Insurers Say Virus Exclusion Nixes Tribe's Coverage Bid

By Melissa Angell
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Law360 (April 12, 2021, 7:32 PM EDT) -- A group of insurance companies urged a California federal judge on Friday to put an end to a proposed class action filed by the Menominee Indian Tribe of Wisconsin seeking COVID-19 business interruption coverage, arguing that their insurance policies clearly include virus exclusions that foreclose the tribe's bid for coverage.

In separate attempts to ax the suit, the insurers argued that even if the proposed class had alleged a direct physical loss or damage to their property, the virus exclusions preclude coverage for their claims.

The insurers include Lexington Insurance Co., Endurance Worldwide Insurance, Allied World National Assurance Co., Arch Specialty Insurance Co., Evanston Insurance Co. and Hallmark Specialty Insurance Co.

"Notably, plaintiffs' amended class action complaint discusses several potential exclusions in the primary policy form, but does not address, and in fact ignores, Arch's Policy form and its directly relevant exclusion," Arch wrote in its attempt to dismiss the suit.

The Menominee Tribe first lobbed their proposed class action last November in California state court, which was removed to a federal venue in January.

The tribe, along with the Menominee Casino Resort and the Wolf River Development Co., amended their argument in March in which they assert breach of contract claims.

The Menominee Tribe owns a number of businesses including hotels, casinos, restaurants and health care facilities, all of which have suffered direct physical losses or damages from the coronavirus, according to court documents.

The proposed class purchased insurance from "Tribal Property Insurance Program" for a 10-year policy that ended last July. The policy, prepared by Tribal First, holds a number of insurance policies from more than a dozen insurance carriers, court documents show.

The tribe argued that closures from the pandemic resulted in direct physical loss of or damages to property since the premises of their businesses were rendered unusable.

The tribe submitted their claim to the insurers to help cover business interruption losses from the coronavirus and closure orders, which the insurers denied, according to court documents. By denying coverage, the proposed class argued that the insurers breached their coverage obligations under the policy.

The tribe also acknowledged that the policy contains an exclusion for seepage, pollution or contamination but noted that the exclusion does not refer to viruses or communicable diseases.

But the insurers argued on Friday that the proposed class failed to allege physical loss or damage to their insured properties that would trigger coverage under the policy.

And even if they did meet this requirement, the insurers pointed out that the presence of a virus exclusion still bars the proposed class's claims.

For example, Liberty stated that its virus exclusion excludes coverage caused by any "virus, bacterium or other microorganism."

"The Liberty Virus Exclusion's plain and unambiguous language excludes plaintiffs' claims for coverage resulting from a virus-induced loss, COVID-19," the insurer wrote in its request to dismiss the suit.

The question of whether businesses are incurring physical damage from the pandemic worthy of loss coverage has fueled litigation, as business owners face off against insurers in court over pandemic-related loss claims.

In the Western District of Missouri, a judge ruled in August that the presence of the virus made a property unusable and, therefore, triggered a physical loss. But in Georgia federal court, a judge ruled that shutdowns alone don't warrant such coverage.

Representatives for the parties did not immediately respond to Law360's requests for comment on Monday.

The proposed class is represented by Andrus Anderson LLP, DiCello Levitt Gutzler LLC, Burns Bowen Bair LLP and The Lanier Law Firm PC.

The insurers are represented by Zelle LLP and Gibson Dunn.

The case is Menominee Indian Tribe of Wisconsin et al. v. Lexington Insurance Co. et al., case number 3:21-cv-00231, in the U.S. District Court for the Northern District of California.

--Additional reporting by Shawn Rice and Jeff Sistrunk. Editing by Jay Jackson Jr.

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