Dr. Jeffrey Milton, DDS, Inc. v. Hartford Cas. Ins. Co.
| Docket Number | Civ. No. 3:20CV00640(SALM) |
| Decision Date | 01 March 2022 |
| Citation | 588 F.Supp.3d 266 |
| Parties | DR. JEFFREY MILTON, DDS, INC. v. HARTFORD CASUALTY INSURANCE COMPANY |
| Court | U.S. District Court — District of Connecticut |
Adam J. Levitt, DiCello Levitt Gutzler LLC, Chicago, IL, Kathleen L. Nastri, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT, Kenneth P. Abbarno, DiCello Levitt Gutzler LLC, Mentor, OH, for Dr. Jeffrey Milton, DDS, Inc.
Anthony Anscombe, Steptoe & Johnson LLP, Chicago, IL, Gerald P. Dwyer, Jr., Peter Meggers, Stephani Roman, Robinson & Cole LLP, Hartford, CT, Sarah Gordon, Steptoe & Johnson LLP, Washington, DC, for Hartford Casualty Insurance Company.
RULING ON MOTION TO DISMISS
Defendant Hartford Casualty Insurance Company (hereinafter "The Hartford") has filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking to dismiss the Amended Complaint in its entirety. [Doc. #39]. Plaintiff Dr. Jeffrey Milton, DDS, Inc. d/b/a Olentangy Pediatric Dentistry (hereinafter "plaintiff") has filed a memorandum in opposition to the motion to dismiss [Doc. #40], to which The Hartford has filed a reply [Doc. #41]. For the reasons stated herein, the Motion to Dismiss [Doc. #39 ] is GRANTED .
Plaintiff brought this action on May 8, 2020, against The Hartford. See Doc. #1 at 4.1 On October 30, 2020, The Hartford answered the Complaint. [Doc. #23]. Plaintiff filed an Amended Complaint on April 19, 2021. [Doc. #32]. The Hartford sought a pre-filing conference with Judge Janet Bond Arterton, then the presiding judge, asserting that it had grounds to dismiss the claims against it. See Doc. #33. After a conference with the parties, Judge Arterton entered an order permitting plaintiff to file a Second Amended Complaint, and setting a briefing schedule for The Hartford's motion to dismiss. See Doc. #36. No Second Amended Complaint was filed. The Hartford filed the instant Motion to Dismiss on June 25, 2021. See Doc. #39. This matter was transferred to the undersigned on November 1, 2021. See Doc. #44.
Plaintiff seeks to proceed with this matter as a Class Action. See Doc. #32 at 25-29. Because the Court finds the Complaint fails to state a claim, the Court need not address the class allegations.
Plaintiff "owns and operates Olentangy Pediatric Dentistry, located in Powell, Ohio." Doc. #32 at 1. Defendant "issued Policy No. 40 SBA PI2050 to Plaintiff Olentangy for a policy period of July 28, 2019 to July 28, 2020, including a Specialty Property Coverage Form[,]" id. at 11, which provides coverage for "actual loss of Business Income sustained due to the necessary suspension of its operations during the ‘period of restoration’ caused by direct physical loss or damage." Id. at 12.
In March 2020, the State of Ohio issued orders in response to the spread of COVID-19 "requiring the cancellation of non-essential or elective surgeries[ ]" and "the closure of non-essential businesses." Id. at 21. As a result of these orders and the spread of COVID-19, "Plaintiff was required to drastically reduce operations at its office, and even to close entirely." Id. at 9.
Plaintiff further contends: "On information and belief, persons who were pre-symptomatic or asymptomatic and unknowingly carrying the coronavirus, including but not limited to employees, customers, and other business visitors, were present at insured property on various dates during 2020." Id. at 23. Plaintiff alleges that:
The presence of COVID-19 caused "direct physical loss of or physical damage to" covered property under Plaintiff's policy, and the policies of the other Class members, by: (i) structurally altering and diminishing functional space of covered property; (ii) denying use of and damaging the covered property; (iii) requiring physical repair and/or alterations to the covered property; and/or (iv) by causing a necessary suspension of operations during a period of restoration.
The Policy, by its terms, provides coverage "for direct physical loss of or physical damage to Covered Property ... caused by or resulting from a Covered Cause of Loss." Doc. #1-1 at 27.2 The Policy covers "Business Income" losses as follows: Id. at 36. The Policy also provides "Civil Authority" coverage as an extension of the "Business Income" coverage. See id. at 37. The "Civil Authority" provision provides:
This insurance is extended to apply to the actual loss of Business Income you sustain when access to your "scheduled premises" is specifically prohibited by order of a civil authority as the direct result of a Covered Cause of Loss to property in the immediate area of your "scheduled premises".
Id. The Policy also includes "Extra Expense" coverage, which provides that The Hartford "will pay reasonable and necessary Extra Expense you incur during the ‘period of restoration’ that you would not have incurred if there had been no direct physical loss or physical damage to property at the ‘scheduled premises’ ... caused by or resulting from a Covered Cause of Loss." Id. at 36.
The Policy includes an endorsement titled "Limited Fungi, Bacteria or Virus Coverage" (hereinafter "Virus Endorsement") which contains the following exclusionary language (hereinafter "Virus Exclusion"):
We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss: (1) Presence, growth, proliferation, spread or any activity of ‘fungi’, wet rot, dry rot, bacteria or virus.
Id. at 126. The endorsement also contains the following "Time Element Coverage":
If the loss which resulted in "fungi", wet or dry rot, bacteria or virus does not in itself necessitate a suspension of "operations", but such suspension is necessary due to loss or damage to property caused by "fungi", wet or dry rot, bacteria or virus, then our payment under the Time Element Coverage is limited to the amount of loss and expense sustained in a period of not more than 30 days unless another number of days is indicated in the Declarations. The days need not be consecutive. If a covered suspension of "operations" was caused by loss or damage other than "fungi", wet or dry rot, bacteria or virus, but remediation of "fungi", wet or dry rot, bacteria or virus prolongs the "period of restoration", we will pay for loss and expense sustained during the delay (regardless of when such a delay occurs during the "period of restoration"), but such coverage is limited to 30 days unless another number of days is indicated in the Declarations. The days need not be consecutive.
Id. at 127-28. Although the parties dispute the import of these provisions, they do not dispute that they are included in the relevant Policy.
Plaintiff asserts: "Losses caused by COVID-19 and the related orders issued by local, state, and federal authorities triggered the Business Income, Extra Expense, and Civil Authority provisions of the Hartford Casualty policy." Doc. #32 at 14. "Plaintiff submitted a claim for loss to Hartford Casualty under its policy due to the presence of COVID-19 and the Closure Orders, but Hartford Casualty denied that claim." Id. at 25. The Hartford denied plaintiff's claim for Business Income Coverage, Civil Authority Coverage, and Extra Expense Coverage. See id. at 31-33.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and quotation marks omitted); accord Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854 (2d Cir. 2021). In reviewing such a motion, the Court "must accept as true all nonconclusory factual allegations in the complaint and draw all reasonable inferences in the Plaintiffs’ favor." Kaplan, 999 F.3d at 854 (citations omitted).
Mandala v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (citation and quotation marks omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and quotation marks omitted).
The parties agree that there is no conflict between Connecticut and Ohio law regarding contract interpretation. See Docs. #39-1 at 13, #40 at 15. Defendant addresses the law of both Connecticut and Ohio in its motion, see Doc. #39-1 at 13; plaintiff asserts that "Connecticut law applies to this case by default because it is the law of the forum and neither party has identified an actual conflict of laws between Ohio and Connecticut." Doc. #40 at 15.
Where there is no conflict, the Court does not need to conduct a choice of law analysis. See, e.g., Ali v. Fed. Ins. Co., 719 F.3d 83, 90 n.12 (2d Cir. 2013) (); Wall v. CSX Transp., Inc., 471 F.3d 410, 422 (2d Cir. 2006) (); Lumbermens Mut. Cas. Co. v. Dillon Co., Inc., 9 F. App'x 81, 84 (2d Cir. 2001) (...
To continue reading
Request your trial