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The 2nd U.S. Circuit Court of Appeals in New York issued its second ruling against a policyholder in a COVID-19 business interruption case Thursday, holding that a taekwondo studio is not entitled to coverage in litigation filed against a Tokio Marine unit.
The appeals court cited its December ruling in 10012 Holdings Inc. DBA Guy Hepner v. Sentinel Insurance Co. in upholding a district court ruling that the Amherst, New York, studio does not have business interruption coverage, according to the decision in Kim-Chee LLC, Yup Chagi Inc., DBA Master Gorino’s Pil-Sung Tae-Kwon-Do v. Philadelphia Indemnity Insurance.
In light of its earlier ruling, the four-page decision said, “Kim-Chee cannot base its business interruption claim on loss of possession or access. Nor can Kim-Chee argue that closure due to the risk of ‘possible human infection’” qualifies as a risk of direct physical loss, it said.
To survive dismissal the complaint must “plausibly allege that the virus itself inflict” direct physical loss.
Instead, the complaint “offers only conclusory assertions in support of this contention,” it said, in affirming a lower court ruling by the Buffalo, New York-based district court.
Plaintiff attorney Christopher M. Berloth, a partner with Duke Holzman Photiadis & Gresens LLP in Buffalo, said in a statement he disagrees with the decision and is “in the process of analyzing the next steps to fight for the policyholders’ rights with respect to these losses.”
Tokio Marine’s attorneys did not respond to a request for comment.
This week, a state court twice refused to dismiss COVID-19-related business interruption coverage litigation filed by a university against Factory Mutual Insurance Co.
NEW YORK--A company that laid off 31 people, 30 of whom were over 40, could have accomplished its goals without having a discriminatory impact on workers protected by the Age Discrimination in Employment Act, says a federal appellate court.