There has been increased activity among the policyholder bar filing coverage actions based upon COVID-19 and coverage under a variety of primarily business oriented policies. Policies impacted have both occurrence and claims-made insuring grants. Favorable rulings – even if contrary to the unambiguous terms of insurance policies – will have maximum impact through use of class action and multi-district procedural rules. Typical of the facts and class certification allegations is the matter pending in Texas, Berkseth-Rojas DDS v. Aspen American Insurance Company, Northern District Texas (Dallas Division).
The Berksesth-Rojas DDS Plaintiff seeks to certify a class pursuant to Federal Rule of Civil Procedure 23(a) governing the requirements for certification. Plaintiff is a dental service provider located in Minneapolis, Minnesota. Plaintiff alleges the dental practice was suspended or reduced due to COVID-19 and the resultant Executive Orders issued by the Governor of Minnesota. Specifically, the Executive Orders required non-emergency or elective dental care requiring Personal Protective Equipment to be postponed indefinitely. The Complaint further states Aspen has refused to pay its insureds under the various coverages forming the basis of this Complaint, including Practice Income, Civil Authority, Extra Expense and Sue and Labor coverages. The Complaint attaches a copy of a Professional Liability Dentists/Oral Surgeons Claims-Made Policy issued to Berkseth-Rojas. Exemplar of one proposed class defined by the Complaint is:
“All persons or entities with Practice Income coverage under a property insurance policy issued by Aspen that suffered a suspension of their practice due to COVID-19 at the premises covered by the practice income coverage (the “Practice Income Declaratory Judgment Class”).
The Complaint seeks relief for breach of contract and under the Federal Declaratory Judgment Act. Senior Judge Fitzwater is assigned to preside.