Categories
Business Income Cases

The Cajun Conti case is heading to trial!

Author: Date: 11.10.20

The Cajun Conti case is heading to trial!

I just learned that the trial court in Cajun Conti v. Certain Underwriters at Lloyds (No. 2020-02558, Louisiana, New Orleans Parish) denied the insurer’s motion for summary judgment in a judgment entered on November 4, 2020.  The policy does not contain a virus exclusion.

This development is significant, among other reasons, because the Cajun Conti case may well be the very first Covid Coverage Litigation case filed.  For more information see this story.

Categories
Analytics

Why are the weekly and cumulative filing charts so far behind?

Author: Date: 11.05.20

Why are the weekly and cumulative filing charts so far behind?

Everything on the CCLT website updates dynamically and continually with the database EXCEPT the weekly and cumulative filing charts.  We have deliberately delayed the updating of those filing charts, because we do not want to give the false impression that there were a large number of new cases filed in mid to late October.  During those weeks there were in fact a large number of new docket numbers assigned to existing cases, mostly because of the three new MDLs.  A case with a new docket numbers gets automatically added to our database as if it were a new case.  It’s taking us some time to manually work through those duplicate cases because we’re also working on some exciting new analyses that we’ll announce next week.  Those duplicate cases do appear on the CCLT case list page.  They’re the cases against Arch, Society and United Specialty.  Also, slightly more than half of the newly removed cases already exist in our database as state cases, and it takes a while for us to de-duplicate those as well.

Categories
Analytics

Estimating the number of Covid coverage cases in state court

Author: Tom Baker Date: 11.05.20

Estimating the number of Covid coverage cases in state court

We’re confident that we’ve found substantially all the federal covid coverage cases, among other reasons because we have many federal cases in our database that are not coded as Covid-19 cases in Lex Machina.  But we know that we don’t have all the state cases.  The reason is simple.  There is no PACER for state courts.

We now have what we believe is the first data-based estimate of the total number of state cases.  That number is 696, which is 317 more than we have in the database.  So there are nearly 1700 total covid coverage cases nationwide.

Our estimation method is crude, but defensible.  It relies on the delay between the date a complaint is filed in state court and the date that the case is removed to federal court.  That delay gives us the opportunity to find that state case using our usual state court methods. If we haven’t found the case by the time it’s removed, the odds are that we won’t find it through those usual methods (CourtWire, Courthouse News, Bloomberg, networking with lawyers).

We use the percentage of removed cases that already exist in our database when they are removed to estimate the percentage of total state cases that we have in the database.  So, for example, if we have half of the removed cases in our database before they’re removed, that means there are twice as many state cases as we have in the database.

(A technical note:  to make this estimate we rely only on cases removed after August 15, because we didn’t have a stable method of identifying state cases until early August.)

The accuracy of our estimate depends on whether we are as likely to find a state case that will be removed as we are to find a state case that will not be removed.  One obvious way in which that assumption may be incorrect follows from the $75,000 threshold for diversity jurisdiction.  It’s likely that the reporters who provide the raw material to CourtWire and Courthouse News regard smaller cases as less newsworthy, thus biasing the sample of cases that we hear about from those sources in the direction of larger cases, which are more likely to be removed because they will meet that threshold.

We’re eager to hear about ways to test these and other assumptions underlying our estimate.

Categories
Analytics Business Income Cases Virus exclusions

Motion to Dismiss Box Score Update

Author: Tom Baker Date: 10.29.20

Motion to Dismiss Box Score Update
Virus exclusion in policy No virus exclusion in policy
MTD granted

24

7

MTD denied

5

9

Note that this box score does not include the two summary judgment rulings to date, one in Rose’s v. Erie in DC Superior Court (favoring Erie) and the other in North State Deli v. Cincinnati in NC Superior Court (favoring North State Deli).  Consistent with Erie’s and Cincinnati’s regular business practice (as we understand it), neither of those policies had virus exclusions.

As always, we are eager to hear about cases that we’re missing.  Email us at cclt@law.upenn.edu.

For an explanation of how we classify edge cases, see  Reflections on classifying cases and decisions.

Categories
Business Income Cases Virus exclusions

Not all virus exclusions are equal

Author: Tom Baker Date: 10.27.20

Not all virus exclusions are equal

A second shoe dropped yesterday on The Hartford’s unique virus exclusion.  Last month, a Florida Federal Court ruled that the exclusion was ambiguous in Urogynecology Specialist of Fla. LLC v. Sentinel Ins. Co., Ltd., 6:20-cv-1174-Orl-22EJK, 2020 WL 5939172, at *3 (M.D. Fla. Sept. 24, 2020).  Yesterday, a California Federal Court granted Capital Insurance Company’s motion to dismiss based on the following pathogenic organism exclusion, which the court referred to in the Covid-19 context as a “virus exclusion”:

We do not insure for loss or damage caused by, resulting from, contributing to or made worse by the actual, alleged or threatened presence of any pathogenic organism, all whether direct or indirect, proximate or remote, or in whole or in part caused by, contributed to or aggravated by any physical damage insured by this policy . . . .

Boxed Foods Corp. v. California Capital Ins. Co. , 3:20-cv-04571-CRB (N.D. Cal. Oct. 26, 2020).  In granting the motion to dismiss, Judge Breyer distinguished The Hartford’s virus exclusion, writing, in footnote 8:

The Court’s holding should not be construed to necessarily apply to all virus exclusions. The Virus Exclusion [at issue in this case] casts an exceptionally wide net relative to other virus exclusions because it lacks relevant limitations and ambiguous language. Compare Policy at 47 with Urogynecology Specialist of Fla. LLC v. Sentinel Ins. Co., Ltd., 6:20-cv-1174-Orl-22EJK, 2020 WL 5939172, at *3 (M.D. Fla. Sept. 24, 2020) (involving a virus exclusion that contained ambiguous language and potentially permitted the plaintiff’s claim).

Categories
Analytics Business Income Cases

Reflections on classifying cases and decisions

Author: Tom Baker Date: 10.23.20

Reflections on classifying cases and decisions

I’ve received a couple of questions about the classification of the Order entered in the SSF II v. Cincinnati decision in Ohio state trial court (Franklin Cty, 20CV-04-002644, Sep. 8, 2020) in our Outcomes table.  I’ve been asked why we coded that order as a denial of a motion to dismiss, when, technically, what the judge did was to convert a motion to dismiss into a motion for summary judgment.

My answer is: (1) the Order had the same effect as a motion to dismiss, (2) there are “edge cases” in any coding system that require the exercise of discretion, and (3) we’re working really hard to exercise that discretion in a neutral, fair manner.

As to (1), here’s what the Order did: over Cincinnati’s objection, Judge Holbrook converted Cincinnati’s motion to dismiss into a motion for summary judgment, delayed any discussion of the briefing schedule on the motion for a month and a half, and allowed discovery to proceed.  That’s precisely the procedural effect of a denial of a motion to dismiss.

The evidence of (3) is that we coded Malaube v. Greenwich Ins. Co. (S.D. Florida, 20-22615-Civ-WILLIAMS/TORRES, Aug. 26, 2020) as granting a motion to dismiss, even though what happened in the case was (a) the magistrate judge recommended that the motion be granted and (b) the plaintiff subsequently dropped the case.  Technically, that’s not the granting of a motion to dismiss.  But, Magistrate Judge Torres took the time to write a lengthy, thoughtful opinion explaining why the motion to dismiss should be granted, and the plaintiffs’ dropping of the case suggests that they were pretty sure that Judge Williams would agree.  So, given the choice between leaving Malaube off the list and including it, we included it.

The larger point here is part (2) of my answer.  No classification system can ever capture the complexity the world throws at us.  To make it possible to observe the big picture, we cannot help but simplify some of the fine details.  Speaking for the CCLT team, we do that with humility, always open to being persuaded to do things another way.

Categories
Business Income Cases

Summary Judgment Rulings in Business Income Cases

Author: Tom Baker Date: 10.22.20

Summary Judgment Rulings in Business Income Cases

Our motions to dismiss pie chart and the list of orders on motions to dismiss refer only to motions to dismiss, not to other orders on the merits in the business income cases.  There are two additional decisions on the merits that we are aware of:   a summary judgment granted to an insurer in a District of Columbia Superior Court case and a summary judgment granted to a policyholder in a North Carolina Superior Court case.  Of note, there was not a virus exclusion in the policy at issue in either case.

Rose’s 1, LLC v. Erie Insurance Exchange, No. 2020 CA 002424B, Superior Court of the District of Columbia (August 6, 2020) (granting summary judgment to insurer).

North Carolina Deli et al v. Cincinnati Insurance Company et al, No. 20CVS02569, North Carolina Superior Court, Durham County (Oct. 9, 2020) (granting summary judgment to policyholder).

We are working on creating a dynamic display of summary judgment rulings.

Categories
Analytics Business Income Cases Virus exclusions

Updated motion to dismiss and virus exclusion box score

Author: Date: 10.15.20

Updated motion to dismiss and virus exclusion box score

Insurer wins:  20.  16 cases with virus exclusions; 4 cases with no virus exclusions.

Policyholder wins: 11.  3 cases with virus exclusions; 8 cases with no virus exclusions.

Among cases without virus exclusions: Policyholders lead 8 to 4.

Among cases with virus exclusions: Insurers lead 16 to 3.

Caveats:

  1. These are all the results we know about. I’m sure we’re missing some.
  2. When an insurer wins a motion to dismiss, the insurer typically has won the case at the trial court level.  Technically, a policyholder doesn’t “win” a motion to dismiss.  Rather, the policyholder defeats the insurer’s motion to dismiss.  That means the case survives to the next stage.  It does not mean the policyholder has won the case.

A plea:  Tell us about cases we’re missing.  cclt@law.upenn.edu

We’re working on automating this box score.

[Updated 11/16 to fix the double counting of the Pappy’s Barbershop case.]

 

Categories
Analytics Litigation strategy Virus exclusions

Insurers without virus exclusions are losing their motions to dismiss

Author: Tom Baker Date: 10.07.20

Insurers without virus exclusions are losing their motions to dismiss

Policyholders are winning motions to dismiss in cases without virus exclusions.

We are working on a graphic to depict the following finding in dynamic fashion (so that it updates automatically as our data develop), but in the meantime here is a significant finding that hasn’t yet been reported.

Of the seven cases in which a merits-based motion to dismiss has been denied, four involve insurance policies without any virus exclusion, one involves the Hartford’s Endorsement for Limited Fungi, Bacteria, or Virus Coverage (which contains a virus exclusion that could be read to apply only to losses involving defective materials), and two have virus exclusions that apply to sickness or disease.

By contrast, of the eighteen cases in which a court has granted a merits-based motion to dismiss, only two don’t have virus exclusions.

This matters, among other reasons because the presence of a virus exclusion inhibits policyholders from pleading their cases in ways that would help them meet the requirement that their business income losses result from “physical loss of or damage to” the premises in question.

Bottom line: insurers are winning, overwhelmingly, when their policies have virus exclusions.  But they are losing, at least at the motion to dismiss stage, when their policies do not have virus exclusions.

Categories
Analytics

Behind the scenes at Lex Machina

Author: Date: 09.30.20

Behind the scenes at Lex Machina

Great conversation today with Carla Rydholm and Ron Porter at Lex Machina, comparing notes on identifying Covid Coverage Litigation cases.  Carla is head of product, and Ron is the lawyer behind their new business interruption and Covid 19 case tags. Excellent opportunity to peek under the hood at Lex Machina (more rules-based algorithms and less machine learning than I thought).  And further demonstration of their commitment to building a great database, not just delivering documents.  (I still can’t understand why Bloomberg Law charges the first person who asks for a document and then gives it away to any subsequent subscriber.  The first person who requests the document is the one who’s doing the hard work of deciding that the document matters!)  Plus, it’s nice to talk to people who appreciate how much effort, and how much judgment, goes into creating a bespoke database.