NEW ORLEANS — A federal judge on Dec. 3 denied property owners’ motion to reconsider an earlier ruling that granted an excess insurer’s motion for partial summary judgment in its breach of contract lawsuit arising from sinkhole damage and granted the insurer’s motion to enter a final judgment (Liberty Insurance Underwriters, Inc. v. Gustave J. Labarre, Jr., et al., No. 18-8612, E.D. La.).
PRESCOTT, Ariz. — Finding that COVID-19 does not fall under a premises pollution liability insurance policy’s definition of “pollution condition,” a federal judge in Arizona on Dec. 4 granted an insurer’s motion to dismiss with prejudice a destination resort insured’s breach of contract lawsuit seeking coverage for its business loss in connection with the novel coronavirus pandemic and subsequent government response (London Bridge Resort LLC v. Illinois Union Insurance Company, Inc., No. 20-08109, D. Ariz.).
KANSAS CITY, Kan.— A federal judge in Kansas on Dec. 3 granted a property insurer’s motion to dismiss with prejudice a wholesale apparel distributor insured’s putative class action seeking coverage for its losses arising from the novel coronavirus and subsequent stay-at-home orders, finding that the insured fails to allege any direct physical loss or damage or that the orders prohibited access to its property (Promotional Headwear International v. The Cincinnati Insurance Company, No. 20-cv-2211-JAR-GEB, D. Kan.).
MIAMI — A federal magistrate judge in Florida on Nov. 16 issued a report recommending granting a write-your-own insurer’s motion for summary judgment in its insureds’ breach of contract lawsuit arising from the Hurricane Irma flood damage, finding that the insureds failed to “strictly adhere” to the Standard Flood Insurance Policy’s (SFIP) proof-of-loss requirement and that their state law claims are preempted and also barred by the applicable statutes of limitations (Andrew Shabshelowitz, et al. v. Old Dominion Insurance Company, et al., No. 18-10202, S.D. Fla., 2020 U.S. Dist. LEXIS 215561).
LOS ANGELES — An insurer on Nov. 5 asked a California federal court to reopen its lawsuit seeking a declaration that it has no duty under two business owners insurance policies to cover its insured’s claimed business income losses related to the novel coronavirus, arguing that although the court determined in dismissing the insured’s counterclaims that it has no duty to provide coverage for the insured’s alleged losses in connection with its Los Angeles office, the court has not yet resolved the same question regarding the insured’s alleged losses to its New York office (Travelers Casualty Insurance Company of America v. Geragos & Geragos, Nos. 20-3619, C.D. Calif.).
WINCHESTER, Tenn. — A federal magistrate judge in Tennessee on Nov. 30 denied a homeowners insurer’s motion to dismiss insureds’ breach of contract and bad faith claims in a lawsuit arising from their tornado property damage, finding that the insureds have satisfied the pleading requirement under Federal Rule of Civil Procedure 12(b)(6) (Rodney Hill, et al. v. Auto-Owners [Mutual] Insurance Company, No. 19-78, E.D. Tenn., 2020 U.S. Dist. LEXIS 223142).
BALTIMORE — A federal judge in Maryland on Dec. 1 denied an insured hotel’s motion for reconsideration after determining that the insured failed to present any new evidence concerning its claim for water damage caused by a windstorm and said that the insurer is entitled to summary judgment because the insured conceded that the covered damages do not exceed the policy’s deductible (Bethany Boardwalk Group LLC v. Everest Security Insurance Company, No. 18-3918, D. Md., 2020 U.S. Dist. LEXIS 225178).
HOUSTON — A Texas appellate panel on Nov. 17 affirmed a state trial court’s take-nothing ruling in an insurance breach of contract and bad faith lawsuit stemming from an insurer’s denial of damages to its insured’s property resulting from Hurricane Harvey, ruling that the trial court’s conclusions of law do not present any reversible error (Maria Reyes v. Southern Vanguard Insurance Co., No. 14-19-00728, Texas App., 14th Dist., 2020 Tex. App. LEXIS 9160).
PITTSBURGH — A Pennsylvania judge on Nov. 20 held that she did not abuse her discretion when she granted an insured’s motion to coordinate four novel coronavirus coverage lawsuits against Erie Insurance Exchange in the Allegheny County Court of Common Pleas, finding that granting the motion was appropriate under Pennsylvania Rule of Civil Procedure 213.1(c) (Joseph Tambellini, Inc. v. Erie Insurance Exchange, Nos. GD-20-005137, GD-20-006901, Pa. Comm. Pls., Allegheny Co.).
TRENTON, N.J. — A trial court did not err in finding that a commercial property insurer owed coverage for the partial collapse of an insured’s roof following Superstorm Sandy because the damage was abrupt as the roof damage did not exist before Superstorm Sandy, the New Jersey Superior Court Appellate Division said Nov. 19 (Parko Properties LLC v. Mercer Insurance Company of New Jersey, No. A-4137-17T2, N.J. Super., App. Div., 2020 N.J. Super. Unpub. LEXIS 2268).
MIAMI — A Florida federal magistrate judge on Nov. 17 recommended granting a commercial property insurer’s motion to dismiss an insured’s amended complaint seeking coverage for business losses sustained in the wake of the novel coronavirus pandemic because the insured failed to prove that its restaurants sustained any direct physical loss as a result of shutdown orders issued by Florida’s governor (Graspa Consulting Inc. v. United National Insurance Co., No. 20-23245, S.D. Fla., 2020 U.S. Dist. LEXIS 215976).
By Lawrence J. Bracken II, Michael S. Levine and Jason M. Beach
NEW ORLEANS — A Louisiana judge on Nov. 4 denied an “all risk” insurer’s motion for summary judgment in a coronavirus coverage lawsuit brought by its French Quarter restaurant insured, finding that there is a genuine issue of material fact as to whether the policy interests compel a “more liberal” interpretation of “direct physical loss or damage” and as to whether the suspension of the insured’s operations was caused by physical loss or property damage (Cajun Conti LLC, et al. v. Certain Underwriters at Lloyd’s London, et al., No. 20-02558, La. Civ. Dist., Orleans Parish).
PHOENIX — An insured’s suit against its businessowners insurer cannot proceed because no coverage is afforded for losses sustained as a result of shutdown orders issued as a result of the novel coronavirus, an Arizona federal judge said Nov. 20 in determining that the policy’s virus exclusion clearly precludes coverage for the losses (Border Chicken AZ LLC v. Nationwide Mutual Insurance Co., et al., No. 20-785, D. Ariz., 2020 U.S. Dist. LEXIS 217649).
SAN ANTONIO — A Texas federal judge on Oct. 26 dismissed an insured’s breach of contract and bad faith suit seeking business interruption coverage stemming from local- and state-mandated stay-at-home orders issued to prevent the spread of the novel coronavirus after determining that the policy’s virus or bacteria exclusion clearly excludes coverage (Vizza Wash LP v. Nationwide Mutual Insurance Co., et al., No. 20-680, W.D. Texas, 2020 U.S. Dist. LEXIS 211737).
SEATTLE — Insureds recently asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court’s ruling that compelled arbitration of an insurance coverage dispute against English underwriters over $5.66 million in hurricane damage, arguing that Washington law through the operation of the McCarran-Ferguson Act reverse preempts the Convention on the Recognition of Foreign Arbitral Awards and its enabling legislation and bars the enforcement of mandatory arbitration clauses in foreign insurance policies (CLMS Management Services Ltd. Partnership, et al. v. AmWins Brokerage of Georgia LLC, et al., 20-35428, 9th Cir.).
ST. CROIX, Virgin Islands — A federal judge in the U.S. Virgin Islands on Nov. 13 denied a motion to dismiss an insured’s suit alleging claims for breach of contract and bad faith and arising out of property damages sustained by Hurricane Maria after determining that the insured’s untimely service of process on the insurer should be excused because the insured cannot refile the suit based on the policy’s two-year limitations provision (Youth With A Mission v. Those Certain Underwriters at Lloyds of London, et al., No. 19-46, D. Virgin Islands, 2020 U.S. Dist. LEXIS 213129).
PHOENIX — A federal judge in Arizona on Nov. 13 granted insurers’ motion to dismiss a breach of contract and declaratory judgment lawsuit brought by 24 plaintiffs associated with or providing services for 19 Minor League Baseball (MiLB) teams, finding that absent the novel coronavirus pandemic, there is no allegation that the government would have been prompted to issue the stay-at-home orders or otherwise inhibit access to the plaintiffs’ ballparks (Chattanooga Professional Baseball LLC, et al. v. National Casualty Company, et al., No. 20-01312, D. Ariz., 2020 U.S. Dist. LEXIS 212349).
CHARLESTON, W.Va. — The West Virginia Supreme Court of Appeals on Nov. 12 held that a commercial general liability insurance policy’s exclusion for “water that backs up or overflows from a sewer, drain or sump” bars coverage for an insured’s loss, reversing a lower court’s ruling in favor of the insured and entering judgment in favor of the insurer (Motorists Mutual v. Jacob and Lisa Zukoff, et al., No. 19-0711, W.Va. Sup.).
OKLAHOMA CITY — No coverage is afforded to an insured for business losses sustained as a result of state government-ordered business closures to prevent the spread of the novel coronavirus because the commercial lines policy’s virus or bacteria exclusion clearly precludes coverage for the virus and because the insured failed to show that it sustained a direct physical loss, an Oklahoma federal judge said Nov. 9 in granted the insurer’s motion to dismiss (Goodwill Industries of Central Oklahoma Inc., et al. v. Philadelphia Indemnity Insurance Co., No. 20-511, W.D. Okla., 2020 U.S. Dist. LEXIS 210408).