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Law360 (August 13, 2021, 6:55 PM EDT) -- A Florida federal judge on Thursday tossed a proposed class suit against Hartford Casualty Insurance Co., ruling that the policyholders' insurance did not cover COVID-19 business interruption losses because there was no physical loss or damage to the properties.
U.S. District Judge Federico A. Moreno dismissed a suit by Miami salon owner Patrice Bourgier after finding that each of the insurance policy provisions that she said triggered coverage requires evidence of direct physical loss to the business, and she failed to show that.
"Even if Bourgier's salon physically changed, that is, Bourgier moved the salon's furniture around, added hand sanitizer stations and plexiglass, or enhanced the air filtration system, it still cannot be said that there was actual damage to the property," Judge Moreno said.
The judge pointed to his similar decision earlier this year in a suit by restaurant Town Kitchen LLC against its insurer, in which he found that the property did not change. The judge likened the restaurant's economic losses to a zoning change, loss of liquor license or a football championship parade blocking the road.
Though Bourgier had presented other cases where plaintiff insureds were victorious on this issue, the judge said they were from outside of this jurisdiction and still did not outweigh the majority of federal courts' rulings around the country on COVID-19 business interruption coverage.
Judge Moreno also said there is no coverage under the policy's civil authority provision because there was not a complete prohibition of access to the business even during mandatory lockdowns meant to curb the spread of the coronavirus.
Bourgier sued in March, alleging her losses extended beyond shutdown orders to completely reconfiguring the salon's space and changing operations to mitigate the spread of the coronavirus. Bourgier said businesses were forced to close "to permanently and reliably eliminate contamination" by the virus.
Hartford argued that those physical alterations weren't made to prevent the spread of the virus on the property but from person to person and said the salon didn't need to repair, rebuild or replace any of its property.
The insurer also argued that the salon could not escape the virus exclusion, which more than 30 courts have found bars COVID-19-related claims.
Attorneys for the parties did not respond to requests for comment Friday.
Bourgier is represented by Steven C. Marks, Aaron S. Podhurst, Lea P. Bucciero, Kristina M. Infante and Pablo Rojas of Podhurst Orseck PA and Stephen N. Zack, Bruce Weil, James Lee and Marshall Dore Louis of Boies Schiller Flexner LLP.
Hartford is represented by James M. Kaplan of Kaplan Zeena LLP and Sarah D. Gordon, John J. Kavanagh and Caitlin R. Tharp of Steptoe & Johnson LLP.
The case is Patrice Bourgier et al. v. Hartford Casualty Insurance Co., case number 1:21-cv-21053, in the U.S. District Court for the Southern District of Florida.
--Additional reporting by Shawn Rice. Editing by JoVona Taylor.
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