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Law360 (July 29, 2020, 9:08 PM EDT ) A group of Lloyd's underwriters has asked to send two pizza companies' COVID-19 coverage suit to Florida, telling a New York federal court that the companies suing are based in the Sunshine State as are the agents who sold them their commercial property insurance policies.
The Lloyd's of London insurers argued Wednesday before the New York court that the Florida-based lead plaintiffs in the proposed class action, Gio Pizzeria & Bar Hospitality LLC of Coral Springs and Gio Pizzeria Boca of Boca Raton, are merely engaging in forum shopping.
The pizzeria companies claim their case should be heard in New York only because their policies provide that service of a complaint should go to London-based Lloyd's service agent, "who happens to be in New York," the underwriters say in their motion to transfer venue.
But the truth, according to the underwriters, is that the two policies delivered to the Gio Pizzeria companies were issued by a Floridian producing agent and a Floridian surplus lines agent. And the pizzeria companies don't like their odds of winning in Florida federal court because five other COVID-19 cases pending there may hurt their chances of prevailing on the argument that government closure orders triggered their policies' "civil authority" coverage, the underwriters say.
"Plaintiffs' filing in this court is nothing more than transparent forum shopping," the underwriters argue. "The critical witnesses and evidence regarding are located in South Florida. The Southern District of New York's connection with this dispute is nonexistent. Further, transfer to the Southern District of Florida will allow this matter to proceed in coordination with the five currently pending putative class actions against members of the Lloyd's, London insurance market, arising out of COVID-19."
The Gio case stems from Lloyd's underwriters' denial of coverage after the plaintiffs were forced to reduce business at their Nick's pizzerias due to the COVID-19 pandemic and resultant orders issued by civil authorities in Florida mandating the suspension of business for on-site services.
Attorneys from DiCello Levitt Gutzler LLC filed the suit April 17 on behalf of the two Gio Pizzeria companies, joining the Lanier Law Firm PC, Burns Bowen Bair LLP and Daniels & Tredennick in launching class action suits against six insurance companies in federal courts over their denials of coverage for businesses shut down because of the coronavirus outbreak.
The complaints target Certain Underwriters at Lloyd's, London in New York, Society Insurance in Wisconsin, Auto-Owners Insurance Co. in Ohio, Topa Insurance Co. in California, Oregon Mutual Insurance Co. in Oregon, and Aspen American Insurance Co. in Texas, the attorneys announced in an April 17 press release.
In each case, the businesses, which include the pizzerias, bakeries, taverns, restaurants, nightclubs and bridal retailers, allege they paid premiums to the insurance companies for business interruption insurance for situations in which they could be forced to close through no fault of their own, but their claims have been denied.
Adam Levitt of DiCello Levitt Gutzler LLC, a lawyer for the Gio Pizzeria companies, on Wednesday shot down the underwriters' bid to transfer venue, telling Law360 in an email that the suit is lodged in the proper court.
"Our complaint and the underlying facts speak for themselves. We filed our case in the correct venue," Levitt wrote. "It would be helpful if defendants, instead of playing procedural games in an effort to confuse, attenuate, and frustrate the litigation process, would actually step up and honor their substantial contractual obligations to our clients and the other class members."
Counsel for the Lloyd's underwriters could not immediately be reached for comment Wednesday.
The Gio Pizzeria plaintiffs are represented by Adam Levitt, Mark DiCello and Ken Abbarno of DiCello Levitt Gutzler LLC.
The underwriters at Lloyd's are represented by Peter J. Fazio of Aaronson Rappaport Feinstein & Deutsch LLP.
The case is Gio Pizzeria & Bar Hospitality LLC et al. v. Certain Underwriters at Lloyd's, London, case number 1:20-cv-03107, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Mike Curley. Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
