Joanna Fantozzi | Apr 20, 2020
A wave of lawsuits seeking class-action status argue restaurants have been unfairly denied business interruption insurance claims
Another five lawsuits seeking class-action status have been filed by restaurants and hospitality groups against the insurance companies that are denying business interruption insurance claims in response to COVID-19-related restaurant closures.
The initial named plaintiffs in these cases include Gio Pizzeria and Bar Hospitality (owner of Nick’s New Haven Style Pizzeria & Bar in Cold Springs and Boca Raton, Fla.); Caribe Restaurant and Nightclub Inc. (owner of La Luz Ultralounge in Bonita, Calif.); Rising Dough Inc. (owner of Madison Sourdough bakery in Madison, Wis.) and Will McCoy’s (owner of seven prohibition-themed taverns in the Twin Cities area, Minn.); Troy Stacy Enterprises (owner of Craft & Vinyl in Columbus, Ohio), and Dakota Ventures LLC (owner of Kokopelli Grill in Port Angeles, Wash.)
These lawsuits, which were filed Friday, are the latest in a string of similar cases filed by foodservice businesses that have been denied business interruption insurance coverage, including that of chef Thomas Keller, who sued his insurance company for declaratory judgments on behalf of business interruption insurance claims. The wave of lawsuits filed last week allege that the restaurants’ insurance companies are compelled to follow through in paying these claims because they either do not have virus exclusions in their contracts or because the case for the virus exclusion is not strong enough.
In response to the growing number of lawsuits, insurance providers have made the argument that COVID-19 is an exception, and that business interruption insurance was never meant to cover a universal catastrophe such as this pandemic, insurance groups wrote in a letter to members of Congress.
But attorneys for the restaurant operators contend that the businesses will not survive if insurance companies do not honor their policies.
“All of these companies paid a lot of money in monthly premiums for years for coverage with this very type of situation only to be told now when the rainy day actually comes that their insurance company is turning their backs on them,” said Adam Levitt, attorney at DiCello Levitt Gutzler LLC, one of several law firms representing the companies in these five cases. “If these insurers won’t honor their own policies, lots of businesses will be unable to survive. As we see it, these lawsuits represent these restaurants’ only means of compelling insurance companies to fulfill promises that they made to our clients and to thousands of other U.S. businesses.”
For example, in one of the lawsuits, Gio Pizzeria and Bar Hospitality alleges that their insurance company, Certain Underwriters at Lloyd’s of London, agreed to “pay for direct physical loss unless the loss is excluded or limited in the policies, and that viruses were not listed in the policy exclusions.
In another of the lawsuits, Caribe Restaurant and Nightclub’s insurance company, Topa Insurance Company, does have a virus exclusion, but the lawsuit alleges it only covers international acts of “nuclear, biological, bio-chemical, chemical or radioactive agent, substance, material, device or weapon.” The spread of a virus like COVID-19 would not be an intentional act or weapon, and therefore the insurance company’s claim of an exception is not legally applicable.
“Insurance companies are theoretically all about the evaluation and management of risk, so they charge businesses for their policies based on perceived risk,” Levitt said. “For an insurance company to now walk away from its obligations that it prospectively evaluated is wrong.”