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Law360 (January 13, 2021, 4:03 PM EST ) A Texas federal judge has shot down a dentist's suit seeking coverage for losses she claims to have sustained as a result of COVID-19 shutdown orders, saying while the "physical loss" required to trigger the policy doesn't need to be structural damage, she still would need to allege the virus was actually present in the office.
In an order filed Tuesday, U.S. District Judge Sidney A. Fitzwater granted a bid by Aspen American Insurance Co. to dismiss Christie Jo Berkseth-Rojas DDS' suit over coverage, saying that without alleging that her office was actually contaminated, the policy isn't triggered. The judge gave Berkseth-Rojas leave to amend the complaint, however.
While Berkseth-Rojas, who runs Rojas Family Dental in Minneapolis, alleges that she took steps to minimize the risk of infection and spread — such as installing plexiglass barriers around the reception desks — and that she lost some use of her office, these don't constitute physical losses or damage, the judge said.
"Dr. Berkseth-Rojas has only alleged loss of use and function of her dental practice," Judge Fitzwater wrote. "She has not asserted that her property has been actually contaminated by COVID-19; therefore, under Minnesota law, she has not sufficiently alleged that she suffered direct physical loss or damage to trigger coverage under the policy."
The Minneapolis dental office hit Aspen with a proposed class action after the carrier denied coverage for her business losses stemming from government closure orders in March. In September, Aspen urged the federal court to follow the "daily-growing" number of rulings that have said insureds need to show their property was tangibly altered to claim physical damage.
And in November, Berkseth-Rojas pushed back on the call for dismissal, saying that a greater number of courts have axed insurers' dismissal motions in suits involving policies that don't contain a virus exclusion like the one her office held.
In Tuesday's order, Judge Fitzwater also tossed Berkseth-Rojas' claims for breach of contract, saying they're premised on the claims that Aspen wrongly denied her coverage and fail for the same reasons.
"While we're obviously disappointed that Judge Fitzwater dismissed our complaint, in doing so, he actually provided us with a clear amendment roadmap, which we intend to successfully follow as we amend and continue the prosecution of our claims against Aspen for its reprehensible refusal to honor its contractual obligations to its policyholders," Adam J. Levitt of DiCello Levitt Gutzler LLC, representing Berkseth-Rojas, told Law360 on Wednesday.
An attorney for Aspen declined to comment.
The dental office is represented by Adam Levitt, Mark A. DiCello, Kenneth P. Abbarno and Mark Abramowitz of DiCello Levitt Gutzler LLC, W. Mark Lanier, Ralph D. McBride and Alex J. Brown of The Lanier Law Firm PC, Timothy W. Burns, Jeff J. Bowen, Jesse J. Bair and Freya K. Bowen of Burns Bowen Bair LLP and Douglas Daniels of Daniels & Tredennick.
Aspen is represented by Yvette Ostolaza, Yolanda C. Garcia and Mason Parham of Sidley Austin LLP.
The case is Christie Jo Berkseth-Rojas DDS v. Aspen American Insurance Co., case number 3:20-cv-00948, in the U.S. District Court for the Northern District of Texas.
--Additional reporting by Daphne Zhang. Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
