage to be triggered, losses must result from covered perils under the policy. While the language of the policy will ultimately dictate what makes something covered, the presence of physical damage is typically needed at either the business or a leader or attraction property. With COVID-19, however, proving that a loss is related to physical damage is incredibly difficult. Although many have claimed the presence of COVID-19 at a location should be sufficient to trigger coverage, insurers disagree.
COVID-19 Business Interruption Attorneys
Toll roads in Texas and across the nation are feeling the impact of lost revenue due to COVID-19. With less people on busy Texas roadways, a decrease in toll system revenue is inevitable. These and other frustrations are likely to continue for toll roads and other critical infrastructure operations even as attraction properties reopen over time. At Raizner Law, our experienced attorneys have successfully handled complex cases against the world’s leading insurance carriers. If your coronavirus business interruption claim has been wrongfully denied, delayed, or grossly underpaid, contact us today to see how we can help.