By Lauren Berg

Law360 (May 21, 2021, 5:55 PM EDT ) A Florida federal judge Thursday tossed a Fort Lauderdale shopping mall's suit seeking to force Great American Insurance to cover its pandemic-related losses, finding COVID-19 is not a pollutant under the policy, but said the mall can rewrite its complaint.

In a brief order, U.S. District Judge Robert N. Scola Jr. granted Great American E&S Insurance Co. Inc.'s motion to dismiss Coral Ridge Shopping Center's complaint, rejecting the mall's argument that its losses should be covered because COVID-19 falls into the pollutant category under the policy.

"This vague allegation is insufficient to state a claim as it does little to explain the basis for coverage," the judge said.

In his suit, Andrew D. Gumberg, who owns and operates Coral Ridge, said his mall was closed from March 23, 2020, until it was allowed to partially reopen in May 2020 in an effort to stop the spread of COVID-19. Gumberg said he incurred damages as a result of the government-mandated closure.

On April 8, 2020, Gumberg filed a claim with Great American for business interruption, loss of income, property damages and service interruption as a result of COVID-19 under the policy's pollution condition clause, according to the order. But Great American denied the claim on May 13, 2020.

Gumberg filed the complaint in August 2020, which Great American then moved to dismiss in September, arguing that COVID-19 doesn't constitute a pollution condition under the policy, according to the order. But even if it did, Great American said, coverage would still be barred by the communicable disease exclusion.

Gumberg hit back, though, saying the policy doesn't define the categories that make up the definition of a pollutant and that COVID-19 should be covered under at least one of the categories, according to the order. He also argued that the virus qualifies as a pollutant because it can be defined as a biological agent.

But on Thursday, Judge Scola disagreed with Gumberg, finding that he hasn't sufficiently alleged that there is coverage for COVID-19 as a biological agent because he hasn't shown the virus was deliberately released with the intent to cause injury.

"The court notes that Gumberg argues that Covid-19 was deliberately spread at the shopping center, however, the complaint is silent as to this point," the judge said.

The judge granted Great American's motion to dismiss, but will allow Gumberg to file an amended complaint by June 3.

Representatives for the parties did not immediately respond to requests for comment Friday.

Judges around the country for the most part have tossed coronavirus-related insurance coverage cases, with some cases reaching the appellate realm.

Earlier this week, Cincinnati Insurance Co. notched a win in Vermont after a federal judge tossed a dental clinic's proposed class action seeking COVID-19-related loss coverage, while a Florida steakhouse urged the Eleventh Circuit to revive its lawsuit seeking COVID-19 business interruption coverage.

In March, Travelers Casualty Insurance Co. of America beat a San Diego jewelry store's lawsuit, while a Michigan federal judge said a winery can't squeeze the Cincinnati Insurance Co. for virus coverage because the coronavirus didn't cause any physical loss or damage.

Coral Ridge Shopping Center is represented by Richard L. Allen of Krinzman Huss Lubetsky Feldman & Hotte.

Great American is represented by Ronald L. Kammer and Melissa A. Gillinov of Hinshaw & Culbertson LLP.

The suit is Andrew D. Gumberg v. Great American E&S Insurance Co. Inc., case number 1:20-cv-23541, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Daphne Zhang and Joyce Hanson. Editing by Ellen Johnson.

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