On October 25th, in a policyholder win, Judge Raymond Mitchell of Cook County denied Continental Casualty Company's motion for reconsideration of an earlier August 12 ruling denying a motion to dismiss a business interruption lawsuit filed by JDS Construction Group.

The case, as we reported on in August, involves the important issue of whether the COVID-19 virus causes "physical loss or physical damage." In the motion for reconsideration, Continental Casualty cited several decisions from New York and Illinois asserting that courts in both jurisdictions overwhelmingly found that the presence of the virus does not trigger coverage under a policy requiring "direct physical loss or damage to property."

Judge Mitchell noted in denying the motion that the reconsideration motion failed to note any part of the Plaintiffs' complaint which alleged that the virus was present on the insured premises and virus droplets were conveyed to solid surfaces and into the air and HVAC system, causing structural damage to the property which required alteration to remedy.