23-09-2020
Judge again rules for policyholder in pandemic coverage fight
Insurance AlertssJudge again rules for policyholder in pandemic coverage fight
A federal judge in Missouri on Monday issued his second ruling in favor of policyholders with coronavirus-related business interruption claims
U.S. District Court Judge Stephen R. Bough denied Lansing, Michigan-based Owners Insurance Co.’s motion to dismiss a suit brought by a dental practice group that sought coverage for income lost due to mandatory COVID-19 lockdowns.
The ruling comes about a month after Judge Bough issued one of the first rulings in favor a policyholder in a pandemic-related case. Hundreds of policyholders have sued their insurers but most of the early rulings have been in favor of insurers, including a ruling in an Illinois federal court on Monday in a case brought by another dental office.
In the Missouri case – Blue Springs Dental Care LLC et al v. Owners Insurance Co. – the Kansas City-area dental offices argued that government-ordered closings imposed earlier this year to stem the spread of COVID-19 constituted a direct physical loss under the terms of their policy and triggered business interruption coverage.
The policyholders argued that the presence of the virus on or around their offices damaged the properties. Citing his earlier ruling in Studio 417 Inc. v. Cincinnati Ins. Co., Judge Bough noted that the policy did not define the term “direct physical loss.”
“Taking Plaintiffs’ fact allegations as true, as the Court must at this stage, and after drawing reasonable inferences from those facts in their favor, Plaintiffs plausibly allege that COVID-19 physically attached itself to their dental clinics, thereby depriving them of the possession and use of those insured properties,” the ruling states. A Lake Zurich, Illinois-based dental office on Monday received a less favorable ruling on its pandemic-related claim with Cincinnati Insurance.
Ruling in Sandy Point Dental P.C. v. The Cincinnati Insurance Co. U.S. District Court Judge Robert W. Gettleman of the Northern District of Illinois Eastern Division said the policy for the dental office required physical damage to occur to trigger coverage.
“In essence, plaintiff seeks insurance coverage for financial losses as a result of the closure orders. The coronavirus does not physically alter the appearance, shape, color, structure, or other material dimension of the property. Consequently, plaintiff has failed to plead a direct physical loss — a prerequisite for coverage,” the ruling states.
Sandy Point Dental was part of a wave of hundreds of policyholders that sued their insurers earlier this year after mandatory lockdowns were enforced. Out of about a dozen rulings so far, most have favored insurers. The Studio 417 case, however, which was brought by a group of hair salons and restaurants, was scheduled for mediation after policyholders won the first round of litigation.
In addition to the two Missouri cases in favor of policyholders, a state court in New Jersey last month ruled that Optical Services USA/JC1 v. Franklin Mutual Ins. Co. could proceed. The policyholder in the case argues that “physical damage occurs where a policyholder loses functionality of their property,” court papers said.
Source: Business Insurance
