Brunch Restaurant Chain Loses COVID-19 Insurance Suit in Florida Federal Court

Author: Ross Dwyer

Guest Editor: Ashley Kaye

March 1, 2021 8:15pm

First Watch Restaurants (“First Watch”) owns a popular chain of brunch restaurants throughout Florida and 28 other states.  In a lawsuit entitled First Watch Restaurants, Inc. v. Zurich American Insurance Company, First Watch alleged it suffered business interruption losses caused by the COVID-19 pandemic, and its insurer, Zurich American Insurance Company (“Zurich”), wrongfully refused to…

To Zoom or Not to Zoom…That is the Question.

Author: Brianna Andrade

Guest Editor: Ashley Kaye

March 1, 2021 12:48pm

March 2021 marks the year anniversary that jury trials seemingly ceased to exist as we once knew them – that is, before COVID-19 abruptly shifted the courtroom.  In the past year, jury trials have been ridden with unpredictability.  One can rarely read a legal document these days without at least some mention of COVID-19 and its impact on the overall timeline of a matter.  Are jury trials really a distant memory while still navigating midst of the COVID-19 era, or will innovation and the embrace of a new normal propel us forward?

New York Judge Rules Loss of Property Use Due to COVID-19 Does Not Trigger Business Interruption Coverage

Author: Rachael Marvin, Robert Modica

Guest Editor: Ashley Kaye

February 19, 2021 8:50am

A movie theater is on the hook for business losses due to COVID-19 shutdown orders, after the New York Supreme Court in Nassau County ruled the loss of the use of premises due to COVID-19 does not constitute a direct physical loss triggering business interruption coverage. Judge Driscoll recognized New York precedent requires a tangible physical alteration to the policyholder’s property, which did not occur in the case of Soundview Cinemas Inc. v. Great American Insurance Group.

Will Women’s Independence be a Silent Victim of the Pandemic?

Author: Marlene Otero

Guest Editor: Ashley Kaye

February 9, 2021 9:00am

The UN Women Deputy Executive Director Anita Bhatia stated, “Everything [women have] worked for, that has taken 25 years, could be lost in a year.”  The relentless nature of COVID-19 has put an alarming amount of people out of work, and the majority of the unemployed workforce are women.  Of the more than one million workers ages 20 and over who left the workforce as of September 2020, 85.6% were women.  Leading causes as to why women are leaving…

Recent Changes in New York Landlord-Tenant Laws Due to COVID-19 Temporarily Halt Evictions Until May 2021

Author: Rachael Marvin

Guest Editor: Ashley Kaye

February 9, 2021 9:00am

Under New York property law, a landlord may bring a special proceeding to remove tenants who continue to occupy the premises without permission after the lease term is over. This provides New York state courts with broad authority to remove holdover tenants. However, recent Executive Orders issued by Governor Andrew Cuomo and Administrative Orders issued by the Chief Administrative Judge in response to the COVID-19 pandemic have sharply limited…

Developments in Business Interruption Insurance Coverage and Litigation Due to COVID-19

Author: Tina Ma, Mike Coffey

Guest Editor: Ashley Kaye

February 1, 2021 8:28pm

As coronavirus cases continue to rise, lockdown and stay at home orders have returned, shutting down and limiting business operations.  As such, it is likely the number of business interruption claims will increase in the upcoming months.  Historically, business interruption insurance cover claims arising from natural disasters and most policies contain a specific exclusion for damages arising from a virus.  Since the start of the pandemic in March 2020…

Can CRE Landlords Be Held Liable for COVID-19 Exposures?

Featured: Rob Olson

Millionacres – January 19, 2021

Rob Olson is senior counsel in San Diego with Tyson & Mendes, a litigation firm that specializes in insurance defense. He said:

“The first question in evaluating a lawsuit over COVID exposure: Where did the plaintiff allege they were exposed? If it was at work, in a tenant’s office space, then it is outside the property owners’ control. But if the plaintiff alleges that they were exposed in a common area, then the property owner may not easily get out of the lawsuit.”


What to Expect from Future Business Interruption Coverage Cases in New Jersey: COVID-19 Closures May Be Considered a Covered Loss

Author: Rachael Marvin, Robert Modica

Guest Editors: Amy Chambers, Ashley Kaye

January 11, 2021 9:00am

Two important lawsuits have paved the way for business interruption coverage cases in New Jersey due to COVID-19: Optical Services USA v. Franklin Mutual Insurance Co. and Mac Property Group LLC v. Selective Fire & Casualty Insurance Co. Both are recent Superior Court decisions, decided on August 13, 2020, and November 5, 2020, respectively. In both cases, New Jersey Superior Courts addressed the key issue of whether…

COVID-19 Business Loss Coverage Update

Author: David Kahn

Guest Editors: Wendy Skillman, Ashley Kaye

January 11, 2021 9:00am

According to Law360, there are over 1,400 federal lawsuits fighting denials by insurance carriers for COVID-19 business loss coverage and over 600 such suits in state court. In last month’s Newsletter, we reported the dismissal of the complaint of two Fresno hotels claiming business losses based on the virus exclusion in their respective insurance policies continuing the trend of California courts. (West Coast Hotel Management, LLC…

SB 1383: Small Businesses in California Must Prepare for Expanded Employee Leave Benefits Effective January 1, 2021

Author: Kyle R. Maland

Guest Editors: Sean McGah, Ashley Kaye

December 17, 2020 8:14am

On September 17, 2020, Governor Gavin Newsom signed into law new employer requirements for employee leave rights under the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA). The new law significantly increases the number of California employers subject to the CFRA and NPLA, placing new burdens on small businesses already fighting to keep their doors open.  The change requires California employers with as few as five employees to provide family and medical leave rights to their employees.

The Nevada Division of Insurance and Power to Suspend Policy Exclusions for Pandemic-Related Coverage

Author: Cheryl Wilson

Guest Editors: Jeremy Freedman, Ashley Kaye

November 30, 2020 3:59pm

The Nevada Division of Insurance can create law and determine when the law has been violated. The Division of Insurance has original jurisdiction to hear matters when a party seeks to force a carrier to comply with the insurance code. (Allstate Ins. Co. v. Thorpe (Nev. 2007) 123 Nev. 565; see also NRS § 686A.015 [stating “the Commissioner has exclusive jurisdiction in regulating the subject of trade practices in the business of insurance in this state.”]). NRS 679B.301(1) authorizes the Insurance Commissioner to hold hearings for any purpose under…

Federal District Court in California Dismisses Hotel Owners’ COVID-19 Business Loss Lawsuit Based on Virus Exclusion in Policy

Author: David Kahn

Guest Editors: Jeremy Freedman, Ashley Kaye

November 30, 2020 3:41pm

The Central District Court of California has dismissed the Complaint of two Fresno hotels claiming business losses to COVID-19. Following the trend of other California courts, the Central District Court found the Complaint failed to specifically allege facts supporting a claim for Business Income and Civil Authority coverage under the applicable Insurance Policy. Accordingly, the Court held the hotels’ COVID-19 related business losses were excluded from coverage under the Policy’s Virus Exclusion.

Can a Home Office Establish Venue in Illinois?

Author: Scott Ruksakiati

Guest Editors: Nathan Berkeley, Ashley Kaye

November 30, 2020 3:26pm

During an extended period of COVID-19-related changes to the way businesses operate, and considering the uncertainty of what the situation may be in the coming months, the potential significance of a recent Illinois Supreme Court’s opinion on the issue of whether a home office is sufficient for purposes of establishing venue cannot be overemphasized. Even though the facts of Tabirta v. Cummings, 2020 IL 124798, originated well before COVID-19 surfaced to influence many parts of everyday life, its issuance during the pandemic serves to provide guidance for business owners and defense counsel alike moving forward, especially when so many employees are working from home.

Florida Dentist Loses COVID-19 Insurance Suit

Author: Ross Dwyer

Guest Editors: Nathan Berkeley, Ashley Kaye

November 30, 2020 3:18pm

Tyson & Mendes has been tracking COVID-19 insurance lawsuits brought by businesses seeking to recoup losses from insurers related to the pandemic. Last month, we reported on a beer distributor who had its insurance coverage lawsuit dismissed by the United States District Court for the Middle District of Florida. This month, we report on a Florida dentist who suffered a similar result when Florida’s Southern District Court tossed his insurance coverage lawsuit against Hartford Casualty Insurance Company (“Hartford”).

Proposed S8587 Declares Agreements Exempting Employers From Liability for Negligence Related to the COVID-19 Pandemic Void and Unenforceable

Author: Kiley McCarthy Connolly

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

In proposed New York Senate Bill S8587, the legislature is considering passing a law which declares agreements exempting employers from liability for negligence related to the COVID-19 pandemic void and unenforceable. The bill is sponsored by Senator Liu, Senator Biaggi, and Senator Carlucci and was introduced to the New York Senate on June 16, 2020.

Liability Protections in a COVID-19 World

Author: Scott Ruksakiati

Guest Editor: David Kahn

October 5, 2020 1:46pm

Soon after States began imposing quarantine restrictions due to the COVID-19 pandemic, it became readily apparent many businesses would be severely and negatively impacted, perhaps permanently. Certainly, for home improvement and home gardening retailers, both online and brick-and-mortar, 2020 has been a lucrative year.  However, other businesses, such as gyms, salons, restaurants, and bars, which rely primarily on patrons visiting their locations in person, have seen catastrophic consequences due to the pandemic. The federal government recognized the devastating effects pandemic-related restrictions would…

Are Remote Trials the Wave of the Future? – Florida’s First Remote Civil Damages Trial Results in Plaintiff’s Award Against a Bar Owner

Author: Nathan E. Malone

Guest Editor: David Kahn

September 1, 2020 8:30am

With the current health pandemic lingering on longer than most people expected, courts have been struggling to find ways to get cases moving forward in light of extended court closures and the inability to assemble jurors.  On August 11, 2020, a court in the Fourth Circuit for Duval County held a one day damages trial involving a plaintiff dancer and a bar owner.  Jurors were summonsed in the normal fashion, but given instructions for Zoom appearances.  Jury selection occurred all via the Zoom platform.  While admittedly not ideal for longer, more complicated…

Maricopa County Creates Alternative Proceeding to Civil Jury Trial

Author: Kimberly Sayre

Guest Editor: Allen Aho

September 1, 2020 8:30am

In response to COVID-19 and its impact on civil jury trials, Maricopa County has created the Late Case Fair Limits Proceedings for all civil cases not assigned to compulsory arbitration. As early as the date upon which discovery and disclosure close, the court may order the parties to participate in the proceeding. A Late Case Fair Limits officer is appointed by the court. This officer can be a current judge who has had no affiliation with the case or any retired judicial officer or attorney.

Prepping for a Surge of COVID-19 Bad-Faith Issues

Author: Lynn Allen

Claims Magazine – August 2020

In March 2020, the United States came to a screeching halt. Schools closed, businesses shut down and the national economy saw its largest decline in more than a decade. The wave of insurance coverage litigation over COVID-19 losses was inevitable. And as policyholders seek to recoup business-related losses, business interruption claims are becoming the new normal. With insurance companies denying such claims for lack of physical damage or loss to property, bad faith lawsuits are soaring and businesses are suing their insurance companies in increasing numbers.


AB 1552: Pulled From Consideration By California Lawmakers

Author: Justin T. Ruedaflores

August 13, 2020 9:13am

Last month, we reported on Assembly Bill 1552 (“AB 1552”), the proposed legislation by California Assembly members James C. Ramos (D-Highland) and Monique Limón (D-Santa Barbara).  AB 1552 aims to provide financial relief to California businesses impacted by the COVID-19 pandemic, by allowing them to seek benefits from their insurance carriers if these businesses had an active business interruptions insurance policy in place.  As we reported, business interruption policies were designed by insurance carriers to cover financial losses resulting from…

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