A Northern District of Illinois judge issued an opinion Sunday denying motions to amend the complaint and reconsider the dismissal of a case brought by Sandy Point Dental against The Cincinnatti Insurance Company. The plaintiff originally brought the case to seek a declaratory judgment that the insurance policy it maintained with the defendant covered business losses sustained due to the COVID-19 pandemic.
The court previously ruled on the insurance company’s motion to dismiss the case in September 2020, holding that the policy “is only triggered by a direct physical loss” and that the pandemic and resultant lockdowns did not constitute such a loss. In response, the plaintiffs filed a motion to reconsider and argued that there was a “‘change in the law after the case was submitted to the Court,'” citing a Western District of Missouri case that found the COVID-19 virus itself to be capable of physical harm by attaching itself to the premises. The court distinguished that case from Sandy Point’s, noting that the specific policy language at issue differs significantly. The court also recounted that the majority of jurisdictions have aligned with its position.
The judge also rejected the plaintiff’s motion to file a second amended complaint. According to the opinion, the plaintiffs added proposed paragraphs explaining how the COVID-19 virus attaches itself to physical spaces. The court rejected the new complaint, finding that it did not correct its deficiencies, adding that “there are no allegations that COVID-19 was ever present in the facility and no allegations of tangible physical damage.”
The plaintiff is represented by Becker & Becker and Charles Aaron Silverman, while the defendant is represented by Litchfield Cavo.
