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A federal judge who had already ruled in favor of plaintiffs in at least two COVID-19 business interruption lawsuits did so again Tuesday in refusing to dismiss litigation filed by a restaurant chain against Cincinnati Insurance Co.
Judge Stephen R. Bough of the U.S. District Court in Kansas City, Missouri, held in his ruling in K.C. Hopps LTD. v. The Cincinnati Insurance Co. Inc. that the chain had demonstrated it had sustained a direct physical loss or damage to its property.
“The Court finds Plaintiff has sufficient evidence to support the inference that SARS-CoV-2 was present on its premises, this raising genuine issues for trial,” the ruling said, citing supporting testimony by a molecular epidemiologist and a chemistry and bioengineering professor emeritus.
The judge also held the chain had sustained damages, despite the insurer’s contention that the plaintiff had received more in pandemic relief than it claimed in damages.
“Plaintiff argues the purpose of the government relief was to keep workers paid and employed, not to compensate Plaintiff for its lost business income, and therefore Plaintiff still sustained an ‘actual loss.’ The Court agrees with Plaintiff,” the ruling said.
The judge did agree the insurer should be granted summary judgment on its civil authority and ingress and egress claims.
Cincinnati Insurance said in a statement, “We are pleased with the court’s decision to deny the plaintiff’s motion for summary judgment and to grant partial summary judgment in our favor on the civil authority and ingress and egress claims. We intend to continue to vigorously defend our policy language as this case progresses.” Plaintiff attorneys did not respond to a request for comment.
In September, Judge Bough held in Studio 417 Inc. v. The Cincinnati Insurance Co., that the plaintiffs had “adequately stated a claim of direct physical loss,” based on the alleged causal relationship between the virus and their alleged losses.
That case was consolidated with another, Jacob Rieger & Co., LLC et al. v. The Cincinnati Insurance Co. in December, with Judge Bough holding plaintiffs had asserted class-action claims in both cases.
He ruled similarly in the plaintiff’s favor in a Sept. 21 decision in Blue Springs Dental Care LLC et al. v. Owners Insurance Co., in which he denied Lansing, Michigan-based Owners’ motion to dismiss a suit brought by a Kansas City, Missouri-area dental practice. A mediator was assigned to the case in March.