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Attys Say State High Courts Should Weigh COVID Issues


COVID-19 coverage issues should continue to be sent to the highest courts in each state instead of being decided piecemeal by federal courts, policyholder attorneys told Law360 on the same day that the Seventh Circuit heard four more cases over denied insurance coverage for losses during the pandemic.


Seth Lamden of Blank Rome LLP pointed to the Seventh Circuit's recognition in one of the cases, Sandy Point Dental PC v. Cincinnati Insurance Co., that there isn't any interpretation yet by the Illinois Supreme Court on "physical loss or damage" as reason enough that the issue among others should be certified.

Though the Illinois Supreme Court doesn't have a COVID-19 coverage case before it, the Wisconsin Supreme Court does — which could impact Wisconsin federal cases before the Seventh Circuit.

Lamden, who represents policyholders, had misgivings with the Seventh Circuit's earlier reliance on a particular case, Travelers Ins. Co. v. Eljer Mfg. Inc., saying that the Illinois justices interpreted "very different" language found in a commercial general liability policy rather than a property insurance policy for a construction defect case.

"There is a concern because if the Wisconsin or Illinois Supreme Courts rule in favor of coverage, policyholders with adverse rulings in the Seventh Circuit will have been unfairly prejudiced by federal decisions that incorrectly predicted state law because the federal decisions were issued first," he said.

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“Attys Say State High Courts Should Weigh COVID Issues,” by Shawn Rice was published in Law360 on January 14, 2022.