Retailers Fight For Coverage In Ohio COVID Class Action

By Eli Flesch
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Law360 (May 5, 2021, 10:10 PM EDT) -- A group of small businesses urged an Ohio federal judge to keep alive their proposed class action seeking coverage for losses from COVID-19 and related government shutdowns, saying that virus particles altered the air and surfaces in their shops.

The policyholders, including an Ohio record store that also acts as craft beer pub and a New York jeweler, told U.S. District Judge Matthew W. McFarland on Monday that they had sufficiently shown the virus particles caused a direct physical loss or damage to their properties, as called for in their insurance policies.

Cincinnati Insurance Co., which asked the court to toss the suit, failed to fully appreciate the range of meaning in the phrase "direct physical loss," the policyholders contended, saying that its plain meaning would include the loss of a building's use, and not necessarily require any structural alterations.

The insurer chose to forego a textual analysis of the phrase in favor of trotting out a "scorecard of judicial decision wins and losses," the policyholders said in their response to Cincinnati's dismissal bid.

The record store, Craft & Vinyl in Columbus, Ohio, closed its doors in mid-March last year in compliance with Buckeye State restrictions, according to court records. The jeweler, Reeds Jewelers, was also forced to shut down for a time after it was deemed a non-essential business. Both businesses have since reopened as restrictions eased.

The businesses said in their consolidated complaint in February that they planned to produce expert testimony to show that even if alterations were required for coverage, they would still qualify.

"The probability of illness prevents the use of property in no less of a way than, on a rainy day, a crumbling and open roof from the aftermath of a tornado would make the interior space of a business unusable," the policyholders said at the time.

In their Monday filing, they likened coronavirus particles to particles from dangerous materials like asbestos, lead, and ammonia gas, which would be covered by insurance policies.

The question of whether virus particles cause insurable property damage is currently before the Ohio Supreme Court, which agreed in April to look into the issue on behalf of a district court hearing a suit against Cincinnati brought by an Ohio audiology practice.

U.S. District Judge Benita Y. Pearson had refused to rule on the matter, calling the interpretation of state law "unresolved," and said she was in need of a ruling from the state supreme court to ensure uniformity across Ohio. High courts in New York, Pennsylvania, and Florida have also been tasked in recent months with COVID-19 coverage questions.

Craft & Vinyl fought an effort made by Cincinnati last year to bring the Ohio Supreme Court into its case, then a standalone suit. The record store said the question of whether the coronavirus caused physical damage wasn't one of state law. It accused the insurer of trying to secure a favorable ruling before the suit's consolidation.

The policyholders on Monday, however, said it would be inappropriate to dismiss their case because multiple credible interpretations of the meaning of "direct physical loss or damage" still existed. They added that their interpretation of the phrase should take precedence over Cincinnati's at this stage in the litigation process, before they get the opportunity to produce more evidence supporting their position.

Counsel for the policyholders declined to comment.

Counsel for Cincinnati did not immediately respond to requests for comment.

Troy Stacy Enterprises, doing business as Craft & Vinyl, is represented by Mark A. DiCello, Kenneth P. Abbarno, Mark Abramowitz, Adam J. Levitt, Amy E. Keller, Daniel R. Ferri, Mark Hamill and Laura E. Reasons of DiCello Levitt Gutzler LLC, Mark Lanier, Alex Brown and Skip McBride of the Lanier Law Firm PC, and Timothy W. Burns, Jeff J. Bowen, Jesse J. Bair and Freya K. Bowen of Burns Bowen Bair LLP.

Reeds Jewelers of Niagara Falls Inc. is represented by William R.H. Merrill, Burton S. DeWitt, Seth Ard, Marc M. Seltzer, Steven Sklaver and Jesse-Justin Cuevas of Susman Godfrey LLP, John Scott Black, Richard D. Daly and Melissa Wooden Wray of Daly & Black PC, and by Randolph H. Freking of Freking Myers & Reul LLC.

Cincinnati Insurance Co. is represented by Michael K. Farrell, Rodger L. Eckelberry and Carrie Dettmer Slye of BakerHostetler, and by Daniel G. Litchfield, Michael P. Baniak and Laurence J. Tooth of Litchfield Cavo LLP.

The case is Troy Stacy Enterprises Inc. et al. v. The Cincinnati Insurance Company et al., case number 1:20-cv-00312, in the U.S. District Court for the Southern District of Ohio.

--Additional reporting by Daphne Zhang. Editing by Emily Kokoll.

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