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For COVID Closure Sparks Steakhouse Loses Case Against Insurer As Employees Allowed In

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Dec 11 – Hometown Tavern of Warren, Rhode Island sued Lloyd's of London for failure to pay insurance when it was ordered closed due to COVID-19 under the Rhode Island Stay at Home Orders. 

 On November 6, 2020 U.S. District Court for the Southern District of New York Judge Ronnie Abrams held a proceeding. Inner City Press covered it, below. Discovery was stayed, pending a motion to dismiss.

Now on December 11, SDNY Judge John P. Cronan has issued an order in a similar case brought by Sparks Steakhouse of Mafia hit lore, dismissing its claims on the insurer's motion:

"under the plain meaning of the Policy, if employees (but not patrons) were allowed access to the indoor portions of the restaurant, civil authority did not prohibit access. For example, a court in the Southern District of California dismissed a claim for civil authority coverage because “the complaint does not allege that any COVID-19 [c]ivil [a]uthority [o]rders prohibited [p]laintiffs from access to their business premises.” Pappy’s Barber Shops, Inc., 2020 WL 5500221, at *6; see also Sandy Point Dental, 2020 WL 5630465, at *3 (“[W]hile coronavirus orders have limited plaintiff’s operations, no order issued in Illinois prohibits access to plaintiff’s premises.”). Moreover, as noted above, the Complaint acknowledges that the closure orders did not extend to take-out orders and deliveries. Compl. ¶ 30. Access to non-Sparks employees therefore was not even restricted by the closure orders, as the restaurant remained permitted to process delivery and take-out orders. The Complaint fails to plead that the area surrounding Sparks suffered damage or that a civil authority order completely barred access to Sparks and the area immediately surrounding any neighboring damaged area. As with the Policy’s business income and extra expense provisions, Sparks has failed to allege sufficient facts to establish its entitlement to the sought declaratory relief or to present a plausible breach of contract claim as to the civil authority provision. Counts Three and Four are therefore dismissed....Sparks brought this action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of itself and “all other persons similarly situated.” Compl. ¶ 49. To the extent that Sparks sought class certification in its Complaint, see id. at 29, the Court does not reach this because the Court today grants the motion to dismiss as to all claims that Sparks brought. See id. ¶ 52. Finally, the Complaint noted in passing that it sought a declaratory judgment that the Policy “provides coverage for future civil authority orders that result in future suspensions or curtailments of business operations.” Id. ¶ 9. The Court does not read the Complaint’s declaratory judgment counts as seeking such relief, but instead understands them to focus on the closure orders already issued. Id. ¶¶ 62-68, 79-85, 94-100. If Sparks meant to seek a declaratory judgment that the Policy also provides coverage for future orders, Sparks would not be entitled to such an advisory opinion by this Court. See Olin Corp. v. Consol. Alum. Corp., 5 F.3d 10, 17 (2d Cir. 1993).  III. Conclusion  For the foregoing reasons, Admiral’s Motion to Dismiss, Dkt. 24, is GRANTED. Sparks did not move this Court for leave to amend the Complaint, and, in all events, the Court finds that allowing leave to amend would be futile. Therefore, the case is DISMISSED with prejudice."

Lloyd's wants the case transferred to Rhode Island.

It has also filed a motion to dismiss, and wanted discovery stayed.

Judge Abrams agreed to stay discovery for now.

The case is 632 Metacom, Inc. v. Certain Underwriters at Lloyd's, London Subscribing to Policy No. XSZ146282, 20-cv-3905 (Abrams)


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