I’ve lived all over the country and prior to making my way to the East coast, I was lucky enough to live in the Rogue Valley in Southern Oregon, home of Harry and Davids, Jackson and Perkins, and—for you craft beer aficionados—Rogue Brewery. One of my favorite things in the Rogue Valley is the Shakespeare Festival in Ashland, Oregon, which runs from February through October every year.
In 2013, because of wild fires in the area (the Rogue Valley is high desert, and temperatures in the summer time often get above 100 degrees), the Shakespeare Festival was forced to cancel shows. Smoke had filled one of the outdoor theaters. The insurance company, Great American, did not dispute the theater was covered property, but argued that the air inside the theater was not property, and therefore poor air quality was not covered.
U.S. District Judge Mark D. Clarke disagreed, stating “Defendant stresses that the loss or damage must be physical, but does not give a sufficient explanation for why air is not physical. . . .while air may often be invisible to the naked eye, surely the fact that air has physical properties cannot reasonably be disputed.” The case is Oregon Shakespeare Festival Association v. Great American Ins. Co., case number 1:15-cv-01932, 2016 WL 3267247 (D. Ore. June 7, 2016).
