By Matthew Santoni

Law360 (April 29, 2020, 5:13 PM EDT) -- A Pittsburgh Italian restaurant and pizzeria has become one of the latest businesses to sue its insurer amid a statewide lockdown order, claiming Tuesday Motorists Mutual Insurance Co. wrongly denied its claims for income lost as a result of the shutdown intended to slow the spread of COVID-19.

DiAnoia's Eatery LLC, which runs the Strip District-based DiAnoia's and its associated carry-out storefront, Pizzeria Davide, filed a complaint in the Allegheny County Court of Common Pleas arguing that Motorists should have paid the business' claim for losses, damages and expenses caused by the coronavirus and the government orders closing nonessential businesses and dine-in restaurants.

"As a result of the impact of the COVID-19 pandemic and the referenced orders of the governor, plaintiff DiAnoia's has suffered partial loss of use of its premises, was forced to stop all seated and eat-in food service, has seen a dramatic decrease in its business, and has been forced to furlough employees, thereby incurring losses, damages and expenses," the complaint said.

It added: "DiAnoia's is entitled to an order enjoining defendant, Motorists, from denying coverage to insureds for business income, extra expense, contamination, civil authority and other coverages for losses, damages and expenses caused by the COVID-19 pandemic and referenced orders."

DiAnoia's sought a declaratory judgment from the court that its losses were covered by its Motorists insurance policies.

The suit said DiAnoia's had an "all risks" business insurance policy with Ohio-based Motorists, and said the policy did not exclude the losses, damages and expenses caused by the pandemic.

On March 19, Pennsylvania Gov. Tom Wolf ordered all "non-life sustaining businesses" in the state to close their physical locations. He issued a stay-at-home order for residents of some counties starting March 23, and the rest of the state April 1, the complaint said. The highly contagious nature of the coronavirus made places where people gather, like the DiAnoia's businesses, particularly vulnerable.

"The COVID-19 virus, as evidenced by these orders, causes damage to property, particularly in places of business, such as that of plaintiff DiAnoia's and other similarly situated persons and organizations, where the operation of the business requires interaction, gatherings and contact in areas where there exists a heightened risk of contamination," the complaint said. "The COVID-19 pandemic has directly and adversely affected the business operations of plaintiff DiAnoia's by causing damage and the risk of further harm to the property and its occupants,"

The suit said Motorists' denial of the restaurant's claim was a breach of its contract, and said the court should determine that it was entitled to coverage.

Attorneys representing DiAnoia's had filed two similar lawsuits in state court earlier in the month on behalf of other Pittsburgh-area restaurants, with one seeking class-action status on behalf of customers of Erie Insurance. Many other suits over COVID-19-related insurance denials have been filed in federal court, with some seeking to form a multidistrict litigation in Philadelphia to consolidate some of the common questions.

Attorneys for DiAnoia's and representatives of Motorists — which also does business as Encova Insurance — did not immediately respond to requests for comment Wednesday.

DiAnoia's is represented by James C. Haggerty of Haggerty Goldberg Schleifer & Kupersmith PC, Scott B. Cooper of Schmidt Kramer PC, John P. Goodrich of Jack Goodrich & Associates PC and Jonathan Shub of Kohn Swift & Graf PC.

Counsel information for Motorists was not immediately available Wednesday.

The case is DiAnoia's Eatery LLC v. Motorists Mutual Insurance Co., case number GD-20-005273, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Amy Rowe.

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