April 21, 2020
Multi-District Litigation Sought on COVID19 Business Interruption Lawsuits
Approximately a month since the Louisiana state action, at least nine (9) separate lawsuits[1] have been filed in federal courts throughout the country seeking coverage as a result of the negative impact caused by COVID-19 and the related government orders. Consequently, on April 20, 2020, a pair of Pennsylvania restaurants suing for insurance coverage after they were forced to close due to the outbreak of the COVID19 pandemic filed a Motion for Transfer of Actions Pursuant to 28 U.S.C. 1407 for Coordinated or Consolidated Pretrial Proceedings asking that all related federal actions be transferred to the United States District Court of the Eastern District of Pennsylvania (“Motion”). According to the Motion, the transfer of the similar cases is necessary to provide a “consistent and uniform resolution to the common factual issue” of whether the various COVID19 Governmental Orders trigger coverage under plaintiffs’ business interruption insurance policies, and if so, whether any exclusion applies. The Motion goes on to say that the coordination of a multi-district litigation is of “national interest” and will affect “thousands upon thousands of small businesses and millions of workers.” A copy of the Motion is attached.
As with all of the insurance coverage lawsuits being filed across the country, we will continue to monitor and analyze how these matters progress and update the information as it arises. We stand ready and able to answer any questions that you might have or assist in any way that we can.
[1] The federal lawsuits are currently situated in the Northern District of Illinois, Southern district of Florida, Southern District of New York, Eastern District of Wisconsin, Northern District of Ohio, Central District of California, District of Oregon and Northern District of Texas. Several other similar lawsuits have also been filed in state courts.
April 9, 2020
First Texas COVID-19 Insurance Coverage Lawsuit Filed in Harris County
The State of Texas has seen its first insurance coverage lawsuit filed by a Houston-area wig store claiming business interruption losses. The suit was filed in Harris County against Twin City Fire Insurance Company, a Hartford Insurance company. Similar to other coverage lawsuits filed nationwide, the plaintiff alleges that they have sustained and will continue to sustain covered losses during the COVID-19 outbreak and specifically as a result of the Harris County Stay Home Order eventually issued. The lawsuit further alleges that plaintiff claims for business interruption costs under the Twin City policy was denied.
The plaintiff has asserted claims for breach of contract, unfair settlement practices, violation of the Prompt Pay Act, and breach of the duty of good faith and fair dealing for Twin City’s wrongful denial of the claim.
As with all of the insurance coverage lawsuits being filed across the country, we will continue to monitor and analyze how these progress and update the information as it arises. We stand ready and able to answer any questions that you might have or assist in any way that we can.
March 18, 2020
Louisiana Restaurant First to Seek Declaratory Judgment Seeking Coverage Due To COVID19 Closures
Not surprisingly, the first COVID-19 insurance coverage lawsuit was filed in Louisiana on March 16, 2020. Specifically, in Cajun Conti, LLC v. Certain Underwriters at Lloyd’s, London, filed in Civil District Court of Orleans Parish, the restaurant seeks a declaratory judgment that their Lloyd’s of London commercial policy must cover lost sales and costs of cleaning due to state and local civil emergency orders limiting the number of the restaurant’s patrons and its hours of operation (“Lawsuit”). The Lawsuit suggests that the policy’s direct physical loss requirement is satisfied by the existence of the virus, and the state and city civil orders trigger the policy’s “civil authority” coverage.
The Lawsuit asserts that the contamination of the restaurant by the virus qualifies as a direct physical loss because the virus remains on the surface of objects or materials for up to 28 days, with the ability to infect others. The petition specifically cites in support for its position Louisiana precedent on lead or gaseous fumes. Of real significance (at least as alleged), unlike most first-party policies, the Lloyds policy at issue allegedly does not have an exclusion for losses due to virus or bacteria. Without that exclusion, the restaurant alleges that the absence of an exclusion for a particular cause of loss means that the loss is covered. Specifically, the plaintiff alleges that they seek a declaration “because the policy provided by Lloyd’s does not contain an exclusion for a viral pandemic, the policy provides coverage to plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination.” If accurate, the lack of such exclusion could work against the insurer in this type of venue, and will likely limit the coverage dispute to whether the direct physical loss requirement is satisfied. Interestingly, it is not clear from this Lawsuit whether the insurer actually denied coverage before the insured initiated the Lawsuit.
To date, Louisiana has not enacted any legislation like some other states that require coverage for business loss claims due to COVID19. However, what could be viewed as an effort to provide some support to these types of claims, Governor John Bel Edwards, a former Plaintiff’s attorney, included in Proclamation Number JBE 2020-30, Additional Measures for COVID-19 Public Health Emergency, dated March 16, 2020, the following language:
WHEREAS, these measures relating to gaming establishments, restaurants, bars, cafes and coffee shops are necessary because of the ability of the COVID-19 virus to spread via personal interactions and because of physical contamination of property due to its propensity to attach to surfaces for prolonged periods of time; and…
We can expect that claimants will attempt to rely, in part, on this language, along with potential scientific expert testimony to support their arguments that the presence of the virus constitutes a direct physical loss, hence triggering coverage under the applicable policies.
We will continue to monitor and analyze how this matter progress and update the information as it arises. We stand ready and able to answer any questions that you might have or assist in any way that we can.