The 9th Circuit today affirmed the three decisions argued in August: Mud Pie, Chattanooga Baseball, and Selane. This leaves policyholders (and Erie v. Tompkins?) with a batting record of .000 in federal appellate court. The 9th Circuit panel discussed certification in oral argument, but then chose to go with an Erie guess that the California Supreme Court would reject the loss of use = physical loss theory. Perhaps they’re waiting for a case in which the policyholder made the kind of factual allegations about virus on the premises and physical alterations that have allowed cases like P.F. Chang, Ross Stores, and Goodwill Industries to survive motions to dismiss in California state court? Time will tell.
