Following on the heels of the recent decision in Santo’s Italian Cafe, the U.S. Court of Appeals for the 6th Circuit summarily reversed the N.D. Ohio decision granting summary judgment to the policyholders in Henderson Road Restaurant Systems, Inc. et al v. Zurich American Insurance Company, on the grounds that Judge Polster’s Henderson Road decision is inconsistent with the 6th Circuit’s Erie guess in Santo’s Italian Cafe. (It is.)
I’ve been thinking hard over the last few days about why the 6th Circuit is rushing to get ahead of the Ohio Supreme Court on Covid coverage law. In Santo’s Italian Cafe, the 6th Circuit relied on the Ohio Court of Appeal’s Mastellone decision (175 Ohio App. 3d 23) to make an Erie guess about what the Ohio Supreme Court would say about the Covid coverage cases.
Any of the law students on my outstanding research team could easily distinguish Mastellone from Santo’s Cafe and Henderson Road on both the policy language and the facts. Readers will have their own views on whether the distinctions are persuasive. I’m not taking a position here, because I’m waiting to here from the court that’s in charge of such questions: the Ohio Supreme Court.
As readers who are deep into the pandemic litigation will know, the Ohio Supreme Court is presently considering a certified question in Neuro Communication Services that will provide that court with the opportunity to explain whether the differences in the policy language and the facts in Mastellone matter or not to the pandemic cases. Why the 6th Circuit didn’t wait for that decision (or certify to the Ohio Supreme Court the closely related question in Santo’s and Henderson) is a mystery.
I understand that the Ohio state courts have stayed all their Covid business interruption coverage cases pending the Ohio Supreme Court’s decision in Neuro Communication Services. (Readers, please correct me if I’m wrong.) Why the federal courts deciding Ohio law cases haven’t done the same is another mystery.