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Law360 (September 4, 2020, 2:14 PM EDT ) A SCOR SE subsidiary has urged a Florida federal court to toss a landmark theater's proposed class action seeking coverage for pandemic loss, saying the theater failed to allege physical damage and the policy's microorganism, pollutant, and biological exclusions bar coverage.
General Security Indemnity Co. said Thursday that Actors Playhouse Productions Inc., which operates the Miracle Theatre in Coral Gables, Florida, failed to present any evidence of direct physical loss or damage or that its staff lost access to the theater due to COVID-19 or related government closure orders.
The insurer claimed that COVID-19 is a microorganism, pollutant, and biological agent, losses from which are excluded by its policy. The theater's position that physical loss also means loss of use fails because its alleged losses were "solely economic in nature," the carrier added. General Security's parent company SCOR filed a separate motion on the same day adopting General Security's position and adding that it didn't issue the policy in question and should be dismissed from the case.
Actors Playhouse Sued SCOR and General Security in July, seeking recovery for revenue loss from government closure orders related to the pandemic. The theater has argued that it experienced a loss of functionality, which should be interpreted as physical damage, after it was forced to close by state-mandated orders in March.
On Thursday, General Security said the theater only stated that COVID-19 damaged its property without showing how and when the alleged physical damage happened or that any of its property needed to be "repaired, rebuilt, or replaced" as required by the policy.
The insurer said that its policy only covers business income and extra expense losses incurred during the "period of restoration" caused by physical damage or loss, which means that "there has to be something that physically alters the integrity of the property. There has to be some tangible."
Additionally, General Security said, under Florida law, an object or property suffers no loss if it can be cleaned. So a virus that is invisible to the human eye and can be disinfected and cleaned effectively, does not cause physical loss or damage, it said.
The carrier also contended that there is no evidence that government closure orders were issued due to physical damage to the theater's property. The orders were put in place to create social distancing and slow the spread of COVID-19 and only restricted public access to the theater, not its employees, General Security said.
Representatives for the parties could not be immediately reached for comment.
Actors Playhouse is represented by Steven C. Marks, Aaron S. Podhurst, Lea P. Bucciero, Matthew P. Weinshall, Kristina M. Infante and Pablo Rojas of Podhurst Orseck PA and Stephen N. Zack, Bruce Weil, James Lee, Marshall Dore Louis, David Boies, Nick Gravante and Alex Boies of Boies Schiller Flexner LLP.
General Security and SCOR SE are represented by Armando Pedro Rubio of Fields Howell.
The case is Actors Playhouse Productions Inc. et al. v. SCOR SE et al., case number 1:20-cv-22981, in the U.S. District Court for the Southern District of Florida.
--Editing by Alyssa Miller.
Correction: a previous version of the story misstated the party filing for dismissal. The error has been corrected.
For a reprint of this article, please contact reprints@law360.com.
