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COVID-19 Litigation Update

COVID-19 Litigation Update
Lether Law Group represents The Dentists Insurance Company (TDIC) as national coordinating counsel in COVID-19 related business interruption litigation in a number of jurisdictions throughout the United States. We are happy to announce the dismissal of one such action in the Eastern District of Pennsylvania.


In KesslerDental Associates, P.C. v. The Dentists Insurance Company, Cause No. 2:20-cv-03376-JDW, Honorable Joshua D. Wolson granted TDIC’s Motion to Dismiss finding that the COVID-19 pandemic and the governmental and societal response thereto does not trigger the business interruption coverages in the TDIC policy. Summarizing his decision, Judge Wolson stated the following:
“The Covid-19 pandemic might be unprecedented, particularly in its impact on businesses large and small. But it is not a writ for the Court to rewrite the Policy to which Kessler Dental and Dentists Insurance agreed. That Policy does not provide coverage for the losses that Kessler Dental has suffered.”

Kessler Dental sued TDIC claiming that TDIC wrongfully denied coverage for business income losses sustained as a result of the pandemic and the State of Pennsylvania’s shutdown orders. The Court, “at the risk of being labeled anti-Dentite”, citing to The Yada Yada Seinfeld episode from 1997, held that the TDIC virus exclusion operates to defeat coverage.

The TDIC virus exclusion precludes coverage for “loss or damage, including economic loss” caused by a virus. The Court found, simply, that the language is not ambiguous and applies to the COVID-related claims. Kessler attempted to overcome the virus exclusion by claiming that the business income losses that it sought were not “loss” or “damage”. The Court rejected this argument based on the plain language of the policy and Pennsylvania’s clear law regarding policy construction and interpretation.

Kessler also argued that the Court should bar TDIC’s reliance on the virus exclusion based upon a regulatory estoppel theory. Kessler argued that ISO and AAIS made false representations to the Pennsylvania Insurance Commissioner in 2006 when proposing the virus exclusion. The Court rejected this argument for two reasons. First, the Court held that Kessler had failed to allege that ISO or AAIS was representing TDIC in making any regulatory representations. Second, the Court held that Kessler had failed to allege any inconsistent statements.
“But even if the Court were to attribute those trade groups’ statements to Dentists Insurance, Kessler Dental does not plead any inconsistency. it alleges that ISO and AAIS made statements in 2006 representing that property policies were not intended to cover virus-related losses. Dentists Insurance takes the same position here today as the ISO and AAIS did in 2006; it argues that the Virus Exclusion bars coverage. Thus, regulatory estoppel does not apply, even if, as Kessler Dental claims, the insurance trade groups made statements to regulators in 2006 that were at odds with the then-current state of the law.”

The Court went on to further analyze the specific Business Interruption Coverages – Business Income Loss, Extra Expense, Civil Authority – finding that even in the absence of the virus exclusion, the coverages are not triggered. Importantly, the Court found that the virus and the governmental response thereto did not cause “direct physical loss of or damage to” the insured premises. Notably, the Court found that Kessler was never actually shut down. Pursuant to the governor of Pennsylvania’s business shutdown order, dental practices were not actually closed, but were limited to performing emergency procedures.

Below is a link to the complete Order of the Court.

Order of the court

TDIC was represented by Tom Lether and Eric Neal as national coordinating counsel and was represented locally by Michael Smith and Marc Kamin of the Stewart Smith law firm in Philadelphia.

To the extent that you have any questions about any COVID-19 related matters, please feel free to contact Lether Law Group at any time.

The above article is an opinion based on various resources such as industry knowledge and is not to be construed as legal advice or to be used as such. If you require legal advice or would like to inquire further about the information contained in this article, please feel free to contact our office directly.

To Fry or Not to Fry? Homeowner Coverage Issues for Turkey Frying

It is estimated that turkey frying-related accidents cause in excess of $15 million in property damage each year in the U.S. In fact, Thanksgiving Day yields more than double cooking-related home insurance claims compared to any other day in November. The holiday season is upon us.  As a result, it is important for insurers to be ready to handle an increase in all kinds of fire-loss claims. Additionally, it is important to note, given the current COVID restriction across the United States, there may be an increase in families attempting to fry their Thanksgiving bird outdoors in an attempt to maintain a safe distance from loved ones. This could lead to a potential increase in claims this holiday season.

Insurers need to be prepared for an uptick in claims under insureds homeowners’ policies. The dwelling coverage of homeowners’ insurance will typically cover the cost to repair or replace damage resulting from a turkey frying accident.  However, it will still be important to investigate the claim to determine whether there is enough dwelling coverage to cover the replacement costs and sufficient coverage to cover any built-ins and/or contents that are destroyed.

Additionally, it may not be the home itself that suffers property damage. Many at-home-fryers turn their backyards or detached garages into temporary kitchens. It will be important to check if any auxiliary structures are damaged and whether or not those structures are covered under the policy. It is also important to note that the liability coverage will likely cover any injury to guests, so long as your policy covers the proper amount of liability coverage.

While homeowners will likely be covered by frying mistakes under homeowners policy, an interesting issue arises about potential damage to common areas at condominiums. Several states, including Washington, have explicit laws regarding coverages that must be maintained by condominium associations.  In Washington, RCW 64.34.352 requires condominium associations to maintain property insurance on the condominium insuring against all risks of direct physical loss commonly insured against and liability insurance, including injury and property damage from using the common areas. It will be important for any adjuster to be aware of any legal requirements for coverage. Additionally, a condominiums association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) may specifically prohibit turkey frying (as is the trend with many condominium associations) which would preclude coverage for any loss resulting from the same.

Lether Law Group has been handling large first-party property losses for over 32 years. This includes fire loss and spontaneous, unexpected claims. If you would like to discuss these recent developments or any other matters, please feel free to contact us at any time.

The above article is an opinion based on various resources such as industry knowledge and is not to be construed as legal advice or to be used as such. If you require legal advice or would like to inquire further about the information contained in this article, please feel free to contact our office directly.

Introducing Two New Attorneys

Lether Law Group recently welcomed two new attorneys to our team. Welcome aboard to Dana Mydland and Erik Swedstedt. We look forward to accomplishing great things together.
Dana Mydland grew up in the Pacific Northwest and has remained since. She graduated cum laude from Washington State University, where she received a bachelor’s degree in Political Science and Criminal Justice. Dana received her juris doctorate from Seattle University School of Law, graduating cum laude. She served as Executive Editor of Research and Training for Seattle University Law Review.  Prior to coming to our firm, Dana worked as a judicial law clerk for the Honorable J. Robert Leach at the Washington State Court of Appeals, Division I. Dana enjoys golfing, reading, and hiking around the PNW.
Erik Swedstedt is a Seattle native and graduate of the University of Oregon where he earned a bachelor’s degree in Accounting and a minor in Economics. After obtaining his undergraduate degree, Erik worked for an aviation law firm for three years. Erik gained experience working with C-level executives and assisting with the purchase and sale of corporate aircraft. He subsequently earned his Juris Doctor from Seattle University School of Law where he graduated cum laude. During law school, Erik worked as a legal intern assisting insurance companies with uninsured motorist claims. During his final year of law school, Erik worked as a law clerk for a law firm focused on construction litigation. Erik enjoys attending concerts, golfing, and snowboarding.

Lether Law Group Interviews Now Available Through Our Website

2020 has been a historic year for a number of reasons. Unfortunately, most of these developments have not been favorable. As a result of COVID issues, civil unrest issues, and historic wildfires, there have been significant legal issues which have impacted insurers and insureds.

To address these fascinating issues, Lether Law Group announces that it is hosting on its webpage a series of interviews addressing various issues such as COVID exposure, trying cases in 2020 during a pandemic, wildfires, protest claims, and other pertinent and relevant developments which have occurred in the insurance and legal world in 2020. Our first interview involving COVID coverage issues and the impact of COVID on the legal and business community is now available on our webpage at letherlaw.com/covid-19-resources

We invite everyone to review our webpage and learn a little bit more about Lether Law Group. Please take the time to watch what is hopefully an educational and informative interview as well.

Remembering Victims and Survivors

On the anniversary of September 11, 2001, we at Lether Law Group stand united in remembering the victims and survivors of the attacks on New York and Washington, D.C. In light of those events, and the challenges still present today, we especially give thanks for our first responders and the heroes who so bravely honored, and continue to honor, our country.

JPML Denies Move to Create MDL for COVID-19 Business Interruption Lawsuits

Earlier today, the Panel for Multi-District Litigation issued an Order denying consolidation of hundreds business interruption coverage lawsuits related to COVID-19.

The Panel held that the allegedly common issues supporting consolidation, “share only a superficial commonality.”  The Panel further held that there would be little potential for common discovery and that because each case will involve, “different coverages, conditions, exclusions, and policy provisions purchased by different businesses in different industries located in different states,” the differences in analyzing coverage will overwhelm any common issues.

The Panel held that consolidation would present serious managerial and efficiency concerns that make consolidation inappropriate for these claims.

COVID-19 Related Business Interruption in District Courts

As a result of this ruling, nearly all of the COVID-19 related business interruption lawsuits filed through the United States will remain in the District Courts where each case originated.

The exception may be for a limited number of insurers.  The Panel has asked for additional briefing as to whether insurer-specific MDL’s might be appropriate for Lloyd’s, Cincinnati Ins. Co., the Hartford insurers, and Society Insurance.

Lether Law Group represented The Dentists Insurance Company in opposing MDL treatment for these matters.  We are pleased that we were able to obtain this result.  If you have any questions or if we can be of assistance on any COVID-19 related matters, including class actions, please feel free to contact us at any time.