By Hailey Konnath

Law360 (February 19, 2021, 8:27 PM EST ) A slew of dentist and orthodontic offices battling insurers over COVID-19 coverage told a Washington federal judge Thursday they wanted the state's Supreme Court to chime in on common state law questions underlying their disputes, arguing that kicking the questions to the court would save time and resources.

Dentist Mark Germack DDS has been sparring with The Dentists Insurance Co. since last year, alleging the insurer wrongfully denied business interruption claims stemming from the pandemic. Meanwhile, TDIC has maintained that COVID-19 didn't trigger the "physical damage or loss" clauses in business interruption insurance, and Germack hasn't alleged the virus is even present in his office.

In an omnibus motion filed Thursday, Germack teamed up with a long list of dentists, orthodontists and dental specialists in the midst of similar spats with insurers in seven cases in the Western District of Washington. A Washington state restaurant and the Seattle Symphony Orchestra are also listed as plaintiffs in the suits.

The plaintiffs urged U.S. District Judge Barbara J. Rothstein to certify two questions of state law to the Washington State Supreme Court, arguing the matters are not clearly determined under existing law. In particular, they said the high court should determine whether being physically deprived of the ability to use covered property as a result of government shut-down orders constitutes a "direct physical loss" of property.

They also asked whether the state's efficient proximate cause rule requires a factual determination of the predominant cause of business losses before a virus exclusion could be applied to block that coverage.

"Certification to the state court of last resort would be a more direct means of obtaining a binding answer on state law," the plaintiffs said in their motion.

Ian Birk, counsel for a number of the dentists and orthodontists in several of the cases, told Law360 on Friday there are several cases over the same issue pending in the state court.

"The Washington Supreme Court is eventually going to get to this issue," he said. "And we think there's efficiency there."

The other insurers listed in the cases include Aspen American Insurance Co., Valley Forge Insurance Co., Massachusetts Bay Insurance Co. and Travelers Casualty Insurance Co. of America, among others.

Germack's proposed class action, like many others filed since cities and states around the country issued stay-at-home orders to stem the spread of COVID-19, alleges TDIC intended to wrongfully deny coverage of business losses related to those shutdowns.

In his April 2020 suit, he alleged the insurer was issuing blanket denials of coverage to all claimants and the issue was ripe for class certification based on the common circumstances.

TDIC has argued there are far too many individual questions for the case to work as a class action. In September, TDIC lodged a motion for summary judgment in its favor, saying Germack wasn't even required by the government's orders to completely shut down but could still perform emergency services, and so he can't claim he was subject to a "necessary suspension of operations" or prohibited from using or entering his building.

And even if Germack established that his coverage would have been triggered, his policy includes a virus or bacteria exclusion that bars coverage for losses stemming from the "presence, growth, proliferation, spread or any activity of a virus," the insurer said.

Judge Rothstein hasn't yet ruled on the summary judgment motion.

Counsel for the insurers didn't immediately return requests for comment Friday.

The dentists, orthodontists, restaurant and symphony are represented by Ian S. Birk, Lynn L. Sarko, Gretchen Freeman Cappio, Irene M. Hecht, Amy Williams-Derry, Nathan L. Nanfelt and Alison Chase of Keller Rohrback LLP, Matthew B. Edwards of Owens Davies PS, William C. Smart, Isaac Ruiz and Kathryn M. Knudsen of Ruiz & Smart PLLC, Brent W. Beecher of Hackett Beecher & Hart, Shannon Loyd of The Loyd Law Firm PLLC, and Mark A. Wilner, Franklin D. Cordell and Kasey D. Huebner of Gordon Tilden Thomas & Cordel LLP.

The insurers are represented by Eric J. Neal, Thomas Lether, Westin McLean and Kasie Kashimoto of the Lether Law Group, Robin E. Wechkin, Yvette Ostolaza and Yolanda C. Garcia of Sidley Austin LLP, Anthony Todaro and Lianna Bash of DLA Piper LLP, H. Christopher Boehning, Elizabeth M. Sacksteder, Daniel H. Levi and Hallie S. Goldblatt of Paul Weiss Rifkind Wharton & Garrison LLP, Matthew S. Adams of Forsberg & Umlauf PS, James R. Morrison of Baker & Hostetler LLP, Cari K. Dawson and Kara F. Kennedy of Alston & Bird LLP, Daniel R. Bentson, John A Bennett and Stuart D Jones of Bullivant Houser Bailey PC, Stephen E. Goldman and Wystan M. Ackerman of Robinson & Cole LLP, and Antonia B. Ianniello and Darlene K. Alt of Steptoe & Johnson LLP.

The cases are Mark Germack v. The Dentists Insurance Co., case number 2:20-cv-00661; Wade Marler v. Aspen American Insurance Co., case number 2:20-cv-00616; Kara McCulloch DMD MSD PLLC v. Valley Forge Insurance Co., case number 2:20-cv-00809; Carlos Caballero v. Massachusetts Bay Insurance Co., case number 3:20-cv-05437; Mario Chorak v. Hartford Casualty Insurance Co., case number 2:20-cv-00627; Pacific Endodontics PS v. Ohio Casualty Insurance Co., case number 2:20-cv-00620; Jennifer Nguyen et al. v. Travelers Casualty Insurance Co. of America et al., case number 2:20-cv-00597; and La Cocina de Oaxaca LLC v. Tri-State Insurance Co. of Minnesota, case number 2:20-cv-01176, all in the U.S. District Court for the Western District of Washington.

--Additional reporting by Mike Curley. Editing by Philip Shea.

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