Ninth Circuit Court of Appeals Certifies COVID-19 Question to the California Supreme Court

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While insurers have been successful in dismissing most COVID-19 property damage claims, especially in federal court, many of the coverage issues that arise in federal court actions are resolved based on state law. When a federal court finds that resolution of a dispute is governed by state law and that there is no controlling state law precedent, the court may certify the state law question to that state’s supreme court for resolution.

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COVID-19 and Insurance Premiums

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The COVID-19 pandemic has brought about myriad issues including whether there is insurance coverage for losses allegedly caused by the virus and its collateral effects. In the United States, insurance companies have been largely successful in avoiding coverage in the majority of disputes over whether commercial property policies provide coverage under business income and extra expense provisions for COVID-19 losses. That is because most commercial property policies require direct physical loss or damage to property for coverage to apply.

To avoid the issue of alleging and proving direct physical loss, one insured took a different tactic. It argued that it was being overcharged its insurance premium because its exposure to loss was much lower due to COVID-19. An interesting and novel approach.

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What Does the First COVID-19 Appellate Decision Mean?

It was bound to happen sooner or later.  Finally, an appellate court has weighed in on a COVID-19 property damage coverage dispute.  This first appellate decision goes into the insurer win column. So what does it mean for future cases?

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Forum Shopping and COVID-19 Coverage Cases

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When bringing a lawsuit there is often strategy to the venue chosen. This is especially true in insurance coverage cases where the outcome can vary by jurisdiction. Another consideration is whether the disputed contract, like an insurance contract, has a forum selection clause, which dictates the venue for the dispute. In a recent case, a court addressed both these issues in deciding a motion to dismiss. The case is a COVID-19 business interruption coverage dispute.

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Reinsurance Trials Set Back by Pandemic

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One year into the pandemic I thought it might be a good time to reflect on how the shutdowns have affected reinsurance trials. What, you say? A reinsurance trial? Aren’t they all arbitrated? Well, yes, most are, but not every reinsurance contract has an arbitration clause and, moreover, not every case brought against a reinsurer is a breach of contract case.

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Brokers and Insurers Prevail in COVID-19 Coverage Action

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There is no question that the COVID-19 restrictions imposed by local and state governments have had an unintentional but devastating effect on businesses both large, medium and especially small. Restaurants, movie theaters, live entertainment, sports. gyms, salons and many other businesses have closed because of the lack of business. While many of these businesses purchased insurance with coverages for business income and extra expense, the lack of direct physical loss of or damage to property has meant that these policies, for the most part, do not cover the loss of business caused by the government shut-down orders.

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Broad Policy Endorsement Dooms Motion to Dismiss in COVID-19 Case

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COVID-19 business interruption rulings periodically have interesting quirks worth discussing. While the majority of cases are being dismissed at the pleading stage, some are not for various reasons. In a recent Ohio state court case, the motion to dismiss on the pleadings was denied in major part because of an endorsement expanding coverage in a business property policy for a restaurant.

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While the COVID-19 Dismissals Pile Up, the Allegations May Matter

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It’s been since September that I have blogged about business income and extra expense and civil authority order insurance coverage for COVID-19 closures and the multiple court cases addressing motions to dismiss. That’s because the cases have been coming down by the dozen, mostly, but not always, on the side of the insurance carrier.

In one of the recent cases, another motion to dismiss the complaint granted with prejudice in favor of the insurer, the court’s analysis was extremely thorough and persuasive. But what struck me most was the court’s commentary on the differences chosen by policyholder counsel in articulating the allegations in the complaint. Those differences are obvious and, although I have not done a statistical analysis, it appears those differences often account for the reasons why some courts have not dismissed these COVID-19 cases. What do you think?

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When the Court Denies a Motion to Dismiss – COVID-19

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As the COVID-19 business interruption cases are decided, many are keeping score. So far, the tally is in favor of the insurance industry, with a number of cases being dismissed for lack of direct physical loss of or damage to covered property by a covered peril.

Most of the cases filed seeking coverage have been met with motions to dismiss by the insurance company. As many of you know, a motion dismiss seeks to throw the case out of court because, on its face, the complaint does not state a cause or action. Basically, the court is saying that the allegations of the complaint, even if true, cannot as a matter of law, lead to coverage. Some courts allow the policyholder to file an amended complaint and some do not. It depends on the specific facts and allegations.

But not all courts have granted the insurance companies’ motions to dismiss. In a recent case, a Missouri federal court denied the motion. In this blog post I examine why.

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Direct Physical Loss of or Damage to Property Under California Law

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Decisions are starting coming down with some frequency in the myriad COVID-19 business interruption coverage cases. This blog post will highlight some aspects of a very recent decision by a California federal court that dismissed the policyholder’s complaint. The court, under California law, addressed the direct physical damage condition of the property policy.

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