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 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
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 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
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.

Categories
Beyond the U.S. Business Income Cases

Causal requirements and “non-damage” policy wordings in the FCA test case

Author: Jordan Einstein Date: 07.30.20

Causal requirements and “non-damage” policy wordings in the FCA test case

Reading the Particulars of Claim and transcripts from the FCA test case proceeding in the UK, I learned about another important difference between the test case and the US cases. The scope of the test case is limited to non-damage policy wordings. That means the court in that case will not address potential interpretations of “physical loss of or damage to property” and similar wordings that insurers rely heavily on in the US cases.

For example, in Gavrilides Management Company et al. vs. Michigan Insurance Co., the presumptive first Covid-19 insurance coverage case decided in the US, Judge Joyce Draganchuk granted the defendant insurance company’s Motion for Summary Disposition. Judge Draganchuk granted the motion on the procedural grounds that the plaintiff failed to allege any “physical loss of or damage to” property, not on the merits of the argument that there was “physical loss of or damage to property.” Nevertheless, she made her views of the merits of that argument plain. Watching the video of the argument on YouTube, I heard her say (as the transcript confirms), “The plaintiff just can’t avoid the requirement that there has to be something that physically alters the integrity of the property. There has to be some tangible, i.e., physical damage to the property.” I heard that as suggesting that she didn’t think restaurants could make that showing. Judge Draganchuk was unimpressed with the argument that “the physical requirement is met because people were physically restricted from dine-in services,” calling it “nonsense.”

Because the plaintiff didn’t allege physical loss or damage, Gavrilides doesn’t tell us much about how other cases or judges will come out. Our reading of the motions to dismiss and other documents filed in other cases shows that there are many different arguments (and defenses) courts have yet to hear. Moreover, case law interpreting the “physical loss” and/or “physical damage” requirements is still relatively undeveloped in the US, and some lawyers claim that it differs between states. Such causal requirements are likely to be the center of gravity in many cases in the US, but the UK test case won’t provide much, if any, guidance on that issue.