Insurance Coverage; COVID-19 Business Interruption Claims; Interpretation and Application of the “Virus Exclusion”

By Michael P. Byrne, Joseph F. Nicholas, Jr., and Doug Holthus

Throughout the country and due to the impacts of the current COVID-19 pandemic, business owners are presenting business interruption claims to their commercial insurance carriers. With fair regularity, insurers are denying these claims based upon a “Virus Exclusion” within the insured’s policy.

These claim denials then are being made the subject of declaratory actions, with the courts being asked to determine the issue of coverage.

Confronted with such situations, jurists in two separate cases pending in the Federal District Court, Northern District of Ohio, recently arrived at conflicting conclusions with regard to whether the state’s COVID-19 shutdowns of restaurants created valid claims for business interruption insurance coverage. Weighing fundamentally identical facts and policy language, one court found for the insurer, upholding a denial of coverage, while the other found for the insured restaurant, holding that coverage existed under the particular policy. The disparity in these decisions will certainly result in further appellate activity in Ohio with significant implications as the consequences of the COVID-19 pandemic continue to be revealed.

The question has now been certified to the Ohio Supreme Court.

Santo’s Italian Café, LLC v. Acuity Ins. Co., (Dec. 20, 2020), N.D. Ohio No. 1:20-CV-01192

In Santo’s, Judge Pamela Barker relied upon two separate basis when finding in favor of the insurer, and dismissing Santo’s claims for business interruption coverage. First and foremost, the Court concluded that the insured had failed to demonstrate any “tangible” or “structural” damage beyond mere “economic losses” that would establish “direct physical loss of or damage to” the insured premises. This is not an uncommon basis for denial of coverage in such situations; i.e., a very strict interpretation and application of the language of a typical Virus Exclusion. Specifically, the Court noted the language of the Property Coverage Form which read, “We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” Further, the form included the following in “additional coverages”:

g. Business Income and Extra Expense

(1) We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your operations during the period of restoration. The suspension must be caused by direct physical loss of or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss.

Acuity asserted there had been no “direct physical loss of or damage to property,” because there were no allegations of “demonstrable, physical alteration” or “tangible alteration” of the property. To the contrary, Santo’s argued the policy was subject to interpretation in that “physical loss” can include a “loss of functionality,” “lost operations or inability to use the business.”

Relying upon Mastellone v. Lightning Rod Mut. Ins. Co., 175 Ohio App. 3d 23, 40 (Ohio 8th Dist. Ct. App. 2008) (denying coverage for mold stains) and Universal Image Prods., Inc. v. Federal Ins. Co., 475 Fed. App’x 569, 573 (6th Cir. 2012) (denying coverage for an odor caused by mold or bacteria) the Court concluded that under Ohio law, the terms of the policy required Santo’s to allege and prove a “distinct, demonstrable physical alteration” of its property, beyond “mere economic effects.”

Alternatively, the Court determined that even if Santo’s had alleged a viable claim, coverage was further precluded by the “virus exclusion” in the coverage forms, which states:

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss…

i. Virus or Bacteria

(1) Any virus, bacterium, or other microorganisms that induces or is capable of inducing physical distress, illness or disease.

To this point, Santo’s argued that it was not the COVID-19 virus, but the Ohio Closure Orders that caused the loss, and that the exclusion is ambiguous because it does not specifically reference the term “pandemic.” The Court was not persuaded by these arguments since in its Complaint Santo’s acknowledged that the Closure Orders were issued due to the spread of the COVID-19 virus and the pandemic arose from the virus. It also relied upon the anti-concurrent causation language, which excludes damage caused “direct or indirectly” by the cited causes “regardless of any other cause or event that contributes” to it.

For these several reasons, the Santo’s Court held that no coverage existed under the particular policy.

Henderson Road Restaurant Systems, Inc., v. Zurich Am. Ins. Co., (Jan. 19, 2021), N.D. Ohio No. 1:20-CV-1239

In contrast, in Henderson, Judge Dan Polster granted the insured’s motion for summary judgment, finding that business interruption insurance coverage was available under virtually identical policy language and on the basis of the same arguments that Judge Barker had rejected in Santo’s. Specifically, the pertinent portion of the policy in Henderson reads:

Business Income Coverage Form

A. COVERAGE

We will pay for the actual loss of ‘business income’ you sustain due to the necessary ‘suspension’ of your ‘operations’ during the ‘period of restoration.’ The ‘suspension’ must be caused by direct physical loss of or damage to property at a ‘premises.’ … The loss or damage must be directly caused by a ‘Covered cause of loss.’”

The Henderson Court was receptive to the insured’s argument that ambiguity existed with regard to the phrase “direct physical loss of or damage to” property. Construing these ambiguities in favor of the insured, the Court agreed that the phrase could mean something other than “damage to” the real property because, otherwise, why would “physical loss of” and “damage to” appear side-by-side separated by the disjunctive conjunction “or”? Accordingly, the Court agreed that the insured could have “lost their real property” under the terms of the policy “when the state governments ordered that the properties could no longer be used for their intended purpose.”

Zurich, the insurer, argued  that coverage was otherwise barred by operation of the following “microorganisms” exclusion in the policy:

12. Microorganisms

We will not pay for loss or damage consisting of, directly or indirectly caused by, contributed to, or aggravated by the presence, growth, proliferation, spread, or any activity of ‘microorganisms,’ unless resulting from fire or lightning. Such loss or damage is excluded regardless of any other cause or event, including a ‘mistake’ or ‘malfunction,’ or weather condition, that contributes concurrently or in any sequence to the loss, even if such other cause or event would otherwise be covered.

However, the Henderson Court rejected this argument, stating: “Plaintiffs’ restaurants were not closed because there was an outbreak of COVID-19 at their properties; they were closed as a result of governmental orders.” The Court further noted the stipulation that none of Plaintiffs’ Insured Premises had been closed as a result of a known or confirmed presence of COVID-19 at any of the Insured Premises, and that the microorganisms exclusion “did not clearly exclude loss of property caused by a government closure.”

Future Appellate Activity in Ohio

The Santo’s and Henderson decisions addressing the question of the availability of business interruption insurance coverage for COVID-19 business shutdowns were each issued by the Ohio Northern District within a month of one another, but arrive at differing conclusions. Santo’s determined that business interruption coverage requires “structural” or “tangible” damage beyond “economic loss.” Henderson found that a “physical loss” occurs when a property cannot be used for its intended purposes during a pandemic-related shutdown. By the same token, one decided that government closure orders are sufficiently related to COVID-19 to fall under a virus exclusion, while the other found that an exclusion for microorganisms is inapplicable because the losses were caused by the government closure orders, as opposed to the virus itself.

Aware of this dichotomy, the Henderson court provided for interlocutory appeal of its coverage ruling.

Similarly, in Neuro-Communication Services Inc., etc., v. The Cincinnati Insurance Co., N.D. Ohio No. 4:20-CV-1275, yet a third case from the Ohio Northern District, Judge Benita Pearson issued the following certified questions of law to the Ohio Supreme Court:

Does the general presence in the community, or on surfaces at a premises, of the novel coronavirus known as SARS-CoV-2, constitute direct physical loss or damage to property; or does the presence on a premises of a person infected with COVID-19 constitute direct physical loss or damage to property at that premises?

Within the Order of Certification, Judge Pearson states that “Dozens, if not hundreds, of cases seeking coverage for losses related to the pandemic under policies similar or identical to that at issue in this case have been filed in both federal and state courts in Ohio,” and that “The certification procedure invoked here will allow the Supreme Court of Ohio to decide these questions and bring uniformity to the application of state law to these policies…”

In the meantime, insurers and insureds in Ohio must anxiously await the interpretation and resolution of these issues by the Sixth Circuit or the Ohio Supreme Court and the potentially far reaching implications they will have.

If you have questions related to this topic or need legal advice, please contact Michael Byrne (Cleveland, OH) mbyrne@mrrlaw.com, Doug Holthus (Columbus, OH) dholthus@mrrlaw.com, or Joe Nicholas (Cleveland, OH) jnicholas@mrrlaw.com at the law offices of Mazanec, Raskin & Ryder Co., L.P.A.

H.B. 352 Clarifies and Modifies Ohio’s Employment Discrimination Statutes

By Kathleen Minahan

On January 12, 2021, Governor DeWine signed into law H.B. 352 (the “Employment Law Uniformity Act”) which makes overdue changes and provides long-awaited clarifications to Ohio’s employment discrimination statutes.

Subject to two exceptions described below, an employee who wishes to pursue a claim for employment discrimination will now be required to exhaust administrative remedies by filing a charge of discrimination with the Ohio Civil Rights Commission within 2 years of the allegedly discriminatory practice.  A charge can be filed against an employer, an employment agency, personnel placement service, labor organization, or a person who is allegedly liable under R.C. 4112.02(I) (retaliation) or R.C. 4112.02(J) (unlawful employment practices or aiding/abetting discrimination).  The OCRC exhaustion requirement does not apply to employees who intend to pursue injunctive relief only, or to employees who timely filed a charge with both OCRC and EEOC and received a notice of right to sue from the EEOC.

The new law also reduces Ohio’s existing 6-year statute of limitations (for most employment discriminations claims) to a uniform 2-year statute.  However, the 2-year statute of limitations will be tolled by OCRC’s administrative proceedings from the date the charge is filed until no more than 60 days after the charge is no longer pending with the OCRC.

Additions to the Ohio Civil Rights Acts include an express adoption and codification of the Faragher/Ellerth defense from federal common law.  Thus, unless an employee experiences a tangible employment action, an employer may assert an affirmative defense to a hostile work environment sexual harassment claim (and apparently only a sexual harassment hostile work environment claim) by proving that: (1) the employer used reasonable care to prevent and promptly correct sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or failed to otherwise avoid harm.

Importantly, the new law supersedes the Ohio Supreme Court’s decision in Genaro v. Central Transp. Co., which held that a supervisor or manager could be held personally liable for discrimination as an “employer” under Section 4112.02.  The new law relieves supervisors, managers and employees from personal liability under Section 4112.02(A) through (F) unless the supervisor, manager or employee is also the employer.  However, personal liability is still a risk for supervisors, managers and other persons who act outside the scope of their employment, retaliate against an employee (R.C. 4112.02(I)) or aid, abet, coerce, compel or personally engage in an unlawful discriminatory practice (R.C. 4112.02(J)).

The new law makes the act’s statutory procedures and remedies the sole and exclusive procedures and remedies for employees who allege discrimination actionable under Chapter 4112; however, other statutory and common law claims that already can be brought against employers, supervisors, managers and employees remain unaffected, including public policy torts permitted by Collins v. Rizkana.

For more information on this legislation or other employment law questions, please contact Kathleen Minahan or David Smith directly, or call our Cleveland office at (440) 248-7906.

MRR Announces 2021 Ohio Super Lawyers & Rising Stars

Mazanec, Raskin & Ryder Co., L.P.A. is pleased to announce that seven attorneys have been selected to the 2021 Ohio Super Lawyers and Rising Stars lists. In the firm’s Cleveland office, Todd Raskin, John McLandrich, Frank Scialdone, and Jeffrey Kay earned Super Lawyer honors. In the Columbus office, Doug Holthus and Paul-Michael La Fayette were recognized as Super Lawyers, while Cara Wright was named a 2021 Ohio Rising Star. Each year, no more than five percent of lawyers in the state are named to the Super Lawyers list, and no more 2.5 percent are selected to the Rising Stars list.

 

Todd M. Raskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 39 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Mr. Raskin has earned his Super Lawyer rating 10 years in a row, beginning in 2012, for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

 

 

John T. McLandrich is a partner in the firm’s Cleveland office. His practice focuses on the representation of municipalities, including defending cases on behalf of police and public entities accused of violations of civil rights and in employment matters. For over 30 years John has handled matters including claims of jail suicide, police pursuit, false arrest, excessive force by police officers, and failure to properly train police officers. He has represented civil defendants in federal and state courts throughout Ohio, serving as lead trial counsel. He has represented clients in class action matters, including municipalities relating to class action sewer cases. His appellate experience consists of handling and arguing matters before the Sixth Circuit Court of Appeals, where he has argued over 100 cases, as well as hundreds of cases before many of Ohio’s Courts of Appeal, including the Ohio Supreme Court, where he has won eight favorable decisions. John has earned his 2021 Super Lawyer rating for his work in Civil Rights Law.

 

Frank H. Scialdone is a partner in the firm’s Cleveland office and focuses his practice on appellate advocacy in state and federal courts with an emphasis on employment law, constitutional torts (Section 1983), public entity defense, and insurance defense. He has handled more than 200 appellate cases in the Ohio Supreme Court, Ohio’s intermediate appellate district courts, and the Sixth Circuit Court of Appeals. He routinely consults with trial attorneys on error preservation and pre-appeal strategy. Frank has prosecuted and defended original actions (e.g., mandamus, prohibition, etc.) and has submitted amicus curiae (friend of the court) briefs on behalf of clients and organizations. He is one of the first attorneys to be certified as a specialist in appellate law by the Ohio State Bar Association. Frank has earned his 2021 Super Lawyer rating for his work in Appellate Law.

 

Jeffrey Kay, Administrative Partner for the firm’s Cleveland office, has been named 2021 Super Lawyer for his work in Civil Litigation: Defense. Mr. Kay represents insurance companies/risk pools and their insureds with respect to both first and third-party claims, including employment discrimination, professional liability, municipal liability, automobile negligence claims, general commercial matters, bad faith claims, uninsured/underinsured claims, products liability, wrongful death claims, commercial premises liability claims, and property and casualty claims. He also has significant experience counseling clients in insurance coverage matters, including the securing of declaratory judgments on policy interpretations. Mr. Kay has successfully handled cases before state and federal administrative agencies, with a focus on representing clients before the Equal Opportunity Employment Commission (EEOC) and the Ohio Civil Rights Commission (OCRC). He has achieved success on behalf of his clients before state and federal appellate courts, having successfully argued cases before most of the Ohio Appellate Circuit Courts.

 

Doug Holthus, Administrative Partner for the firm’s Columbus office, is listed as a 2021 Super Lawyer for his work in Civil Litigation: Defense. His primary areas of focus are professional negligence defense, employment, civil rights and government liability, construction claims litigation and general liability matters. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels in Ohio, Illinois and California, in both state and federal court. Among other professional and civic activities, Doug is actively involved as a volunteer for The Miracle League of Central Ohio, serves as a coach/advisor for the Bishop Watterson High School / Ohio High School Mock Trial Teams, is a Columbus Bar Foundation Fellow, is past-Chair of the Columbus Bar Association’s Professionalism Committee, and previously served as a Member of the Board of Directors of the Professional Liability Defense Federation.

 

Paul-Michael La Fayette is a partner in the firm’s Columbus office and concentrates his practice on professional liability defense, including the defense of dentists, physicians, real estate agents and attorneys. He represents professionals in administrative licensure proceedings before their professional Boards. In addition to professional liability, Paul regularly represents governmental entities in litigation and as general counsel. He has extensive experience in representing clients in lawsuits involving professional malpractice, premises liability, contracts, employment, construction, civil rights, zoning, wrongful death and products liability. Mr. La Fayette has earned his Super Lawyer rating 10 years in a row, beginning in 2012, for his work in Professional Liability: Defense, Civil Litigation: Defense, and State, Local & Municipal Law.

 

 

Cara M. Wright, a Senior Attorney in the Columbus office, represents counties, municipalities, and their employees in a variety of cases, including claims related to alleged violations of the United States Constitution, violations of Ohio’s public record laws, and state law tort claims. She has successfully defended clients in cases involving the use of deadly force, jail suicides, and claims that inmates were provided inadequate medical care while incarcerated in county jails. Cara also represents public and private employers in cases alleging employment discrimination. Additionally, her experience includes representing professionals, including physicians, nurse practitioners, nurses, behavioral health specialists, accountants and attorneys, in claims of professional negligence. In addition to her representation of clients in state and federal court, she has also appeared in cases before the Ohio Civil Rights Commission and the U.S. Equal Employment Opportunity Commission. Cara has earned the 2021 Rising Stars honor for her work in State, Local & Municipal Law.

 

Ohio Super Lawyers and Rising Stars have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. For more information about Super Lawyers, visit SuperLawyers.com.

MRR Receives National & Regional “Best Law Firms” Rankings by U.S. News – Best Lawyers® for 2021

MRR named "Best Law Firms" U.S. News – Best Lawyers® 2021

Mazanec, Raskin & Ryder Co. L.P.A. (MRR) has been recognized in the U.S. News – Best Lawyers® “Best Law Firms” rankings for 2021. The Ohio-based law firm received both national and regional Tier 3 rankings for Transportation Law, as well as regional rankings for other areas of practice.

Law Firms that are ranked by U.S. News – Best Lawyers® are presented in tiers, and are listed on a national and/or regional scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Mazanec, Raskin & Ryder Co. L.P.A. has been ranked for 2021 in the following National and Regional Tiers:

  • National Rankings
    • Tier 3 in Transportation Law
  •  Regional Rankings
    • Cleveland-OH
      • Tier 1 in Civil Rights Law
      • Tier 2 in Insurance Law
      • Tier 2 in Product Liability Litigation – Defendants
      • Tier 3 in Transportation Law
    • Columbus-OH
      • Tier 2 in Commercial Litigation
      • Tier 2 in Insurance Law
      • Tier 2 in Medical Malpractice Law – Defendants
      • Tier 2 in Personal Injury Litigation – Defendants
      • Tier 3 in Education Law
      • Tier 3 in Transportation Law

Now in its 40th year, Mazanec, Raskin & Ryder Co., L.P.A. serves clients throughout Ohio from offices in Cleveland and Columbus. The firm provides insurance defense, public sector law, business and commercial law, employment and labor law, workers’ compensation, and general litigation services to regional and national industry leaders, organizations, and individuals. 

Todd Raskin Featured in Super Lawyers® Article “Defending a Municipality from Section 1983 Lawsuits”

MRR Partner and Civil Rights Law expert, Todd M. Raskin, has defended civil rights claims for more than 30 years. In this week’s Super Lawyers® article “Defending a Municipality from Section 1983 Lawsuits,” he explains what municipalities should know about defending Section 1983 lawsuits and how civil rights claims proceed in Ohio.

Passed as a part of the Civil Rights Act of 1871, 42 U.S. Code § 1983—or, as it is more commonly referred to, “Section 1983”—is the main legal tool that individuals have to hold local governments and local government agencies legally liable for a civil rights violation. “It doesn’t create any substantive rights for anybody,” Raskin explains. “It’s a federal statute which provides a vehicle for people who claim that their constitutional rights have been violated.”

Read the full story here: https://www.superlawyers.com/ohio/article/defending-a-municipality-from-section-1983-lawsuits…

 

Todd M. Raskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 40 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Todd has earned his Super Lawyer rating for 9 years in a row, beginning in 2012, for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

COVID-19 / Immunity; Civil Liability Relief for Ohio Businesses and Others

Ohio H.B. 606 became law effective September 14, 2020. Equally important, the new law’s protections have been made retroactive to March 9, 2020 – the date of Governor Mike DeWine’s first Executive Order relating to the pandemic. The law provides businesses, schools and health care workers relatively broad and comprehensive civil immunity from liability for injuries allegedly related to COVID-19 exposures. The law is similar to others enacted in a growing number of jurisdictions. Under this new Ohio law, individuals, businesses, schools and health care providers generally cannot be held liable for injuries or deaths caused by the transmission of COVID-19 unless the complaining party can show that the alleged condition resulted from “reckless conduct or intentional misconduct or willful or wanton misconduct.” In this regard and among other defined terms, the new law provides the following: “reckless conduct” means a “heedless indifference to the consequences” of the risk of possibly causing an exposure to the COVID-19 virus.

If you have any questions about this update, you are invited to contact an attorney at Mazanec, Raskin & Ryder Co., L.P.A. for assistance.