If a messenger slips and falls on the sidewalk while delivering a business document to a person working at home, is the subsequent claim covered by the person’s homeowners insurance policy?

With the COVID-19 pandemic causing more people to work full-time from their homes than ever before, Alexandria, Virginia, attorney Daniel Borinsky pondered this potential issue.

“I don’t know how commonly my hypothetical would occur, but it is just a dimension of working at home that I think people should be aware of,” Borinsky said.

At the height of the pandemic in April 2020, a Gallup poll found that 51% of American workers were working remotely full-time. Although that number has steadily declined as mass vaccination and health and safety protocols have been adopted, more people than ever before found their commute to be a matter of steps rather than miles. That adjustment prompted new legal concerns about insurance coverage for incidents that take place during the remote workday.

Homeowners Insurance

With employees moving into their home offices full time, they are bringing with them items that are business property, such as laptops. Christine Barlow, CPCU and managing editor of FC&S Expert Coverage Interpretation, said the line between personal property and business property can get “very complicated.”

She continued, “You’re sitting at your desk, with your laptop, doing your work. But was the desk bought with the intent that it’s for work, or was the desk bought as your at-home desk?” These distinctions can become important in cases where property that is used for business purposes is damaged or destroyed.

“If the insured has a fire, the carrier is not likely to say, ‘well, your desk you’re using for business purposes, and you’re limited to $2,500 for business property, so we’re not going to cover it.’” Barlow said. “It’s not likely that they are going to say that, but technically, they could.” Barlow mentioned that it is important to be aware of what each policy covers, noting that standard homeowners insurance covers up to $2,500 for “business personal property” that is lost or damaged at home.

Another insurance issue complicated by the pandemic involves liability coverage. Similar to Borinsky’s scenario, there are questions as to what types of incidents are covered by what insurance policies. Barlow noted that in some situations, a business’ commercial general liability insurance could come into play if the incident was related to business conducted at the home.

“When you look at the commercial liability coverage that the insured’s employer is going to have, that is going to provide coverage because the insured is performing his work duties,” Barlow said.

Workers’ compensation

At issue as well as employers and employees adapted to remote work is workers’ compensation. Virginia Code § 65.2-105, part of the Virginia Workers Compensation Act, states that work-related accidents must arise out of or in the course of employment in order to be compensable. With the lines between work-related activity and activity within the home more blurred than ever, what exactly defines an activity “in the course of employment” is essential to define in each case.

“A lot of these injuries are not witnessed, which being on the defense side creates complexity for our investigation,” Richmond attorney Amanda T. Belliveau said. Belliveau added that it is important to gather as many facts as possible early on to establish what exactly the employee was doing at the time of the injury.

“I think it’s important to, early on, gather as many facts as you can about what happened,” Belliveau said. “Gather as much fact-finding information as possible, close in time to when the injury occurred, so that the matter can be assessed and properly determined.”

Existing case law provides some guidance as to what injuries are compensable. In 2004, the Virginia Workers’ Compensation Commission found in Miller v. Walsworth Publishing Company that an employee who slipped on ice in her driveway could be compensated for her accident. The employee worked from home and was walking to her car to commute to a client meeting. One year later, in Baker v. B&H Construction Inc., the VWCC found in favor of an employee who was injured when his home office chair overturned after being entangled with a carpet. The commission found the incident to be a “unique hazard of the claimant’s employment.”

Barlow, who said workers’ compensation claims can get “very complicated” in a remote work environment, cited two out-of-state cases: one where a Tennessee woman was attacked by a neighbor while preparing lunch at home during the workday and one where a Maryland customer service representative fell on ice while downloading his work route. Both claims were rejected in their respective states.

In its 2019 annual report, the VWCC cited 48,294 major workplace injuries reported during the year along with 77,318 minor injuries. Although data from 2020 has not been released yet, Belliveau said the number of claims her firm has handled has not been “significantly affected one way or the other.”

“I was a little surprised about [that] because we were anticipating perhaps a drop in claims due to layoffs by employers and a smaller workforce. However, we haven’t really seen that impacting the number of claims that have come in or gone through the litigation process,” Belliveau said. Belliveau noted that the types of claims have been affected by the pandemic, noting an increase in wage loss claims related to furloughs caused by the pandemic.

Belliveau said that in her practice, the most notable uptick of claims comes not from those working from home, but from first responders who have contracted COVID. SB 1375, which was signed into law earlier this month, establishes COVID-19 as a compensable disease under the Workers’ Compensation Act when the disease causes death or disability of first responders, correctional officers and regional jail officers.

Despite the challenges of navigating the pandemic, Belliveau noted that she is “very pleased” with the cooperation throughout that have helped claims continue to move through the system.

Evaluating coverage

Back to the original question: Would homeowners insurance cover the insured if a messenger slipped and fell while delivering business correspondence?

Barlow said the situation is tricky. If the courier works for the post office and is delivering other personal letters and bills, then the courier would have been on the sidewalk anyways. In that case, Barlow said, the injured person would likely need to make a workers’ compensation claim. If the messenger’s sole purpose is to deliver that one business-related message, then liability issues begin to crop up that could vary from policy to policy.

“With insurance, it always depends on the policy language. It always comes down to how the policy language is worded,” Barlow said.

As for Borinsky, the question marks around his specific concern encouraged him to look into a business owners policy to fill any gap in his insurance coverage.

“I think that it is prudent to have it,” Borinsky said, noting that the benefits outweigh the cost in cases of loss of business property. “Even though it is unusual for this type of claim to occur, when it occurs, it could be devastating.”