On September 24th, the U.S. District Court for the Middle District of Florida ruled in favor of Malik Law’s client, Urogynecology Specialist of Florida, in a decision that signals possibilities for winning coverage for business interruption losses due to COVID-19.
Across the country, more than a thousand lawsuits related to insurance coverage for COVID-19-related losses have been filed against insurance companies, and In approximately 25 percent of these cases, the insurer-defendants have filed early motions to dismiss. So far, the courts have ruled in favor of the plaintiff-policyholders in only 6 of these cases. Urogynecology Specialist’s case is one of these six and the first in Florida in which a judge has denied the insurance company’s motion to dismiss the lawsuit.
Urogynecology Specialist of Florida filed a lawsuit against its insurance company, Sentinel Insurance, in Orlando, on June 2, 2020. The lawsuit claimed Sentinel had breached their insurance contract by denying business interruption coverage for losses incurred when the office was forced to shut down because the Governor of Florida issued an executive order declaring a state of emergency due to the ongoing COVID-19 pandemic.
Urogynecology Specialist’s losses included loss of business income, loss of accounts receivable and loss of the use of the insured property, as well as additional expenses needed to minimize the suspension of business operations and continue operating. In the lawsuit, the plaintiff claims these losses should have been covered because their policy includes coverage for loss of income in instances when they can’t access their premises due to an order of a civil authority.
In its motion to dismiss the case, filed in the U.S. District Court for the Middle District of Florida, Sentinel Insurance argued that the plaintiff’s policy excludes losses caused by a virus. Sentinel cited language in the “Limited Fungi, Bacteria or Virus Coverage” provision of the policy to support its argument. This language asserts that Sentinel “will not pay for loss or damage caused directly or indirectly by” fungi, wet rot, dry rot bacteria or virus, except for a “specified cause of loss” to covered property.
Representing the plaintiff, Malik argued that the policy language is ambiguous and any ambiguity should be interpreted as being in favor of coverage, so the case should not be dismissed. Sending a noteworthy signal to insurance companies, the judge agreed. She found that there are “several arguable ambiguous aspects of the Policy” that make ruling on coverage “inappropriate” at this stage in the game and that there is no applicable case law to support dismissing the case.
The win for Urogynecology Specialist of Florida is important for several reasons. First, of course, is that the plaintiff can now move forward with its lawsuit against Sentinel Insurance and obtain the payment rightfully due to them for their business interruption losses. Malik Law is eager to prove that the plaintiff’s insurance claim should have been covered under the terms and conditions of their policy.
Of greater significance, however, is the fact that the judge recognized that virus exclusion provisions in business insurance policies do not necessarily exclude losses due to COVID-19. Exclusion language that says insurance companies won’t pay for losses or damage caused by “the presence, growth, proliferation, spread, or any activity of ‘fungi wet rot, dry rot, bacteria or virus’” do not logically and unambiguously apply to COVID-19-related losses.
Finally, the judge also recognized there is no precedent for relating the effects of COVID-19 on a business to virus exclusions in business insurance policies. In her ruling, she specifically noted that none of the cases cited by Sentinel Insurance as precedents “dealt with the unique circumstances of the effect COVID-19 has had on our society.” In fact, there is no “binding case law on the issue of the effects of COVID-19 on insurance contracts virus exclusions.”
Malik Law is proud to have represented the plaintiff in this significant case and our business interruption insurance claim attorneys look forward to winning the lawsuit against Sentinel Insurance. We also hope this important ruling by U.S. District Judge Anne C. Conway paves the way for more businesses to fight for and win the insurance coverage owed to them for their COVID-19-related business interruption losses.
Branthoover, C.M. (29 Oct. 2020). COVID-19: Coronavirus coverage litigation for policyholder, all is not “loss,” nor lost. The National Law Review.
Urogynecology Specialist of Florida LLC v. Sentinel Insurance CO. Ltd. (Case number 6:20-cv-1174-Orl-22EJK, in the U.S. District Court for the Middle District of Florida, Sept. 24, 2020).