10th Circ. Next up to Hear If COVID-19 Losses Are Covered
The Tenth Circuit on Monday will become the latest federal appeals court to hear oral arguments in a suit over denied coverage for COVID-19 business interruption losses, with Goodwill contesting an Oklahoma federal judge's dismissal of its case against Philadelphia Indemnity Insurance Co.
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Lisa Campisi, a partner at Blank Rome LLP who represents policyholders, told Law360 there has been a "snowball effect" among federal district courts that have piggybacked off each other's rulings in favor of insurers.
With regard to the case at the Tenth Circuit, Campisi said she thinks the court "can and should not simply join the bandwagon of some other federal appellate courts that have ruled in favor of the insurers."
"I think this court has some favorable arguments to work with," she said.
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The Policyholder's Stance
Ambiguity in the policy due to its failure to define what constitutes physical loss or damage should be construed in favor of coverage, Goodwill has contended in its briefs. The policy at issue differs from the one in Oral Surgeons, which defined the term "loss," Goodwill argues.
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Campisi pointed out that such policy language has been around for decades and that two Oklahoma state courts have issued rulings in favor of policyholders. In one of the rulings, she said, the court "begged" insurers to define the terms, and they have not.
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Campisi told Law360 that in addition to showing that government shutdown orders resulted in a covered loss of use of its property, Goodwill will need to convince the Tenth Circuit that the policy's virus exclusion did not apply. The policyholder contends that the exclusion is inapplicable on grounds that it was unsigned and added without consideration.
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“10th Circ. Next up to Hear If COVID-19 Losses Are Covered,” by Shane Dilworth was published in Law360 Insurance Authority on November 10, 2021.