PHILADELPHIA — Minor league baseball teams on July 2 filed a notice of voluntary dismissal without prejudice of their breach of contract and declaratory relief lawsuit seeking business interruption coverage for their “catastrophic financial losses” stemming from the “first-ever cessation of Minor League Baseball” due to the novel coronavirus pandemic and Major League Baseball’s decision that its teams will not satisfy their contractual duties to provide players under contract to their affiliated teams in the Minor League (Chattanooga Professional Baseball LLC, et al. v. Philadelphia Indemnity Insurance Co., et al., No. 20-03032, E.D. Pa.).
CHICAGO — An Illinois appeals panel on June 30 held that a complaint by Cook County, Ill., against its insurance broker was not time-barred and that a lower court did not err in denying the broker’s motion for judgment notwithstanding the verdict on a jury's findings on both breach of contract and setoff, further rejecting the county’s request for an additur on special damages and affirming the lower court’s ruling in favor of the broker on the county’s breach of fiduciary duty claim (County of Cook v. USI Insurance Services Corp of Illinois, Inc., No. 18-1889, Ill. App, 1st Dist., 3rd Div., 2020 Ill. App. Unpub. LEXIS 1169).
BAY CITY, Mich. — A chiropractor insured filed a class action complaint in a Michigan federal court challenging insurers’ “systematic and uniform refusal to pay insureds” for their losses arising from Michigan’s March 24 executive order and related actions that suspended business operations in the wake of the novel coronavirus pandemic (Turek Enterprises, Inc. v. State Farm Mutual Automobile Insurance Company, et al., No. 20-11655, E.D. Mich.).
From minor league baseball teams’ federal complaint to an insurer’s motion to dismiss, Mealey Publications takes a look at the latest pleadings relating to business interruption coverage for COVID-19.
CAMDEN, N.J. — A federal judge in New Jersey on June 24 denied an insurer’s motion to dismiss an insured’s claims for common-law fraud and violation of the New Jersey Consumer Fraud Act (NJFCA), also denying the insured’s motion to amend his complaint to add a claim under the New Jersey’s Commercial Insurance Deregulation Act (Ira Trocki, et al. v. Penn National Mutual Casualty Insurance Company, Inc., No. 19-13638, D. N.J., 2020 U.S. Dist. LEXIS 111150).
VICTORIA, Texas — A federal judge in Texas on June 25 held that a professional services policy exclusion does not bar coverage for two underlying lawsuits brought against a funeral home insured because the “snafu” that resulted in the insured’s mix-up or corpses was clerical or administrative and not a result of professional services (Ohio Security Insurance Company, et al. v. Grace Funeral Home, Inc., No. 19-0041, S.D. Texas, 2020 U.S. Dist. LEXIS 113222).
BOSTON — An operator of day care centers sued its commercial property insurance provider in Massachusetts federal court on June 29, alleging that the insurer breached its contract with the insured and acted in bad faith in failing to provide business interruption coverage after the day care centers were forced to limit their business operations to families of first responders in response to the commonwealth’s implementation of a stay-at-home order in the wake of the novel coronavirus pandemic (Pakachoag Acres Day Care Center Inc. v. Philadelphia Indemnity Insurance Co., No. 20-40083, D. Mass.).
PHILADLEPHIA — Philadelphia restaurants on June 19 sued their insurers for breach of contract and bad faith in a Pennsylvania court, contending that they “have had to incur expenses in cleaning up the pollution and contamination caused by the novel coronavirus and this clean-up continues to the present and likely will continue into the foreseeable future” (The Marathon Grill Inc., et al. v. State Automobile Mutual Insurance Co., et al., No. 200600918, Pa. Comm. Pls., Philadelphia Co.).
WINSTON-SALEM, N.C. — A federal judge in California on June 24 issued two separate rulings granting business liability insurers’ motions for judgment on the pleadings in their lawsuits disputing coverage for underlying claims that their insureds violated the Driver's Privacy Protection Act (DPPA), finding that two policy exclusions “unambiguously bar coverage” (Sentinel Insurance Company Ltd., et al. v. James S. Farrin P.C., et al., No. 17-211, 2020 U.S. Dist. LEXIS 111919; Sentinel Insurance Company Ltd.. v. George Salama D.C., et al., No. 17-328, M.D. N.C., 2020 U.S. Dist. LEXIS 111918).
WILMINGTON, Del. — After finding that Delaware law governs directors and officers liability insurance policies, a federal judge in Delaware on June 25 stayed a coverage dispute pending the Delaware Supreme Court’s ruling in In re Solera Coverage Appeals (Calamos Asset Management, Inc. v. Travelers Casualty and Surety Company of America, No. 18-1510, D. Del., 2020 U.S. Dist. LEXIS 111895).
WASHINGTON, D.C. —The U.S. Judicial Panel on Multidistrict Litigation on June 26 issued an order indicating that it will hear oral arguments on July 30 to determine whether the U.S. District Court for the Eastern District of Pennsylvania or the Northern District of Illinois is the better forum to transfer lawsuits seeking business interruption coverage for losses arising from governmental closure orders prompted by the coronavirus pandemic (In re: COVID-19 Business Interruption Insurance Coverage Litigation, No. 2942, JPMDL).
HARRISBURG, Pa. — A self-proclaimed “mom and pop” South Carolina restaurant owner on June 25 moved a Pennsylvania federal court to stay its class action breach of contract, bad faith and unjust enrichment complaint against its all-risk commercial insurer for “swiftly” denying its claim for coverage for its closure due to the COVID-19 pandemic, arguing that the insurer will suffer no prejudice if the lawsuit is stayed pending the U.S. Judicial Panel on Multidistrict Litigation’s resolution of two motions to transfer “this and nearly 200 other related cases in 38 federal districts” “for centralized pretrial proceedings” (Richard Kahn, et al. v. Pennsylvania National Mutual Casualty Insurance Company, No. 20-00781, M.D. Pa.).
ATLANTA — A majority of a Georgia appeals court on June 24 held that an insured’s acts that caused underlying injuries were criminal in nature and, as a result, do not trigger coverage under a homeowners insurance policy, affirming a lower court’s grant of summary judgment in favor of the insurer (Marcus, et al. v. Country Mutual Insurance Co., No. A20A0391, Ga. App., 3rd Div., 2020 Ga. App. LEXIS 383).
CINCINNATI — An Ohio appeals court on June 24 reversed and remanded a lower court’s summary judgment ruling in favor of a commercial general liability insurer, finding that some of the underlying losses claimed by governmental entities against a pharmaceutical distributor insured arising from the opioid epidemic are arguably “because of” bodily injury to trigger coverage under the policy (Acuity v. Masters Pharmaceutical, Inc., No. C-190176, Ohio App., 1st Dist., 2020 Ohio App. LEXaIS 2381).
NEW YORK — A New York federal judge on June 23 denied a motion for reconsideration in a suit seeking coverage for underlying suits arising out of an oil refinery because questions of fact exist regarding the insured’s notice and regarding the applicability of the professional services provision (James River Insurance Co., et al. v. Indian Harbor Insurance Co., No.18-767, S.D. N.Y., 2020 U.S. Dist. LEXIS 109635).
NEW ORLEANS — The Louisiana Supreme Court on June 22 granted a malpractice insurer and its attorney insured’s writ application seeking review of an appeals court’s ruling that held that collectability on an underlying personal injury claim stemming from a car accident does not affect the recovery in a legal malpractice claim against the attorney insured who represented the underlying claimant (Elaine Ewing v. Westport Insurance Corporation, et al., No. 2020-C-00339, La. Sup.).
WAUKESHA, Wis. — A commercial general liability insurer recently asked a Wisconsin appeals court to find that a lower court’s final judgment order in a coverage dispute over underlying claims against a medical company insured “wrongly went too far” by imposing on it a duty to indemnify and violated the “law of the case” doctrine (West Bend Mutual Insurance Company v. Ixthus Medical Supply Inc., et al., No. 2020AP237, Wis. App., Dist. 2).
PHILADELPHIA — Minor league baseball teams on June 23 sued their insurers for breach of contract, anticipatory breach of contract and declaratory relief, seeking business interruption coverage for their “catastrophic financial losses” stemming from the “first-ever cessation of Minor League Baseball” due to the novel coronavirus pandemic and Major League Baseball’s decision that its teams will not satisfy their contractual duties to provide players under contract to their affiliated teams in the Minor League (Chattanooga Professional Baseball LLC, et al. v. Philadelphia Indemnity Insurance Co., et al., No. 20-03032, E.D. Pa.).
PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on June 22 affirmed a lower federal court’s ruling in favor of a commercial general liability insurer in a lawsuit filed by a private label manufacturer for Wal-Mart Inc. seeking coverage for an underlying trademark infringement action brought against the retailer (Hybrid Promotions LLC v. Federal Insurance Co., No. 18-56658, 9th Cir.).
SAN FRANCISCO — An insured recently asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court’s ruling that its insurer has no duty to defend it against an underlying trademark dispute (Premier Pools Management Corp. v. Colony Insurance Corp., No. 18-16551, 9th Cir.).