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6th Circuit issues sixth pro-insurer COVID BI ruling

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The 6th U.S. Circuit Court of Appeals in Cincinnati on Wednesday issued its sixth ruling holding that insurers were not obligated to indemnify policyholders for COVID-19-related business interruption losses.

The appeals court upheld lower court rulings in Cincinnati Insurance Co.’s favor in three complaints by Michigan-based restaurants and entertainment venues seeking coverage under their policies, according to the decision in Brown Jug, Inc. et. al v. Cincinnati Insurance Co.

“Plaintiffs have failed to adequately allege facts that support a finding that the virus caused actual property loss or damage,” as required under their coverage, the ruling said.

The complaint of one of the plaintiffs, Ferndale Michigan-based Dino Drop Inc. “specifically alleges that COVID-19 causes physical loss by, among other things, destroying distorting, corrupting, attaching to, and physically altering property, including its surfaces, and by rendering property unusable, uninhabitable, unfit for intended function, dangerous and unsafe,” the ruling said.

It alleges that when droplets containing the virus land on surfaces they transform into dangerous “fomites,” which are inanimate objects that may carry and spread infectious agents.

However, the complaint “does not actually allege that the property was harmed,” the ruling said. It says several employees and customers tested positive for COVID-19 and the outbreak purportedly damaged the property because Dino Drop had to take remediation measures such as cleaning. These “are precisely the sort of losses we have previously determined” are not physical losses but economic, the ruling said.

It cites its own previous rulings as well as pointing to the seven other federal circuit courts that have issued similar decisions.

Cincinnati Insurance said in a statement, “We are pleased that the Sixth Circuit has now upheld dismissals in Ohio, Kentucky and Michigan, agreeing that commercial property insurance policies do not provide coverage for these COVID-19 claims.”

Plaintiff attorneys did not respond to a request for comment.

 

 

 

 

 

 

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