By Daphne Zhang

Law360 (November 9, 2020, 4:19 PM EST) -- A Minnesota dental office said more courts across the country have rejected insurers' bids to dismiss COVID-19 business interruption suits for policies without a virus exclusion, telling a Texas federal judge that it has sufficiently pled physical damage.

Christie Jo Berkseth-Rojas, who runs Rojas Family Dental in Minneapolis, said Friday that a greater number of courts have axed insurers' dismissal motions in suits involving policies that don't contain a virus exclusion like the one her office held with Aspen American Insurance Co.

The dentist cited data from the University of Pennsylvania Law School's virus-related litigation tracker, which listed that courts have denied the insurers' dismissal bids in 10 cases while granting them in eight cases concerning policies that do not have a virus exclusion. There have been over 1,200 business interruption suits filed so far, according to the school.

In Friday's response, the dentist said that the "courthouse could no longer serve the administration of justice as it had before," because grand jury proceedings, public trials and in-person depositions are limited for cases like hers, claiming that her office incurred physical loss of use because of COVID-19 just as courts across the country have.

The Minneapolis dental office hit Aspen with a proposed class action after the carrier denied coverage for her business losses stemming from government closure orders in March. In September, Aspen urged the federal court to follow the "daily growing" number of rulings that have said insureds don't need to show their property was tangibly altered to claim physical damage.

On Friday, the dental office said it successfully pled physical damage from its lost use of its property. The office said Aspen can't argue that physical damage always requires structural change, because it never changed coverage requirements from "direct physical loss of or damage" to "physical alteration" or "structural alteration" in the policy.

"The insurance industry has left this language substantively unchanged for decades," the dental practice said.

Even if direct physical damage means structural alteration, the office has sufficiently claimed it because the virus will "infest property and stick to its surfaces, alter the structure of those surfaces and the air within the property, and lead to claims of business interruption losses," the practice added.

Additionally, courts have ruled on multiple occasions that property infiltration "by microscopic entities" like COVID-19 constitutes direct physical loss or damage, according to the suit. The practice also cited case law, saying that the Minnesota court of appeals ruled "direct physical loss can exist without actual destruction of property or structural damage to property."

Aspen's contention that it only incurred a financial loss also failed, the practice said, because a policyholder experiences an "economic loss" whenever they suffer direct physical loss or damage. Insureds purchase business interruption insurance to avoid financial loss from potential property damage, the office said in the suit.

Aspen's business interruption insurance would be "illusory" if it excludes this property loss by interpreting it as "mere economic loss," the dental office added.

Counsel for the parties could not be immediately reached for comment Monday. 

The dental office is represented by Adam Levitt of DiCello Levitt Gutzler LLC, W. Mark Lanier, Ralph D. McBride and Alex J. Brown of The Lanier Law Firm PC.

Aspen is represented by Yvette Ostolaza, Yolanda C. Garcia and Mason Parham of Sidley Austin LLP.

The case is Christie Jo Berkseth-Rojas DDS v. Aspen American Insurance Co., case number 3:20-cv-00948, in the U.S. District Court for the Northern District of Texas.

--Editing by Amy Rowe.

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