September 25, 2020

Volume X, Number 269

September 25, 2020

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September 23, 2020

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Missouri Court Denies Insurer Motion to Dismiss, Finding Insured Plausibly Pled COVID-19 Claims Within Terms of Commercial Property Policy

On August 12, 2020, a Missouri District Court denied an insurance carrier’s motion to dismiss and rejected its arguments that COVID-19 is not covered under an “all-risk” property insurance policy without a virus exclusion. Although a ruling on the merits of the case has not been issued, in Studio 417, Inc., et al. v. The Cincinnati Insurance Company, Case No. 20-cv-03127-SRB, District Court Judge Stephen R. Bough ruled in favor of defendant restaurants and hair salons in Missouri. The “all-risk” policies at issue did not define “physical loss” or “physical damage” and did not include any exclusion for losses caused by viruses or communicable diseases. 

The plaintiffs sought Business Income, Civil Authority, Ingress and Egress, Dependent Property, and Sue and Labor coverages under their respective policies for losses caused by the COVID-19 pandemic, alleging that:

  • Over the past several months, it was likely that customers, employees and/or other visitors to the insured properties were infected with COVID-19 and thereby infected the insured properties with the virus.

  • COVID-19 “is a physical substance,” that it “live[s] on” and is “active on inert physical surfaces,” and is “emitted into the air.”

  • The presence of COVID-19 “renders physical property in their vicinity unsafe and unusable,” and that they “were forced to suspend or reduce business at their covered premises.”

  • Lastly, the presence of COVID-19 and the Closure Orders caused a direct physical loss or direct physical damage to their premises “by denying use of and damaging the covered property, and by causing a necessary suspension of operations during a period of restoration.” 

The Ruling

In his ruling denying the insurer’s motion to dismiss, Judge Bough first held that plaintiffs adequately alleged a direct “physical loss” under the policies because relying on the plain meaning of physical loss, plaintiffs alleged a causal relationship between COVID-19 and their alleged losses. Judge Bough agreed with the plaintiffs’ allegations in the complaint that COVID-19 “is a physical substance,” that it “live[s] on” and is “active on inert physical surfaces,” is also “emitted into the air” and had attached to and damaged plaintiffs’ property in a manner that left it unsafe. Based on these allegations, the court held that the plaintiffs plausibly alleged a “direct physical loss” (Business Income coverage) based on “the plain and ordinary meaning of the phrase” sufficient to withstand the insurer’s Rule 12(b)(6) motion to dismiss. 

Next, Judge Bough ruled that plaintiffs plausibly stated a claim for Civil Authority coverage because they adequately alleged that access to their businesses was prohibited pursuant to the Closure Orders. Judge Bough also held that the plaintiffs plausibly stated a claim for Ingress and Egress coverage because plaintiffs alleged that both COVID-19 and the Closure Orders rendered the premises unsafe for ingress and egress. 

Further, Judge Bough held that the plaintiffs plausibly stated a claim for Dependent Property coverage because they adequately alleged that they suffered a loss of materials and services and lack of customers as a result of COVID-19 and the Closure Orders. 

Lastly, the court held that the plaintiffs adequately stated a claim for Sue and Labor coverage in reference to their compliance with the Closure Orders and suspension of operations in that they “incurred expenses in connection with reasonable steps to protect Covered Property.” 

Based on his analysis, Judge Bough will allow the suit to proceed to discovery. 

Read the Order 

For a Michigan ruling on this topic, see our July 23, 2020, article. 

For a Washington, D.C. ruling on this topic, see our August 14, 2020, article.

© 2020 Wilson ElserNational Law Review, Volume X, Number 227

TRENDING LEGAL ANALYSIS


About this Author

Siobhán A. Breen Associate New York Directors & Officers Liability Insurance & Reinsurance Coverage
Associate

Siobhán A. Breen represents primary and excess professional liability insurers and drafts coverage opinions with respect to complex insurance coverage matters involving directors and officers liability, errors and omissions liability, miscellaneous professional liability, lawyers professional liability, and employment practices liability.

Prior to joining Wilson Elser, Siobhán’s practice consisted of insurance coverage and insurance defense litigation. Siobhán has experience in securities class actions, shareholder derivative actions, cyber/privacy actions, and professional...

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Paul S. White Partner Insurer Litigation: Coverage/Extra-Contractual Insurance & Reinsurance Coverage Professional Liability & Services

Paul White focuses his practice on complex insurance coverage and bad faith litigation and represents defendants in commercial litigation. Paul's insurance coverage practice includes advising and representing insurers in bad faith litigation and insurance policy disputes, including first-party property policies, general liability coverage, errors and omissions insurance, and media liability insurance. He also advises and represents insurers in subrogation actions on property losses. In addition, Paul has litigated and arbitrated disputes throughout the United States involving domestic and foreign insurance agents and brokers in all lines of coverage. He has broad experience in the business practices of all types of insurance intermediaries, including brokers at every level in the broking process, from producers to managing general agents to London Market brokers.

In his litigation practice, Paul focuses on commercial business litigation, including professional liability actions brought against insurance agents and brokers. In addition to his insurance practice, Paul advises entertainment and technology companies on the management of intellectual property risks.

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