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Business Income Cases CCLT Reporting Methods

Ja-Del Inc. SJ Order Vacated and the CCLT Database Updated

Author: Tom Baker Date: 03.18.21

Ja-Del Inc. SJ Order Vacated and the CCLT Database Updated

About a week ago, we learned that the summary judgment order granted in favor of Ja-Del Inc. in Ja-Del Inc v. Zurich American Insurance, 2016-CV11209 (Jackson Cty Circuit Ct, Missouri) (Feb. 4, 2021) had been vacated.  That was a new one for us.  There is nothing “off the rack” about the CCLT database or the CCLT website, so we had to scramble to figure out how to reflect that development.  Simply deleting the earlier Order wasn’t an option, because that Order and the court’s decision to vacate are part of the history of the litigation.  But we didn’t want the Order to continue to appear on the list of on-the-merits Judicial Orders on the website, nor did we want it to count for the box score.  Thanks to Alex Shor, we came up with a solution.  The Order remains in the database, but it no longer appears on the CCLT website.

Please keep us informed of these and other developments, particularly in state court cases.  And please be patient when those developments don’t fit neatly into our database structure.  We’re building this plane while we’re flying it!

Categories
Analytics Business Income Cases

Update on Dismissals Without Prejudice

Author: Sean Bender Date: 03.08.21

Update on Dismissals Without Prejudice

With the latest update to our coding methodology, we are now tracking 30 cases where the trial judge granted the insurer’s motion to dismiss but gave the policyholder leave to amend their complaint:

  Virus exclusion in policy No virus exclusion in policy Total
Amended complaint filed 5 9 14
Appeal filed 6 1 7
No further action 8 1 9
Total 19 11 30

 

As these data show, most plaintiffs whose policies do not have a virus exclusion have elected to file an amended complaint. Those whose policies do have a virus exclusion have been more likely to seek appellate review of the dismissal or abandon the litigation entirely. With such a small dataset, though, it’s hard to draw causal inferences from this trend. A few additional notes:

Amended Complaint Filed: Of these fourteen cases, insurers have renewed their motion to dismiss in eleven, one of which – Harvest Moon Distributors LLC v. Southern Owners Insurance Company – was granted (again without prejudice) earlier this month. The policyholders in that case have until March 12 to file a second amended complaint.

Appeal Filed: Because an order dismissing a case without prejudice is not a final judgement, it’s usually not appealable under 18 U.S.C. § 1291. We’re going to leave them coded as-is for now, but know that in the seven cases where policyholders have appealed these orders, judgement has actually been entered dismissing the cases with prejudice pursuant to Rule 41(a).

No Further Action: When plaintiffs fail to file an amended complaint following dismissal without prejudice, courts will eventually enter judgement on that order and terminate the case, pursuant to Rule 41(b). That has now happened in seven of these nine cases: three with prejudice, and four without prejudice.

Categories
CCLT Reporting Methods

Change in the Judicial Rulings List and Box Score

Author: Tom Baker and Sean Bender Date: 03.01.21

Change in the Judicial Rulings List and Box Score

Now that there are so many judicial rulings, we have discontinued the practice of treating a magistrate judge’s report and recommendation as an order.  That practice made sense in the early days of the Tracker, when there were not many rulings.  The case that brought this issue to a head is Tappo of Buffalo, LLC v. Erie Insurance Company, which was transferred to the WDPA Erie MDL court after the magistrate judge assigned to the case in WDNY issued a report and recommendation.  Now that Tappo has been transferred to the MDL court’s docket, it is definitely not accurate (if it ever was) to list that case as having been dismissed without prejudice.   The only other case that this change in our practice affects is South Florida ENT Associates v. Hartford Fire Insurance Company, in which an early November report and recommendation by Magistrate Judge Torres has not yet been acted upon by Judge Williams.

Categories
Analytics Business Income Cases Federalism

Why insurers prefer federal court

Author: Tom Baker Date: 02.26.21

Why insurers prefer federal court

Last fall, before the onslaught of rulings in motions to dismiss in the Covid 19 BI cases, Chris French asked why policyholders were filing so many of these cases in federal court.  He provided a variety of answers, but the prediction that plaintiff/policyholders would do better in federal court than state court was not among them.  Indeed, his prediction was just the opposite:  “a plaintiff’s chances of winning are generally much higher in state court than in federal court.”

It’s still early days in the litigation, but the early results suggest that Chris was right.  Our new judicial ruling box score separates state and federal court decisions, and the difference is really dramatic.  Check it out here.

Categories
Business Income Cases

Defense Verdict in Cajun Conti

Author: Tom Baker Date: 02.17.21

Defense Verdict in Cajun Conti

JUDGMENT

The trial on the merits for Plaintiffs’ Petition for Declaratory Judgment took place from December 14, 2020 through December 16, 2020. Appearing at the trial for the respective parties were the following:

James Williams, Desiree Charbonnet, Roderick Alvendia, Jennifer Perez, Jennifer Keuchmann, Anthony Irpino, Phillip La Borde, Bernard Charbonnet, Matthew Sherman, , John Houghtaling, and Daniel Davillier, Attorneys for Plaintiff; Allen Miller, Virginia Dodd, and Kevin Welsh, Attorneys for Defendant

After the trial, the parties submitted post-trial memoranda, and the Court thereafter took the matter under advisement. The Court, after hearing testimony and considering applicable law as well as the entire record, renders the following judgment:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Petition for Declaratory Relief is hereby DENIED.

JUDGMENT RENDERED AND SIGNED on this 10th day of Februarv. 2021 in New Orleans, Louisiana.

Judge Paulette R. Irons

-~

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Uncategorized

Please tell us about cases in Bankruptcy Court!

Author: Tom Baker Date: 02.16.21

Please tell us about cases in Bankruptcy Court!

Lex Machina is wonderful in many ways, but the Lex Machina database does not include bankruptcy cases.  That means that we do not yet have a good way to identify Covid-related coverage cases that are proceeding as adversary proceedings in Bankruptcy Court.  If you know of such a case, please send us the caption, and we will track it down and use sources other than Lex Machina to obtain the relevant information.

Categories
Business Income Cases Litigation strategy

New Discovery Protocols for Covid BI Business Interruption Cases

Author: Tom Baker Date: 02.12.21

New Discovery Protocols for Covid BI Business Interruption Cases

I am pleased to see that the Institute for the Advancement of the American Legal System at the University of Denver has released discovery protocols for “Business Interruption Disputes Arising from the COVID-19 Pandemic and Similar Public Health Threats.”  Great to see so many people I know on the working group: Steven Badger, David Brown, Jay Levin, Adam Levitt, Judge Lee Rosenthal, Ron Schiller, and Joyce Wang.   What a balanced, powerhouse group!  Just in time for the discovery disputes that will follow on the current winnowing stage of the litigation.

Categories
Analytics Business Income Cases

Update on Dismissals and Answers in the Covid Business Interruption Coverage Cases

Author: Tom Baker Date: 02.04.21

Update on Dismissals and Answers in the Covid Business Interruption Coverage Cases

As I always emphasize, our data are incomplete:

  1. We know that we don’t have all the state Covid Coverage cases because nobody has a good system for finding those cases.  We think that we’re finding out about all or most of the dismissal orders because of our readers (thank you!!), but we can’t be sure.
  2. We know that our state court data aren’t up to date even on the state cases that we do know about, because too many state electronic dockets are terrible or cost too much to access or both.  Again, we think that we’re finding out about all or most of the dismissal orders because of our readers (thank you, again!!), but we can’t be sure.
  3. Because we are human, we are not as up to date with federal cases as automated systems like (our favorite) Lex Machina.  We’re pretty sure that we have all the dismissal orders, and almost as sure that we have all the voluntary dismissals (perhaps with a lag of a week or so), but we can’t be sure.
  4. Because we are human, we make coding mistakes (but so do the automated systems, as we have discovered).

Strongly in our favor, we know lots of things about the federal cases that the automated systems do not.  And we are doing more to figure out what’s happening in the state cases than anyone else who is publicly reporting their findings.  (I expect that insurers with lots of exposure know more than we do, and not only about their own cases, but those data are under wraps.)

With those caveats, here is what our data are telling us right now about the answers and dismissal events in the business interruption cases:

  1. There are 216 cases in which at least one insurer has filed an answer and not filed a motion to dismiss, suggesting that those cases are proceeding toward the summary judgment phase of the litigation.
  2. As shown in the table below, 197 cases have been voluntarily dropped, 43 cases have been ordered dismissed without prejudice, and 99 cases have been ordered dismissed with prejudice.

The true number of cases that are proceeding toward the summary judgment phase of the litigation almost certainly is higher than our data indicate, because we don’t have good state court data on answers and dismissal motions.  For the same reason, the true number of voluntary dismissals is likely to be higher than our data indicate.  By contrast, our data regarding “on the merits” dismissal orders should be very close to the mark.

Dismissal Event
Number of Cases
Voluntary Dismissal
197
Order of Dismissal Without Prejudice
43
On the Merits
Not on the Merits
26
17
Order of Dismissal With Prejudice
99
On the Merits
Not on the Merits
87
12

The numbers in this table don’t line up exactly with those on the judicial rulings page because (a) a case only appears in this table if all the defendants have been dismissed and (b) the judicial rulings page doesn’t include dismissals that are not on the merits.

Categories
Analytics Federalism

Federalism by the numbers in CCLT

Author: Tom Baker Date: 01.25.21

Federalism by the numbers in CCLT

If insurance law is state law, why are so many of the Covid coverage cases in federal court?  Any lawyer knows the answer: diversity jurisdiction.  When a defendant from one state is sued in state court by a plaintiff from another state, that defendant typically can remove the case to federal court .  There are 1099 federal cases in the CCLT database as of today.  358 of those cases started in state court, and were removed to federal court by the insurance company defendant.

There are 380 state cases in the CCLT database.  Because state courts don’t have uniform, accessible electronic dockets, we’re sure that there are many more state cases that we don’t know about.  Using the method explained in this post, we estimate that there may be as many 553 additional state cases that should be in our database, for a total of over 900 total state cases — nearly as many as there are in federal court.

Please use the CCLT case list to check to see if your state cases are missing.  You can search the list using the search tool, and you can sort it by state, title, and court.  Let us know what we’re missing by emailing cclt@law.upenn.edu.

Categories
Business Income Cases

CCLT is back in the Wall Street Journal

Author: Tom Baker Date: 12.29.20

CCLT is back in the Wall Street Journal

Leslie Scism’s latest WSJ article uses CCLT data to provide context for the story of the North Carolina restaurant that won a summary judgment victory against Cincinnati Financial.  We’re pleased to be a trusted source of objective information about the Covid coverage litigation.