October 21, 2020

Volume X, Number 295

October 21, 2020

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October 19, 2020

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Policyholders Pump Out Another COVID-19 Litigation Victory

A Pennsylvania trial court denied an insurer’s early attempt to lunge out of coverage for COVID-19 business interruption losses suffered by a fitness center, stating it would be premature for the court to resolve factual determinations the insurer raised in its demurrer. Ridley Park Fitness, LLC v. Philadelphia Indemnity Insurance Co., No. 200501093 (Pa. Ct. Com. Pl. Aug. 13, 2020).

The insured, Ridley Park Fitness, alleged that the nature of its business, where “people–staff, customers, family of customers [sic], community members, and others–constantly cycle in and out of the building,” made the risk of COVID-19 contamination “ever-present.” (Complaint, ¶ 56.) Orders issued by Pennsylvania Governor Tom Wolf also hampered its operations, and Ridley Park cited these orders as evidence of “an awareness on the part of both state and local governments that COVID-19 causes damage to property.” (Id., ¶ 49.) Ridley Park skirted the policy’s ISO virus exclusion by citing the orders as an alternate theory of loss and suggesting that the exclusion was subject to regulatory estoppel based on ISO’s misleading and fraudulent statements to state insurance departments about the exclusion. (Id., ¶¶ 19-22, 25, 31, 34, 60, 64.)

Finally, although the federal government has not responded to the pandemic with its own closure orders of non-essential businesses like gyms, Ridley Park quoted President Trump’s musings on COVID-19-related business interruption claims. (Id., ¶ 47; see also Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing (Apr. 10, 2020).)

Philadelphia Indemnity, represented by Dentons, went through the same reps other insurers have employed in seeking to dismiss these claims, arguing that Ridley Park had failed to establish “physical loss or damage” to property and that the virus exclusion applied. Philadelphia Indemnity also went to great lengths to duck Ridley Park’s regulatory estoppel argument by claiming that the circular that accompanied ISO’s 2006 filing for the exclusion’s approval stated a coverage position identical to that taken by Philadelphia Indemnity. Specifically, that ISO disclosed that a pandemic would not be covered, and that the exclusion was proffered merely to clarify that position.

While the court did not indicate what weight it gave either parties’ arguments, it did determine that the facts presented by the parties needed to be resolved before it would rule on a dispositive motion. This is in line with other trial court’s decisions and reflects a well-reasoned approach to fact-determinative business interruption claims.

 

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 281

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About this Author

Lorelie S. Masters DC Partner Insurance Lawyer
Partner

A nationally recognized insurance coverage litigator, Lorie handles all aspects of complex, commercial litigation and arbitration.

Lorie has advised clients on a wide range of liability coverages, including insurance for environmental, employment, directors and officers, fiduciary, property damage, cyber, and other liabilities. She also handles various types of first-party property insurance claims, including claims under boiler and machinery, business-interruption, contingent business-interruption, extra expense, disability and other related coverages.

Lorie has handled and...

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Michael S. Levine Insurance Lawyer Hunton Andrews Kurth
Partner

Mike has more than 20 years of experience litigating insurance disputes and advising clients on insurance coverage matters.

Mike Levine is a partner in the firm’s Washington, DC office and a member of the firm’s Insurance Recovery team. Mike’s policyholder representation focuses on:

  • Property damage and business interruption claims, including COVID-19 losses
  • Event cancellation insurance counseling
  • Representations and warranties coverage
  • Commercial, professional, corporate and employment liabilities under CGL, pollution, E&O, D&O and EPLI insurance policies

Mike has spent his entire career advising clients about insurance and handling insurance coverage disputes. As a young lawyer, Mike represented the insurance industry in some of the highest-stakes matters, including the property, liability and appraisal proceedings arising from the Sept. 11 terrorist attack on the World Trade Center. Mike has devoted the latter half of his career to helping policyholders obtain the insurance recoveries they deserve, where Mike leverages his substantial insurance industry experience to maximize his clients’ insurance recoveries.

In recent years, Mike has recovered hundreds of millions of dollars of insurance proceeds for clients under general liability, property, directors and officers, cyber, errors and omissions, employment, environmental, and representations and warranties insurance coverages.

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Rachel E. Hudgins Associate Insurance Lawyer
Associate

Rachel represents clients in complex insurance coverage and bad faith litigation.

Rachel has litigated hundreds of insurance coverage and bad faith claims in state and federal courts across the country brought under a spectrum of insurance policies issued to individuals, public and private corporations, and government entities. Rachel’s success comes from cases ranging from the ordinary, such as storm-damaged properties, phishing-related data breaches, and wrongful employment termination, to the extraordinary, such as livestock deaths, grand jury investigations, parasailing-related...

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