LMA5391 Coronavirus Exclusion

Posted on by Stephen Tomlinson

Analysis of LMA5391

About LMA5391

Drafted by the Lloyd’s Market Association (LMA) and released in March 2020, LMA5391 is a general coronavirus exclusion that was not designed for any particular type of policy.

LMA5391: the exclusion

LMA5391 excludes claims that are caused by or result from:

  • COVID-19 (i.e. the disease);
  • the virus (SARS-CoV-2) which causes the COVID-19 disease;
  • mutation or variation of that virus; and,
  • the fear or threat of any of the above.

A relatively narrow exclusion…

Compared to other LMA Communicable Disease exclusions, LMA5391 is a relatively narrow exclusion because:

  • the words ‘caused by or result from’ have the effect that the exclusion only applies where the listed items are the proximate cause of loss; and,
  • LMA5391 does not exclude all diseases transmissible between organisms, though the exclusion does extend to the underlying virus, mutations or variations thereof, and fear or threat of the preceding elements.

… but what about ‘variations’?

It is logical to exclude loss caused by mutations of SARS-CoV-2 on the basis that the virus was a cause of the loss. However, the word ‘variation’ in LMA5391 creates uncertainty since the exclusion could be applied to other coronaviruses on the basis that they are ‘variations’ of SARS-CoV-2 – this may not have been intended by the drafters of LMA5391, but the words are open to interpretation and this construction would not have been possible if the word ‘variation’ had been omitted.

The reason that the word ‘variation’ is significant is that some human coronaviruses continually circulate in the human population, such as human coronavirus OC43 (HCoV-OC43), human coronavirus HKU1 (HCoV-HKU1), human coronavirus 229E (HCoV-229E) and human coronavirus NL63 (HCoV-NL63). The symptoms of these human coronaviruses are generally mild, though others are more lethal –

  • Middle East respiratory syndrome-related coronavirus (MERS-CoV) has been identified as causing 858 deaths from outbreaks in 2012, 2015 and 2018; and
  • severe acute respiratory syndrome coronavirus (SARS-CoV) has been identified as causing 774 deaths between 2002 and 2004.

Regardless of its intention, LMA5391 should be explicit about whether other coronaviruses are within the scope of its exclusion.