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Judge refuses to dismiss BI virus suit against CNA


A Chicago judge who refused to dismiss COVID-19 business interruption litigation filed by construction companies against a CNA Financial Corp. unit said Monday he is standing by his ruling.

Judge Raymond W. Mitchell of the Cook County Circuit Court’s chancery division in Chicago, said he would not reconsider his Aug. 12 decision in JDS Construction Group, LLC and 9 Dekalb Fee Owner LLC v. Continental Casualty Co.

The case was filed against CNA unit Continental Casualty Co. by New York-based construction management company JDS Construction Group LLC and Nyack, New York-based 9 Dekalb Fee Owner LLC, a construction developer, that were developing an 80-story condominium tower in Brooklyn.

Judge Raymond W. Mitchell said in its reconsideration motion CNA “has cited numerous decisions from New York and Illinois, asserting that courts in both jurisdictions have uniformly – or, at least, overwhelmingly – concluded that the presence of the virus does not trigger coverage under a policy requiring ‘direct physical loss of or damage to property,’” the ruling said.

“What is remarkable about defendant’s reconsideration motion is that it is bereft of even a single citation to the Plaintiff’s complaint,” which alleges not only the virus’ presence on the insured premises, but also how its droplets caused structural damage and alteration to the property, the ruling said.

“There seems to be some suggestion that the August 12, 2021 Order must be wrong because so many other courts have reached a contrary conclusion,” the ruling said. But those decisions are not “helpful” in this case, he said, adding, “Judges are not sheep, and I do not decide a case by counting noses.”

A plaintiff attorney in the case, Robin Cohen, chair of Cohen Ziffer Frenchman and Mc Kenna LLP in New York, said in a statement, “We…are appreciative that the Court disregarded the carrier’s bid for herd dismissal based on differently pled cases lacking precedential value and/or resolving — at the pleadings stage — disputed facts about an evolving and novel coronavirus.” 

CNA did not respond to a request for comment.








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