In a motion filed Thursday, the insurance company said the differences between each state's COVID-19 shutdown orders, as well as the specific circumstances of each dentist plaintiff, would need to be individually analyzed by the court. The court should instead treat named plaintiff Mark Germack's claims individually, it said.
"There is simply no way that the court can determine the amount of damages that each dentist insured by TDIC suffered as a result of the COVID-19 related partial closures without an individual assessment of the complete financial records of each individual dentist/insured," the insurer said.
Germack's suit, like many others filed since cities and states around the country issued stay-at-home orders to stem the spread of COVID-19, alleges that TDIC intended to wrongfully deny coverage of business losses related to those shutdowns.
In the class action complaint, Germack 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.
The insurance company on Thursday, however, said there are far too many individual inquiries for the case to work as a class action. While some states and cities completely shut down dental operations, others ordered partial shutdowns, while still others only recommended that offices close.
The court would also have to analyze the terms of each dentist's policy and each state's insurance laws to determine coverage, TDIC told the court, saying some states put the burden of proof of coverage on the insured, while others do not. Further, not every plaintiff had the same experience: Some, like Germack, did not put in an actual claim for coverage, TDIC wrote, while others may have submitted a formal claim that could have misrepresented material facts.
In addition, TDIC argued that the question of damages would also require individual inquiry. Its clients include very busy dentists with multiple offices as well as those with smaller, more modest practices, so the amount of lost income would greatly vary among class members.
"Dr. Germack is one of hundreds of small businesses shut down because of government public health mandates," Ian S. Birk of Keller Rohrback LLP, representing Germack, told Law360 on Friday. "All of these small business owners are in the same predicament. Dr. Germack's insurance company covered the risk of business interruption for them on the same basic terms, and that same company has uniformly and consistently denied their claims for coverage based on the same incorrect arguments."
An attorney for TDIC declined to comment.
TDIC is represented by Eric J. Neal and Thomas Lether of Lether Law Group.
Germack is represented by Ian S. Birk, Lynn L. Sarko, Gretchen Freeman Cappio, Irene M. Hecht, Maureen Falecki, Amy Williams-Derry, Nathan L. Nanfelt and Alison Chase of Keller Rohrback LLP.
The case is Germack v. The Dentists Insurance Co., case number 2:20-cv-00661, in the U.S. District Court for the Western District of Washington.
--Editing by Steven Edelstone.
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