Until an Oct. 28 verdict by a Missouri federal jury, an overwhelming majority of state and federal court judges have disposed of cases brought by policyholders contending the presence of the coronavirus caused covered physical loss or damages to their properties.
The verdict against KC Hopps ended the first jury trial on a business' claim for pandemic-related losses. KC Hopps' case made it to trial after Cincinnati's motion to dismiss was denied by U.S. District Judge Stephen Bough, who also has rejected insurers' dismissal bids in several other COVID-19 business interruption cases.
Pillsbury Insurance Recovery & Advisory senior counsel Scott Greenspan told Law360 that getting KC Hopps' case in front of a jury was a victory for policyholders.
"The trial demonstrates that juries, not judges, should be deciding and are well-equipped to adjudicate the complex, scientific facts at play in these cases," Greenspan said. "For 245 years in our country, juries, not judges, have been deciding the facts."
Greenspan added: "Too many judges, in what appears to be a response to the insurance industry's false cries of impending bankruptcy while reaping record profits from their COVID-19 denials of coverage and skyrocketing premiums, seem to have forgotten that and have improperly decided facts on motions to dismiss.”
Greenspan pointed out that KC Hopps provided scientific testimony demonstrating the virus was present at its properties based on employees who contracted the virus as well as the prevalence of the virus in local communities. He also noted, however, that, at the time, there was no commercially available test for the presence of virus on the premises.
According to Greenspan, the "big problem KC Hopps faced" was Judge Bough's "last-minute" decision to essentially apply the policy's "law or ordinance" in his jury instructions, "which appeared to require the jury to find for Cincinnati if any of the losses were caused in any way in whole or even in part by the government shutdowns."
"This was a profound error because the exclusion does not apply as these government edicts were not laws or ordinances passed by a legislative body and to apply the exclusion would nullify the civil authority coverage," Greenspan said.