11th Circuit sides with insurer in COVID coverage case - Reuters

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• Losses from state, federal orders not 'property damage'
• 8th Circuit reached same conclusion in July

(Reuters) - In a second win for the insurer at the federal appellate level, the 11th U.S. Circuit Court of Appeals has held that Cincinnati Insurance Co’s business income interruption coverage did not include a Georgia dental practice’s losses from a state shelter-in-place order and federal guidance to postpone routine and elective medical procedures at the start of the COVID-19 pandemic.

The 11th Circuit agreed with Cincinnati’s attorneys at Litchfield Cavo and a March ruling by a federal judge in Atlanta, who dismissed Gilreath Dental Associates’ potential class action for failure to allege any property damage that would trigger coverage under the “all-risk” policy’s business income interruption, extra expense, or civil authority clauses.

Gilreath was represented by Hall & Lampros.

Circuit Judges Charles Wilson, Robin Rosenbaum, and Britt Grant issued the unpublished, per curiam opinion Tuesday without hearing argument.

“Gilreath has alleged nothing that could qualify, to a layman or anyone else, as physical loss or damage” because the orders and guidance “did not damage or change the property in a way that required its repair or precluded its future use for dental procedures,” the opinion says.

The 8th Circuit also ruled for Cincinnati Insurance in July in the first federal circuit court decision on BII coverage for losses arising from pandemic-related shutdown orders. In both circuits, Cincinnati drew amicus support from the National Association of Mutual Insurance Companies and the American Property Casualty Insurance Association.

According to the Covid Coverage Litigation Tracker at the University of Pennsylvania Carey Law School, 183 federal appeals are pending, with 61 in the 9th Circuit alone. At least 57 cases are pending in state appellate courts, according to the tracker.

The case is Gilreath Family & Cosmetic Dentistry dba Gilreath Dental Associates, OBO itself and others similarly situated, v. Cincinnati Insurance Co., 11th U.S. Circuit No. 21-11046.

For Gilreath: Patrick Hannon of Hall & Lampros

For Cincinnati Insurance: Daniel Litchfield of Litchfield Cavo

For Amicus NAMIC and APCIA: James Chin of Zelle

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11th Circuit sides with insurer in COVID coverage case - Reuters
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