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Law360 (June 7, 2021, 8:43 p.m. EDT) – In-N-Out is fighting Zurich American Insurance Co. to maintain its pandemic lawsuit, telling a California federal court that the insurer’s layoff offer relies too much on lawsuits that do not allege the presence of the coronavirus in an insured property.
As of September of last year, more than 800 In-N-Out workers were diagnosed with COVID-19, the respiratory disease caused by the coronavirus, the Golden State burger chain announced on Friday. He claimed that this actual presence of the disease, coupled with government shutdown orders, caused an insurable loss under his Zurich “all perils” policy.
Citing the “evolving science” surrounding the virus, In-N-Out said it would not be appropriate for the court to rule on Zurich’s dismissal offer in the absence of more expert advice and scientific evidence. He said the presence of the virus causes direct physical loss by permeating the air with virus particles that can linger even when surfaces are cleaned.
“A determination that the virus cannot cause loss of use, alteration or alteration of property is contrary to In-N-Out’s factual (and scientific) claims,” the channel said in a memorandum. “As long as anyone infected with the virus is inside the building, they continue to shed virus particles in addition to the existing virus,” he added.
Zurich asked the court in February to dismiss In-N-Out’s lawsuit, saying the famous restaurant did not allege the type of loss or physical damage required for coverage. He said his policy contained an exclusion for “loss of use” of property that precluded coverage for losses resulting from government-ordered restrictions. He added that these restrictions actually allowed In-N-Out properties to remain used for food preparation and curbside collection.
In-N-Out, Zurich asserted, “has not, and cannot allege, that the COVID-19 virus, even if present on site, physically alters the structural integrity of any insured location or renders any location unusable or unsuitable for human occupation. “
On Friday, In-N-Out reaffirmed that Zurich does not include any virus exclusions in its policy that would prevent coverage. He said 97 of 189 first instance court cases cited by Zurich as relevant to the In-N-Out case included a virus exclusion. And at least 160 of those cases also did not allege the actual presence of the coronavirus in a place of business, he said.
Zurich has faced more pandemic lawsuits than almost any other major insurance group, according to data compiled by the Carey Law School at the University of Pennsylvania. Its 167 lawsuits are superior to the 244 of Hartford Financial Services Group Inc.
Last week, the owner of fashion giants Versace, Jimmy Choo and Michael Kors also fought an attempt by Zurich to dismiss its $ 500 million pandemic lawsuit in New Jersey state court. Capri Holdings Ltd. also reported hundreds of infected employees as evidence of the virus’s presence at its outlets.
Last month, the owner of LA Fitness combined two pandemic loss lawsuits in a $ 950 million lawsuit against insurers, including Zurich, in Washington state court.
And in April, a Florida restaurant chain asked the Eleventh Circuit to revive his virus loss costume, claiming that its Zurich Edge policy does not require policyholders to go through a “restoration period” to show real estate repairs. Lindenwood Female College in Saint Charles, Missouri, also asked in court to keep alive a proposed class action lawsuit for antivirus coverage.
In-N-Out’s attorney declined to comment on Friday’s action.
The Zurich lawyer did not immediately respond to a request for comment.
In-N-Out is represented by Robert L. Wallan, Mariah L. Brandt and Rebecca Tierney of Pillsbury Winthrop Shaw Pittman LLP.
Zurich is represented by Sylvia Chiu, Alanna G. Clair, Shari L. Klevens and Connor M. Scott of Dentons, and by Jonathan R. Gross of Mound Cotton Wollan and Greengrass LLP.
The case is In-N-Out Burgers v. Zurich American Insurance Co., case number 8: 20-cv-01000, in the United States District Court for the Central District of California.
–Additional report by Daphne Zhang. Editing by Leah Bennett.
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