Author: Tom Baker

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. 20–CVS–02569, 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.

Categories
Analytics

Using CCLT data in the fight over immunity legislation

Author: Tom Baker Date: 09.27.20

Using CCLT data in the fight over immunity legislation

John Witt from Yale Law School and his student Josh Czaczkes are using the CCLT insurance policy database to see whether general liability and businessowners liability policies regularly contain virus exclusions.  Their preliminary finding is “mostly not,” suggesting that the main beneficiaries of Covid immunity legislation may be insurers, not small business.  You can find their preliminary results here.  I’m delighted to see the CCLT database used in this way!

 

Categories
Business Income Cases Litigation strategy

New! A list of cases with merits rulings on the motion to dismiss

Author: Tom Baker Date: 09.25.20

New! A list of cases with merits rulings on the motion to dismiss

On our main page we have a pie chart displaying the count of the outcomes of merits rulings on motions to dismiss — rulings in which the court makes a determination that the plaintiff has or has not alleged facts that, if true, could support coverage.  We now have a list of those cases at the link below the chart.  I’m sure that it’s not complete, but it’s as complete as we can make it without your help.  Please let us of of any additional rulings.

Categories
Business Income Cases Federalism Litigation strategy

Forum Shopping in Covid 19 Business Interruption Suits

Author: Tom Baker Date: 09.16.20

Forum Shopping in Covid 19 Business Interruption Suits

Chris French has a new essay questioning the decision to file Covid 19 coverage suits in federal courts:  Forum Shopping COVID-19 Business Interruption Insurance Claims.  Chris summarizes the empirical support for the conventional wisdom that state courts are more favorable to policyholders than federal courts and asks why policyholder lawyers are nevertheless filing suits in federal court.  Using CCLT data, he reports the number of business interruption claims in federal court (over 700 as of today) and the percentage of those that are filed as class actions (about 1/3).  He suggests that policyholders would be better served by filing state-based class actions in state court.  We have state court class actions in the CCLT database.  Thus, one of the many questions that CCLT data will help answer is whether Chris French is right.

Categories
Beyond the U.S.

A Decision in the FCA Test Case

Author: Tom Baker Date: 09.15.20

A Decision in the FCA Test Case

The High Court released its decision today.  It’s 150+ pages long and covers a host of issues.  The FCA reports that the court generally found in favor of the policyholders.  Notably, the insurance policy provisions that the court considered were the “non-damage wordings,” many of which differ significantly from the policy provisions at issue in the U.S. business interruption cases.  While there is much grist for the mill in the decision (and I particularly enjoyed the court’s discussion of principles of interpretation), the decision does not address the key threshold issue in the U.S. cases: can the policyholders demonstrate that they have satisfied the “physical loss of or damage to property” requirement?

Categories
Analytics Business Income Cases

WSJ Uses CCLT!

Author: Tom Baker Date: 09.03.20

WSJ Uses CCLT!

CCLT has become a trusted source for information about Covid-related insurance coverage litigation, as demonstrated in Leslie Scism’s latest piece in the Wall Street Journal.  The link is here.  The WSJ cites CCLT’s weekly filing statistics, cumulative cases, and our tracking of the judicial decisions to date.  To our regret, we were not aware that policyholders had notched an additional victory in the ongoing motion to dismiss battle in mid-August.  See Optical Services v. Franklin Mutual Insurance Company, No. BER-L-3681-20 (NJ Superior Court, Bergen County) (transcript released 8/28/2020).  Our real-time tracking of judicial decisions will be released soon.