Restaurant seeks fast-track ruling on COVID-19 insurance coverage

A Pittsburgh restaurant that has been closed as a result of the COVID-19-related shutdown has asked the Pennsylvania Supreme Court to exercise its King’s Bench powers to wade into an ongoing dispute with its insurance carrier over whether the company must provide coverage for business interruption.

In a petition filed to the justices, attorneys for restaurant owner Joseph Tambellini said a ruling from the Supreme Court on the issue could provide guidance to the ”hundreds, if not thousands,” of lawsuits expected to result from the statewide closures Gov. Tom Wolf mandated to stem the spread of the highly contagious disease.

Tambellini is asking the high court to rule on whether Erie Insurance, which sold him a policy that does not include an exclusion for virus-related incidents, must provide coverage for the business disruption he’s faced after his business was closed as part of the ongoing shutdowns. If the claim is successful, the plaintiff further asked that the justices consolidate all insurance claims related to the COVID-19 shutdowns into a single court in Pennsylvania — much like what happens in federal multidistrict litigation — so the claims can be handled quickly.

“The instant action presents issues of immediate public importance to not only plaintiff, Tambellini, but to all citizens of the commonwealth who are seeking recompense from their insurers for the losses, damages and expenses caused by the COVID-19 pandemic and the related governmental orders,” Tambellini said in the petition. ”Exercise of jurisdiction by the court is warranted by the immediate needs of citizens of the commonwealth who need resolution of the legal insurance coverage issues facing them in attempting to restart their businesses and their lives in the face of the losses, damages and expenses caused by the COVID-19 pandemic and the related governmental orders.”

Given the number of businesses that have been shuttered and will likely be seeking insurance coverage for their losses, plaintiff’s lawyer Scott Cooper of Schmidt Kramer said a decision from the Supreme Court could head off having a situation where there are conflicting rulings out of the county courts and federal district courts, fueling a time-consuming race back up the appellate ladder. He further noted that federal courts will be making rulings based on guesses at what the justices are likely to do.

“We think it would be advantageous to everyone — insurance companies and courts — so you don’t have 10,000 lawsuits in state and district courts,” he said.

Cooper said the case should present a clean opportunity for the justices to wade into the issue since there is no virus exclusion in the case, there are no diversity jurisdiction issues for the defendants to raise, and there is not much in the way of a record that the lower courts would need to develop.

The Pennsylvania Supreme Court rarely takes up cases in its King’s Bench jurisdiction, but there are some signs that the justices are eager to get out in front of COVID-related litigation.

One case Tambellini cited in his petition was Friends of Danny DeVito v. Wolf, in which a collection of business owners sought to invalidate Wolf’s shutdown order stopping the physical operations of all “non-life-sustaining” business. The companies filed their petition in late March, and the justices used their King’s Bench powers to take up the case, ruling in mid-April to allow Wolf’s order to stand.

Before filing the King’s Bench petition, Tambellini sued Erie in the Allegheny County Court of Common Pleas, seeking a declaratory judgment that the company must cover the damages from the shutdown. Specifically, Tambellini argued that his policy is an “all-risk” policy, which provides coverage for all losses unless specifically excluded. Since the policy does not include a virus-related exclusion, the coverage must be available, he contended.

The petition to the justices also said the policy is typical for business owners across the state.

“Hundreds, if not thousands, of lawsuits are expected to be filed in the commonwealth by business owners against insurers to recover for the losses, damages and expenses caused by the COVID-19 pandemic and the related governmental orders,” he said.

Related:

• Class actions filed against six insurers over COVID-19 coverage
• 6 types of employment lawsuits to expect in the wake of COVID-19
• Managing risk as businesses reopen after COVID-19