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Oklahoma high court rules against Cherokee Nation in COVID case


The Oklahoma Supreme Court on Monday became the sixth state high court to rule against policyholders in COVID-19-related business interruption coverage when it issued a decision against the Cherokee Nation.

The 6-3 ruling, in a case filed by the Cherokee Nation against numerous insurers, overturned a lower court ruling in the plaintiffs’ favor.

On Jan. 14, in a brief ruling, an Oklahoma state court judge in Tahlequah refused to dismiss the case, Cherokee Nation; Cherokee Nation Businesses LLC; Cherokee Nation Entertainment LLC v. Lexington Insurance Co., concluding that the plaintiffs had made a “plausible claim for a fortuitous ‘direct physical loss’” and that the defendants had not shown that “exclusionary language in the policy applies to the facts.”

In overturning that ruling, the Oklahoma Supreme Court’s majority opinion said, “The district court’s expansion of business interruption coverage ignores the plain, unambiguous language of the Policy and the decisions from nearly all circuit courts of appeals, many federal district courts, and state courts that have ruled that business interruption coverage requires actual, tangible loss or damage of property, not just loss of use.”

The dissenting opinion said the majority’s “conclusions effectively give the armor of a named perils policy to an all risks policy which is devoid of pertinent definitions and exclusions and convert a business interruption insurance policy into nothing more than fire insurance.”

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

Other state supreme courts that have ruled against policyholders in similar cases are Iowa, Massachusetts, South Carolina, Washington and Wisconsin.