Clearview Realty Ventures v. City of Laconia, No. 2022-0196 (N.H. 4-18-23): Damage Plainly Means Damage In the Physical Sense and Not Just Loss of Use
Although arising in the property taxation area, the New Hampshire Supreme Court affirmed the view that damage plainly means physical damage and not merely loss of use. This case involved a New Hampshire property taxation statute that required local taxing officials to prorate a building’s assessment “[w]henever a taxable building is damaged due to unintended fire or natural disaster to the extent that it renders the building not able to be used for its intended use.” Certain property owners who had their business closed by executive order to stem the spread of COVID-19 claimed they were entitled to proration under this statute. But the New Hampshire Supreme Court disagreed holding that the plain meaning of the term “damaged” meant that the buildings had to suffer damage in the physical sense and not just loss of use. This decision reaffirms the view of the nearly unanimous state and federal appellate decisions nationwide in the commercial property insurance context that physical loss or damage means just that and cannot be expanded to include just economic losses suffered when businesses had to shut down to stop the spread of COVID-19.