Category: Analytics

Author: Sean Bender Date: 03.08.21

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:

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.

Author: Tom Baker Date: 02.04.21

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.

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.

Author: Tom Baker Date: 12.02.20

For some time now I’ve been concerned that our case count is misleading, because our team reports that many cases have been dropped voluntarily, and a not insignificant number have been dismissed, either on the merits or for a technical reason.   Here’s a snapshot, as of today, of what we’re seeing in terminations:

Apologies for the small size (we’re working on adding this in dynamic form to the CCLT website), but what the snapshot shows is that 137 cases have been voluntarily dropped, most often before a response to a motion to dismiss is due, 45 case have been dismissed with prejudice, and 31 cases have been dismissed without prejudice.  My impression (not thoroughly checked) is that all of the dropped cases are business interruption cases.  That means that more than 15% of the business interruption cases in our database no longer are active.

Author: Tom Baker Date: 10.23.20

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.