Mealey's Coronavirus : Mealey's : Legal News & Analysis

Mealey's Coronavirus

July 12, 2023
Panel: Insured Faces ‘Solid Wall Of Precedent’ In Coronavirus Coverage Appeal

SAN FRANCISCO — A California appellate court affirmed a ruling in favor of a commercial property insurer in an Orange County restaurant owner insured’s breach of contract lawsuit arising from the coronavirus pandemic, finding that the insured “faces a solid ‘wall of precedent’ that holds that direct physical loss or damage requires physical alteration of the covered property.”
July 12, 2023
Insured Appeals Denial Of Leave To Amend Coronavirus Complaint

BALTIMORE — An insured notified a Maryland federal court that it is appealing the court’s denial of its motion for leave to file a second amended complaint to address the standard for physical loss that was provided by the Maryland Supreme Court in answer to a certified question in a coronavirus coverage dispute.
July 11, 2023
Minnesota Appellate Panel Upholds Governor’s COVID-19 Emergency Declaration

ST. PAUL, Minn. — A panel of the Minnesota Court of Appeals, on remand from the Minnesota Supreme Court, on July 10 affirmed a state court ruling dismissing the petition for writ of quo warranto of several state residents, businesses and churches seeking to prevent the enforcement of Gov. Tim Walz’s emergency order requiring Minnesotans to wear face coverings during the COVID-19 pandemic, concluding that the order was within the governor’s statutory powers.
July 11, 2023
Supplemental Briefing Timing Requested After Navy SEALs’ Vaccine Appeal Dismissed

NEW ORLEANS — A federal judge in Texas on July 10 requested that the parties in a vaccine mandate dispute submit their positions on the timing of supplemental briefing; the order came four days after a divided Fifth Circuit U.S. Court of Appeals panel, citing the rescission of the mandate, dismissed as moot an interlocutory appeal by Navy SEALs and members of the Navy who were denied religious exemptions from the Navy’s COVID-19 vaccination requirement, but left for the trial court to decide first whether any of the military members raised claims that are justiciable.
July 07, 2023
California Supreme Court Answers 2 Questions In COVID-19 Duty Owed Case

SAN FRANCISCO — The exclusivity provisions of the California Workers’ Compensation Act (WCA) do not bar a spouse’s tort claims against an employer; however, an employer does not owe a general duty of care to protect employees’ household members from the transmission of COVID-19, the California Supreme Court ruled July 6.
July 06, 2023
Small Businesses’ UCL Suit Against Bank For COVID Loans Sent To Arbitration

LOS ANGELES — A California federal judge granted Bank of America’s motion to compel arbitration of putative class claims brought against it by small business owners who accuse the bank of violating California’s unfair competition law (UCL) by inducing them to take out large Paycheck Protection Program (PPP) loans during the coronavirus pandemic by misrepresenting the restrictions on PPP loans.
July 06, 2023
Clarification Granted After University Pandemic Closure Pact Preliminarily Approved

WILMINGTON, Del. — A federal judge in Delaware on July 5 granted a request by the University of Delaware and students to modify the notice to class members regarding the settlement payout method in a preliminarily approved agreement that would end the students’ lawsuit seeking reimbursements after the school closed most campus buildings and switched to online learning due to the coronavirus pandemic.
July 03, 2023
Clarification Sought After University Pandemic Closure Pact Preliminarily Approved

WILMINGTON, Del. — The University of Delaware and students suing for reimbursements after the school closed most campus buildings and switched to online learning due to the COVID-19 pandemic filed a joint letter in a federal court in Delaware seeking clarification regarding a modification to the settlement payout method in an order granting preliminary approval of the $6.3 million class settlement agreement.
June 30, 2023
Pfizer Employee, Friend Indicted, Sued For Trading On Paxlovid Insider Information

NEW YORK — An employee of drugmaker Pfizer Inc. and his friend were indicted and sued for securities fraud on June 29 for allegedly using inside information about Pfizer’s Paxlovid COVID-19 treatment to profit off a stock bump after the drug’s approval was publicly announced.
June 28, 2023
Dismissal Of DUI Case Reversed By Tribe’s Appeals Court Due To Virus Closures

PABLO, Mont. — A Montana Indian tribe’s appellate court reversed the dismissal of a woman’s drunken driving charges for lack of a speedy trial, finding that the tribe had the authority to close the tribal court due to the COVID-19 pandemic and that the defendant “was not unduly burdened in the legal sense by any pandemic-related delays of her criminal trial.”
June 28, 2023
Challenge To CDC’s Travel Mask Mandate Brought By 21 States Voluntarily Dismissed

TAMPA, Fla. — Twenty-one states challenging the Centers for Disease Control and Prevention’s COVID-19 transportation mask mandate filed a notice of voluntary dismissal on June 27 after a separate appeal involving the mandate was resolved by the 11th Circuit U.S. Court of Appeals, which found that a previous challenge to the mandate was moot because the mandate had expired on its own terms.
June 28, 2023
Panel Rejects Insureds’ Contention That Loss Of Full Use Of Restaurants Is Covered

PHOENIX — The Ninth Circuit U.S. Court of Appeals predicted that the Arizona Supreme Court would follow the courts’ “overwhelming consensus” that an insured’s temporary loss of use of property is not covered by an insurance policy’s provision for “direct physical loss of or damage to property,” affirming a lower federal court’s dismissal of restaurant owner insureds’ breach of contract lawsuit seeking coverage for their business losses and extra expenses arising from the governmental regulations in response to the coronavirus pandemic.
June 28, 2023
Federal Judge Amends Scope, Certifies Class In Pandemic University Closure Suit

ATLANTA — A federal judge in Georgia partly granted a motion for class certification filed by the parent of an Emory University student in a lawsuit seeking money back after classes and services were impacted due to the coronavirus pandemic after modifying the proposed class definition as to the parent’s implied contract claim, concluding that common questions predominate regarding tuition paid.
June 28, 2023
Only Retaliation Claims Survive RLA Preemption In Pilots’ Suit Over Vaccine Mandate

BAY CITY, Mich. — Cargo airline pilots who filed a putative class complaint against their employer challenging a COVID-19 vaccine mandate may proceed only with two retaliation claims as the religious and disability bias ones are “minor disputes” preempted by the Railway Labor Act (RLA), a federal judge in Michigan ruled.
June 27, 2023
Insureds Appeal California Court’s Ruling In Insurer’s Favor In COVID-19 Dispute

LOS ANGELES — Insureds filed a notice appealing a Los Angeles County Superior Court’s judgment on a jury’s special verdict in favor of a commercial property insurer in a breach of contract coverage lawsuit arising from the coronavirus pandemic, challenging the jury’s finding that SARS-CoV-2 did not cause any direct physical loss or damage to the insureds’ hotel on or before June 1, 2020.
June 26, 2023
11th Circuit Panel: Challenge To Transportation Mask Mandate Is Moot

ATLANTA — A panel of the 11th Circuit U.S. Court of Appeals vacated a Florida federal judge’s ruling that the Centers for Disease Control and Prevention’s transportation mask mandate exceeded its statutory authority and violated the Administrative Procedure Act (APA) and instructed the district court to dismiss the case as moot, citing the expiration of the mandate in May.
June 26, 2023
5th Circuit: Government Can’t Impose Vaccine On Non-Federalized Guardsmen

NEW ORLEANS — The U.S. Constitution provides that only states have the power to punish non-federalized members of the National Guard who fail to comply with readiness requirements such a COVID-19 vaccine mandate, a Fifth Circuit U.S. Court of Appeals panel ruled, vacating a trial court’s order denying a motion for preliminary injunction filed by the governor of Texas in a case challenging the federal government’s August 2021 mandate as applied to Texas Guardsmen.
June 23, 2023
Insured Seeks Coverage For $14M In Losses Resulting From ‘COVID-19 Manifestations’

NEW YORK — The holding company for the U.S. interests of the Mandarin Oriental Hotel Group sued its “all risk” commercial insurers in a New York federal court, arguing that the “Special Perils Provision” in an endorsement of the policies provided coverage for its $14 million in business interruption/interference losses caused by infectious or contagious diseases that were “manifested by any person within a 5-mile radius of” its four hotels in Boston, New York, Miami and Washington, D.C.
June 23, 2023
Free Speech Suit By Parent Critical Of School COVID Policy Dodges Dismissal Motion

DETROIT — A Michigan federal judge on June 22 granted in part and denied in part a motion to dismiss by a Michigan school district and its board of education in a parent’s lawsuit against the board and two of its members for their responses to her criticism of the district’s COVID-19 policy, finding it plausible that an email sent to the U.S. Department of Justice (DOJ) by the board president could be determined to be a collective decision of the board but that the parent had not satisfactorily alleged that the board was aware of or sanctioned acts of the other board member.
June 23, 2023
Panel: Restaurants Allege Communicable Disease Event, Direct Physical Loss, Damage

LOS ANGELES — A California appeals panel held June 22 that restaurant insureds sufficiently asserted the existence of a covered communicable disease event and direct physical loss or damage under their property insurance policy, reversing a lower court’s judgment against the insureds in their breach of contract and bad faith coverage lawsuit arising from the COVID-19 pandemic.
June 20, 2023
PPP Recipient Says SBA Exceeded Statutory Authority In Denying Loan Forgiveness

AMARILLO, Texas — In an action brought by a truck dealer against the federal government seeking forgiveness for a Paycheck Protection Program (PPP) loan, the dealer moved for summary judgment, contending that the Small Business Administration’s (SBA) decision that the dealer was not initially eligible for a PPP loan and thus ineligible for loan forgiveness exceeded and was contrary to its statutory authority.
June 14, 2023
N.J. Panel Affirms Ruling In Insurers’ Favor In Coronavirus Coverage Suit

TRENTON, N.J. — A New Jersey appeals court on June 13 affirmed a lower court’s grant of summary judgment in favor of primary and excess insurers in insureds’ lawsuit seeking coverage for its business losses arising from governmental orders closing the operation of their boardwalk amusement and entertainment businesses in response to the coronavirus, finding that the insureds did not satisfy the coverage prerequisite that they incurred “direct physical loss or damage” to their property and coverage is separately barred under the policies' pollution/contamination exclusion.
June 13, 2023
Split 10th Circuit: Ski Resort Passholders May Refile Claims For COVID-19 Closure

DENVER — A split 10th Circuit U.S. Court of Appeals panel affirmed in part and vacated in part a federal court’s dismissal of season passholders’ lawsuit against ski resort owners for refusing to refund their purchases after abruptly ending the season due to COVID-19, finding that while the resort-owners’ contracts prohibit refunds, the passholders may refile several claims, including for violation of California’s unfair competition law (UCL), to seek “relief not expressly barred by the contracts.”
June 13, 2023
Florida Panel: Tribe Not Shown To Have Waived Immunity From COVID-Related Tort Claim

WEST PALM BEACH, Fla. — A Florida appellate court granted the Seminole Tribe’s petition to prohibit a trial court from proceeding with a negligence claim brought by a patron who said he contracted COVID-19 at the tribe’s casino, finding that the patron failed to demonstrate that the tribe waived sovereign immunity because the patron failed to follow the pre-suit procedures laid out in the compact in which the tribe waived its sovereign immunity for tort claims committed at its gaming facilities.
June 08, 2023
Health Supply Company Seeks Default Judgment In Suit For Undelivered COVID Tests

MIAMI — A Pennsylvania health and safety supply company that sued a Florida personal protective equipment dealer for breach of contract and quantum meruit/unjust enrichment and sought to recover a $225,000 deposit the supply company paid toward a $5.5 million order for undelivered COVID-19 home antigen tests moved June 7 for default judgment after the dealer’s counsel withdrew from the case and was not replaced by the date required by a Florida federal court.