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

Mealey's Coronavirus

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.
June 06, 2023
California Judge Enters Judgment On Special Jury Verdict In Insurer’s Favor

LOS ANGELES — A Los Angeles County Superior Court judge entered judgment on a jury’s special verdict in favor of a commercial property insurer in the insureds’ breach of contract coverage lawsuit arising from the coronavirus pandemic after the jury found last month that SARS-CoV-2 did not cause any direct physical loss or damage to the insureds’ hotel on or before June 1, 2020.
June 06, 2023
Judge Dismisses Tulane’s Suit Seeking Coverage For Losses Arising From Coronavirus

NEW ORLEANS — Three days after the administrators of the Tulane Educational Fund filed a stipulation of dismissal, a federal judge in New Orleans on June 5 dismissed the fund’s declaratory judgment and bad faith lawsuit seeking coverage for its medical catastrophe expense (MCE) claim and evacuation expenses (EE) resulting from the COVID-19 virus.
June 05, 2023
Federal Employee Union Seeks Summary Judgment In Vaccine Mandate Suit

GALVESTON, Texas — A federal employee union that sued the president and other federal officials over a September 2021 executive order (EO) requiring federal workers be vaccinated against COVID-19 or obtain a religious or medical exemption to retain employment filed a reply brief on June 3 in a federal court in Texas supporting their motion for partial summary judgment and permanent injunctive relief.
June 05, 2023
Health Care System Insured Fails To State Claim Above $1M Already Received, Panel Says

CHICAGO — The Seventh Circuit U.S. Court of Appeals on June 2 held that a Wisconsin-based health care system insured did not state a claim for coverage beyond the $1 million it already received under its all-risks insurance policy’s limited coverage provision for communicable diseases, affirming a lower court’s ruling in favor of the insurer in a coverage dispute over the insured’s alleged $85 million in losses arising from the coronavirus pandemic.
June 05, 2023
Case Management Order Issued In $8M Aetna Fraud Suit Against COVID Test Provider

GREENBELT, Md. — A Maryland federal magistrate judge on June 5 issued an order requiring parties to obtain consent before filing any motion in Aetna’s insurance fraud, unjust enrichment and negligent misrepresentation suit against a testing supplies provider and related parties, asserting that they participated in a scheme to improperly bill Aetna for more than $8 million for over-the-counter (OTC) COVID-19 testing supplies, resulting in higher reimbursements from Aetna’s Employee Retirement Income Security Act plans.
June 02, 2023
No Coverage Owed For Horse Racing Track Owner’s COVID-19 Losses, Panel Affirms

PHOENIX — The Ninth Circuit U.S. Court of Appeals on June 1 affirmed a lower federal court’s dismissal of a horse racing track owner’s lawsuit seeking coverage for its losses arising from the coronavirus pandemic, finding that the contamination exclusion unambiguously bars coverage.
May 31, 2023
Seattle Jury Issues Verdict For Nursing Home In Negligence Suit Over COVID Deaths

SEATTLE — A Washington federal court jury issued a verdict in favor of a nursing home sued by two estates representing decedents who died in 2020 after contracting COVID-19 at the facility, finding that while the nursing home acted negligently regarding its care of one of the decedents, neither estate representative proved that its negligence caused injuries to the estate representatives or decedents.
May 31, 2023
California Panel: Insured’s Direct Physical Loss Claims Are ‘Mere Legal Conclusions’

SAN DIEGO — A California appeals panel on May 30 affirmed a lower court’s grant of a commercial property insurer’s motion for judgment on the pleadings in a coverage dispute arising from the coronavirus pandemic, finding that it is clear that the causes of the insured’s business losses are not attributable to the presence of the coronavirus on its premises but are the purported result of “certain government orders, community infection, and assumption that the virus is ubiquitous.”
May 31, 2023
BYU Student Seeks Rehearing After Class Cert Denial In Pandemic Case Upheld

DENVER — A Brigham Young University (BYU) student filed a petition for rehearing after a divided 10th Circuit U.S. Court of Appeals panel ruled that a trial court “acted within its discretionary bounds” when it denied class certification in the student’s lawsuit over the school’s failure to provide partial refunds of tuition and fees after classes were switched to online-only during the coronavirus pandemic.
May 31, 2023
Music School, Student Seek To Settle Pandemic Closure Class Suit For $399,999

NEW YORK — A federal judge in New York granted preliminary approval of a $399,999 class settlement in a complaint brought by a student of The Manhattan School of Music (MSM) after the school halted in-person classes due to the coronavirus pandemic.
May 31, 2023
University Agrees Florida High Court Should Review Sovereign Immunity Appeal

TALLAHASSEE, Fla. — The University of Florida’s board of trustees, which concurs in a graduate student’s request that the Florida Supreme Court accept discretionary review of a sovereign immunity question in pandemic closure putative class case, filed a third notice of supplemental authority concerning a recent opinion by a state appellate court panel.
May 26, 2023
Library: Trial Court Properly Found No ADA Violations In Masking Policy Challenge

SAN FRANCISCO — In a library patron’s appeal of a Washington federal judge’s dismissal of a city and its police officers and grant of summary judgment to a library district in the patron’s claim of Americans with Disabilities Act (ADA) and other civil rights violations stemming from the patron’s refusal to wear a mask in a library and the response of the police and library staff, the library district filed its answering brief, arguing that the district court correctly ruled that the patron failed to establish all the necessary elements of a successful ADA claim.