EAST ST. LOUIS – Courts in Illinois and six other states have found Cincinnati Insurance policies don’t cover lockdown losses, according to a brief the insurer filed at U.S. district court on Dec. 7.
Cincinnati counsel Brian Reid of Chicago offered the rulings in support of a motion to dismiss a claim from 4204 Main Street Brewing Company in Belleville.
His list showed district courts in Eastern Pennsylvania and Kansas upheld Cincinnati’s position on Dec. 3.
It showed district courts in Northern Illinois and Southern West Virginia upheld Cincinnati’s position in November, and so did a Florida state judge.
It also showed district courts in Northern Illinois, Northern Texas, and Iowa upheld Cincinnati’s position in September and October.
Reid found no value in four rulings the restaurant offered, stating that two involved hail, one involved split decisions between judges, and Cincinnati appealed one.
Ted Gianaris of John Simmons’s firm in Alton filed suit for the restaurant in August, claiming its policy covered lost income and extra expense.
He also asserted coverage under a policy provision for crisis events.
Cincinnati moved to dismiss the suit in October, claiming its policy protected the restaurant only for losses tied to property damage.
The motion to dismiss says the restaurant “asks for a vast extension of Illinois insurance law that would create coverage from whole cloth.”
“The requirement of direct physical loss is a core element in property insurance policies like the policy at issue,” Reid wrote.
“There is no allegation that the presence of the virus resulted in direct physical loss to property.
“Indeed, there is not even an allegation that coronavirus is known to have been present at plaintiff’s property.”
He listed four favorable decisions from July through September, and wrote that the restaurant didn’t allege a crisis event.
Gianaris opposed the motion on Nov. 25, claiming Cincinnati lost at least four cases involving the same policy language.
His list showed a decision from district court in Western Missouri in August and a decision from a North Carolina state court in October.
It showed two decisions from the Western Wisconsin district, both in 2015 and both under Wisconsin law.
“The clear conclusion from these four cases is that defendant’s general business income coverage covers all business loss sustained by direct physical loss or damage caused or resulting from any risk of direct physical loss,” Gianaris wrote.
“Fifth time is not a charm.
“The existence of coronavirus throughout Illinois, and the world, triggers the coverage.
“On further reflection, plaintiff dismisses its crisis event coverage claim.”
Reid replied that Cincinnati has not, in fact, lost “at least four cases” that provide any guidance for the evaluation of Cincinnati’s motion to dismiss.
He wrote that Kansas district court held that claims failed because the policy unambiguously required more than diminution of value or impairment of use.
He also wrote that Cincinnati filed notice that it would appeal the decision of the North Carolina state court.
He wrote that a lack of persuasiveness in the Western Missouri decision was demonstrated by a contrary decision from the same district court on Dec. 2, and that the Western Wisconsin decisions concerned hail damage to roofing.
District Judge David Dugan has set trial Dec. 6, 2021.