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the very same direct physical loss requirement applies to all the protections for which Complainants take legal action against." The policy did not define "direct physical loss" and the court, using Missouri law, counted on the dictionary meanings of "direct," "physical," and "loss" to determine the "plain and ordinary meaning" of the expression "direct physical loss." (Order at 8.) The court identified that direct ways, in part, "identified by a close, sensible, causal, or substantial relationship." (Id.) It next found that physical ways "having product presence noticeable especially through the senses and subject to the laws of nature;" which loss is "the act of losing possession" and "deprivation." (Id.) Counting on these definitions, the court ruled that the Insureds had actually offered adequate accusations of the infection' physical presence at the properties such that the residential or commercial property was hazardous and unusable and hence satisfied the requirement of direct physical loss.
g., Mehl v. Travelers House & Marine Ins. Co., Case No. 16-CV-13250 CDP (E.D.Mo. May 2, 2018); Port Auth. Of New York City and New Jersey v. Affiliated FM Ins. Related Source Here , 311 F. 3d 226, 236 (3d Cir. 2002). (Order at 9-10.) Appropriately, the court rejected the motion to dismiss and enabled the case to continue to discovery.
Co., LLC v. Michigan Ins. Co., Case No. 20-258-CD (Ingham County, Mich. July 1, 2020) because, among other factors, those cases did not declare real contamination of the properties. (Order at 10-13.) We will have to wait to see if other courts will embrace this position and, if so, what realities adequately establish direct physical loss.
There are numerous cases involving business disturbance protection for COVID-19 losses still pending and continue to monitor this area for new advancements. 2021 Epstein Becker & Green, P.C. All rights reserved. National Law Review, Volume X, Number 252.
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