The Creationists at Answers in Genesis and Crosswater Canyon (the parent companies for the Creation Museum and Ark Encounter, respectively) have filed a lawsuit against their insurance providers for not covering their losses for three months when they were forced to close due to COVID. They claim they are legally owed that money, despite no physical damage to the properties, because their insurance policies covered it.
The insurance providers, which primarily serve churches and ministries, reject that argument. Brotherhood Mutual Insurance Services LLC and Brotherhood Mutual Insurance Co. say (I’m paraphrasing here) the Creationists aren’t owed a damn thing and they would know that if they ever bothered to read the policies.
According to an amended complaint filed Wednesday in a federal district court in Kentucky, Answers in Genesis says it paid $148,930 for “Multi-Peril” coverage of losses up to $6,160,000 for the Creation Museum while Crosswater Canyon paid $277,291 for similar coverage of losses up to $45,000,000 for Ark Encounter.
Specifically, this money would’ve covered anything those attractions lost in earnings, donations, or additional expenses due to physical damage, infectious diseases, or “interruption by civil authority.”
The Creationists say their attractions fell under both the “infectious disease” and “interruption by civil authority” provisions because their employees “were exposed to and/or contracted COVID-19” and Kentucky ‘s governor issued an executive order in March of 2020 shutting down businesses like theirs.
Their lawsuit goes after the insurance providers for, among other things, breach of contract and violating the Kentucky Consumer Protection Act (by saying they would cover losses and then not doing it). The lawsuit also includes 162 pages of the insurance policies as well as the rejection letters when the Creationists filed their claims.
In short, the insurers say the infectious disease provision doesn’t apply because there’s no evidence the places shut down due to a COVID outbreak among staffers (whether or not they ever caught it). More importantly, the “interruption by civil authority” provision doesn’t apply because the executive orders didn’t result in the “complete interruption” of operations which denied them access to the premises:
… If ministries are able to continue operations even partially, for example, by offering alternative access via video streaming or conducting e-commerce, they have not incurred a complete interruption of their operations.
That means churches that live-streamed their sermons and took donations online when they couldn’t hold in-person services or pass around a collection hat were also ineligible for recoveries. In the case of these Creationists, the insurers pointed out they were still doing business despite the shutdowns:
The information you provided indicates there was an order of civil authority that prohibited your staff or participants from accessing your premises. However, it did not cause a complete interruption of your operations. You indicated that you continued your ministry operations via the use of online media, including Facebook Live, virtual fundraising events, and the live steaming service Answer.tv. You also maintained personnel to provide basic business and security operations and services. The continuation of your ministry operations does not meet the policy criteria of a ‘complete interruption. Accordingly, there is no coverage available to you under this peril.
They’re basically arguing that the Creationists didn’t read or fully understand what they were signing.
According to Law360, this case isn’t necessarily a slam dunk for one side or the other (though keep in mind these attractions aren’t analogous to churches or secular businesses):
Federal district courts around the country have permanently tossed about 48% of the 1,394 suits from policyholders against their insurance companies seeking pandemic loss-related coverage, according to Law360’s COVID-19 Insurance Case Tracker. Another 17% of the pandemic insurance suits filed in federal courts have been voluntarily dismissed, the tracker shows, although about 32% have yet to be fully decided.
In the Sixth Circuit, where Kentucky sits, judges have followed the trend of the rest of the federal judiciary, consistently ruling against policyholders seeking COVID-19 coverage, including a group of restaurants, an Italian cafe, an Ohio bridal salon, a group of private preschools, the owner of a Kentucky brewpub and the operator of Ohio eye care clinics.
The person overseeing this case is U.S. District Judge David L. Bunning, a conservative judge appointed by President George W. Bush. But before you jump to any conclusions based on that alone, Bunning famously ordered Christian bigot and county clerk Kim Davis to go to jail in 2015 after she refused to issue marriage licenses to same-sex couples.
The Creationists in this case also aren’t known for winning lawsuits. In 2019, Ark Encounter hilariously sued its insurance providers for not covering… rain damage. Both sides settled out of court in late 2020. Details of that settlement remain under wraps.
It’s also worth noting the Creationists didn’t exactly suffer during the pandemic. The Ark’s parent company, Crosswater Canyon, received between $1 million and $2 million from the Paycheck Protection Program. And Ham also raised at least $1,135,009 in a separate fundraiser to offset COVID-related losses. If they were struggling, it wasn’t from a lack of funding. Hell, in June of 2020, when the Creation Museum was on the verge of reopening, Ham bragged about its “Multi-Million-Dollar Upgrade“:
Ken Ham, CEO of Answers in Genesis, the ministry behind the Creation Museum and the Ark Encounter, said, “I’m thrilled we can open our doors once again to visitors. Also today, we can showcase the museum’s new state-of-the-art planetarium. It joins the other major museum upgrades we’ve been working so hard to complete over the past two years. With two high-tech laser projectors, tilted dome, and more seating, the Stargazer Planetarium is a highlight of our upgrades and is definitely a must-see for all museum visitors.”
The planetarium cost an estimated $1.2 million while a “$3 million high-tech virtual reality experience,” Truth Traveler, was scheduled to open at Ark Encounter the following month. Even though those exhibits were planned before the pandemic, the point is that work on them presumably continued even during the shutdown.
Which is all to say: They weren’t unable to keep the businesses going because of COVID. They suffered the same way every business suffered, with a brief shutdown and a short-lived cap on visitors. If anything, it’s the businesses around those attractions—the hotels and restaurants that rely on local tourism—that need financial help far more than the Creationists do.
One more interesting side note: Paleontologist Dan Phelps, whose been instrumental in tracking attendance numbers at Ark Encounter, pointed out to me that the insurance policy in the lawsuit says the Ark Encounter building is insured for $84,600,000.
That appears to be in contrast to the Grant County property valuation administrator, who assessed it at $48,068,200 in 2017. The Grant County Board of Education assessed it at $130,000,000 the following year. Meanwhile, Crosswater Canyon’s latest 990 Form for the IRS, from 2019, says the building is worth $98,340,803. Make of all that what you will.