Gavin Souter | April 20, 2020

A group of law firms together filed six class-action lawsuits against insurers in federal courts from California to New York on Friday on behalf of commercial policyholders seeking business interruption coverage for coronavirus-related losses.

None of the policies contain a communicable disease exclusion, the suits allege.

In addition, another law firm filed two coronavirus-related class action lawsuits in a Pennsylvania state court on Friday.

The latest filings add to a growing tally of policyholder lawsuits against insurers seeking declaratory rulings that their policies cover income lost due to government-mandated business closures that began in March as various state and federal authorities sought to stem the spread of COVID-19.

Common themes in the dozens of suits include assertions that the presence of the coronavirus in or around a property constitutes physical damage under the terms of the policies and coverage is also triggered by the civil authority clauses in business interruption policies.

Insurer groups have generally held that coronavirus does not constitute physical damage and, therefore, coverage is not triggered.

In the latest batch of federal lawsuits seeking class-action status, policyholders represented by law firms DiCello Levitt Gutzler LLC in Chicago, The Lanier Law Firm PC in Houston, Burns Bowen Bair LLP in Madison, Wisconsin, and Daniels & Tredennick in Houston represent a variety of businesses including restaurants, a bakery, a bridalwear company and a dentist, in a variety of states. All of the law firms are listed as co-counsel on each of the suits.

The suits make similar allegations and hold that none of the policies have “any exclusion for losses caused by viruses or communicable diseases.”

The Insurance Services Office Inc. communicable disease exclusion was introduced about 15 years ago and is widely used.

The suits are: Gio Pizzeria & Bar Hospitality LLC and Gio Pizzeria Boca LLC v. Certain Underwriters at Lloyd’s, London in U.S. District Court for the Southern District of New York; Rising Dough Inc., et al. v. Society Insurance in U.S. District Court for the Eastern District of Wisconsin; Bridal Expressions LLC v. Owners Insurance Co. in U.S. District Court for the Northern District of Ohio; Caribe Restaurant & Nightclub Inc. v. Topa Insurance Co. in U.S. District Court for the Central District of California; Dakota Ventures, LLC d/b/a/Kokopelli Grill v. Oregon Mutual Insurance Co. in U.S. District Court for the District of Oregon; and Christie Jo Berkseth-Rojas DDS v. Aspen American Insurance Co. in U.S. District Court for the Northern District of Texas.

Aspen declined to comment; Society Insurance and Lloyd’s of London have previously said they don’t comment on litigation; Owners Insurance, Topa Insurance and Oregon Mutual did not immediately respond to a request for comment.

Meanwhile, also on Friday, a group of Pennsylvania personal injury lawyers filed two lawsuits seeking class-action status against Erie Insurance Group in state court in Pittsburgh. The two suits, Joseph Tambellini Inc. v Erie Insurance Exchange and HTR Restaurants Inc. d/b/a Siebs Pub v. Erie Insurance Exchange, assert that the all risks policies issued don’t exclude coronavirus-related losses.

Erie declined to comment.

The suits filed Friday follow a wave of coronavirus litigation by restaurants and other small businesses, a law firm in Los Angeles and various Chicago taverns.

Other suits filed this month include: one filed by various units of footwear company Marc Fisher Footwear Corp. in Moda LLC v. Hartford Fire Insurance Co. in state court in Santa Barbara, California, last week; a Tuscaloosa, Alabama, children’s shoe store in Wagner Shoes LLC v. Auto-Owners Insurance Co. filed in U.S. District Court for the Northern District of Alabama; a Redbank, New Jersey-based restaurant in Grand Cru LLC d/b/a Restaurant Nicholas v. Liberty Mutual Insurance Co. filed in state court in Freehold, New Jersey; a San Francisco-based restaurant in John’s Grill Inc. v. The Hartford Financial Services Group Inc. filed in state court in San Francisco; a Cleveland-based ice cream producer in Mitchell Brothers Ice Cream Inc. v. The Cincinnati Insurance Co.; a Cleveland-based restaurant group in Millennia Hospitality Group LLC v. The Cincinnati Insurance Co.; a Moreland Hills, Ohio-based clothing firm in Somco LLC v. Lightning Rod Mutual Insurance Co. The Ohio suits were filed in state court in Cleveland.

Mike Curley | April 17, 2020

Law360 (April 17, 2020, 7:52 PM EDT) — A group of attorneys from DiCello Levitt Gutzler LLC, the Lanier Law Firm PC, Burns Bowen Bair LLP and Daniels & Tredennick launched class action suits against six insurance companies in federal courts on Friday over their denials of coverage for businesses shut down because of the COVID-19 outbreak.

The complaints target Certain Underwriters at Lloyd’s, London in New York, Society Insurance in Wisconsin, Auto-Owners Insurance Co. in Ohio, Topa Insurance Co. in California, Oregon Mutual Insurance Co. in Oregon, and Aspen American Insurance Co. in Texas, the attorneys announced in a press release Friday.

In each case, the businesses, which include bakeries, taverns, restaurants, nightclubs and bridal retailers, allege they paid premiums to the insurance companies for business interruption insurance for situations in which they could be forced to close through no fault of their own, but their claims have been denied.

“Businesses buy these policies and pay high premiums for these policies, for specifically this precise situation,” Adam Levitt of DiCello Levitt Gutzler LLC told Law360 on Friday. “It is unfortunate that after these policyholders have held up their end of their bargain with their insurers, that their insurers are unwilling to do the same.”

He added that the firms have been speaking to hundreds, if not thousands, of businesses that have been denied coverage, and Friday’s complaints are the first of what will become a series of actions to be filed in the coming weeks.

“We are looking into the claims of businesses of all sizes, each of which has had the uniform experience of getting their claims wrongfully rejected by their respective insurance companies,” Levitt said.

He added that he believes the courts will be able to certify the classes, because the companies experienced “uniform” courses of conduct by the insurance companies, under what he called “materially uniform” provisions in their policies.

While the complaints filed Friday are not the first class actions against insurers during the COVID-19 pandemic, Levitt said these cases are the “state of the art” claims in this issue.

In the complaints, the companies say their policies are “all risk” — policies that entitle them to coverage unless the policies specifically exclude the situation. They also cite “civil authority” clauses that provide coverage when their properties are made inaccessible because of orders from the government.

“Insurers will deny almost every claim — even the most legitimate ones — because that’s just how they operate,” Mark Lanier of the Lanier Law Firm said in a press release Friday. “But at the end of the day, this really is a straightforward issue about honoring their agreements. As our nation emerges from this horrific pandemic, businesses of all sizes will be critical to restarting the economy. In playing their usual claim-denial games, these insurers are threatening the welfare of not only small-business owners and their families but the entire U.S. economy.”

A spokesperson for Auto-Owners said they will address each claim and appropriately respond to the parties involved.

Spokespersons for Society Insurance and Aspen American declined to comment.

Representatives for the other insurance companies could not immediately be reached for comment Friday.

The class action complaints follow a slew of individual complaints against insurance companies, including Society and Lloyd’s, alleging businesses were wrongfully denied coverage of business interruptions because of government-mandated shutdowns during the pandemic.

The other suits include claims by a Chicago restaurant, a group of Chicago movie theater and restaurant owners, a D.C. restaurant, an Illinois dental clinic, a nonprofit professional theater in Indiana, a Florida sports bar, a scuba shop in the Florida Keys and a group of Texas movie theaters.

In addition, some states have introduced legislation to make the business interruption policies retroactively cover the COVID-19 outbreak, though attorneys representing insurers have told Law360 that such measures may be unconstitutional in restricting their freedom to contract.

The plaintiffs are represented by Adam Levitt, Mark DiCello and Ken Abbarno of DiCello Levitt Gutzler LLC, Mark Lanier and Alex Brown of the Lanier Law Firm PC, Timothy Burns, Jeff Bowen, Freya Bowen and Jesse Bair of Burns Bowen Bair LLP and Douglas Daniels of Daniels & Tredennick, as well as local counsel.

The cases are Gio Pizzeria & Bar Hospitality LLC et al. v. Certain Underwriters at Lloyd’s, London, case number 1:20-cv-03107, in the U.S. District Court for the Southern District of New York; Rising Dough Inc. et al. v. Society Insurance, case number 2:20-cv-00623, in the U.S. District Court for the Eastern District of Wisconsin; Bridal Expressions LLC v. Owners Insurance Co., case number 1:20-cv-00833, in the U.S. District Court for the Northern District of Ohio; Caribe Restaurant & Nightclub Inc. v. Topa Insurance Company, case number 2:20-cv-03570, in the U.S. District Court for the Central District of California; Dakota Ventures LLC v. Oregon Mutual Insurance Co., case number 3:20-cv-00630, in the U.S. District Court for the District of Oregon; and Christie Jo Berkseth-Rojas DDS v. Aspen American Insurance Co., case number 3:20-cv-00948, in the U.S. District Court for the Northern District of Texas.

–Additional reporting by Jeff Sistrunk. Editing by Janice Carter Brown.


Update: This story has been updated with case information for the Dakota Ventures complaint, and the responses from Society Insurance, Aspen American and Auto-Owners to a request for comment.