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Indiana theater group loses COVID case appeal in state court

Posted On: Jan. 5, 2022 2:37 PM CST

covid litigation

The Indiana Court of Appeals on Tuesday affirmed a lower court ruling that the Indiana Repertory Theatre is not entitled to COVID19-related business interruption coverage from a unit of the Cincinnati Insurance Co.

The Indianapolis-based court disagreed with the theater’s argument that its policy’s language was ambiguous as to whether the pandemic had caused physical loss or damage, according to the ruling in Indiana Repertory Theatre v. The Cincinnati Casualty Co. and McGowan Insurance Group LLC.

The theater’s “interpretation of ‘physical loss or physical damage’ is unreasonable because it parses and dichotomizes the Policy language,” the ruling said.

It “does not take into account the Policy as a whole, as it does not rectify its interpretation of ‘physical loss or physical damage’ with the ‘period of restoration’ provision of the Policy, which outlines the time when coverage begins and ends based on when the covered premises is ‘repaired, rebuilt, or replaced’ or the ‘business is resumed at a new permanent location,’” the decision said.

“Without physical alteration or impact to (the theater’s) premises, there can be no period of restoration, and thus ( the theater’s) interpretation of ‘physical loss or physical damage’ does not take into account the language of the Policy as a whole,” the ruling said in affirming the lower court’s summary judgment for the insurer.

Attorneys in the case did not respond to requests for comment or had no comment.

In December, the Court of Appeals of Ohio ruled for the insurer in a similar case, The Nail Nook, Inc. v. Hiscox Insurance Co., holding the Bratenahl-based nail salon could not prove the direct physical loss or damage required for business income or extra expense coverage under its policy.

Last week, the 2nd U.S. Circuit Court of Appeals in New York became the latest federal appeals court to hold that a policyholder was not entitled to COVID-19-related business interruption coverage, in a case filed by a New York art gallery against a Hartford Financial Services Group Inc. unit.