Cincinnati Insurance seeks dismissal of COVID case at trial

The defendant insurer in an ongoing COVID-19 business interruption trial is asking the judge to dismiss the case.

Cincinnati Insurance Co. on Wednesday asked Judge Stephen R. Bough of the U.S. District Court in Kansas City, Missouri, to dismiss the lawsuit filed by an Overland Park, Kansas-based restaurant chain in K.C. Hopps LTD. v. the Cincinnati Insurance Co. Inc.

In the latest development in the case, the restaurant chain on Thursday asked the judge to modify his jury instructions in several places.

In September, Judge Bough, who had already ruled in plaintiffs’ favor in at least two COVID-19 business interruption lawsuits,  did so again when he refused to dismiss the restaurant chain’s case.

The insurer’s attorneys said in Wednesday’s filing that a judgment as a matter of law is appropriate because “having heard Plaintiff’s case and having seen Plaintiff’s evidence it is clear that this matter presents no question of fact that must be left to the providence of the jury.”

The filing said the insurer is entitled to be granted the motion for three reasons: The plaintiff has failed to prove the virus was present; that the virus was the cause of its alleged loss; and that even if the losses caused by the governmental orders restricting its business operations caused physical alteration to the property, it is excluded from coverage.