Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Florida newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (April 30, 2021, 9:12 PM EDT) -- Hartford Casualty Insurance Co. urged a Florida federal court on Friday to toss a beauty salon's proposed class suit, arguing there is a growing consensus in the state that COVID-19 business interruption losses aren't caused by "direct physical loss or damage" to property.
Patrice Bourgier, who owns a Miami beauty salon, can't tap into coverage for losses from closing under government orders related to the coronavirus pandemic, Hartford Casualty Insurance argued. The salon's alleged physical loss from "the constant risk of recontamination" didn't cause it to suspend operations, the insurer said.
"COVID-19 does not physically or tangibly alter property because it can be removed with the use of a simple disinfectant or the mere passage of time," Hartford added.
Bourgier filed suit in March, alleging her losses extended beyond shutdown orders to completely reconfiguring the salon's space and changing operations to mitigate the spread of the coronavirus. Bourgier said businesses were forced to close "to permanently and reliably eliminate contamination" by the virus.
In Friday's brief, Hartford argued those "significant necessary physical alterations" as alleged by the salon weren't made to prevent the spread of the virus on the property but from person to person. The salon didn't need to repair, rebuild or replace any of its property, according to the insurer.
Hartford said numerous courts nationwide have rejected identical civil authority coverage bids without a complete prohibition of access to property. The government orders didn't bar Bourgier from entering her salon, the insurer argued, as those orders served to stop any future spread of the coronavirus.
Finally, Hartford said the salon also can't escape the virus exclusion, which more than 30 courts have found bars COVID-19-related claims. Bourgier recognizes "the novel coronavirus that causes COVID-19 is a virus" and mentions at least 140 times in her complaint that the virus caused her losses, the insurer said.
This year, a restaurant, a brunch eatery chain owner and a catering company saw losses in their Florida federal court suits. The judges in those cases ruled there wasn't any physical loss that could be tied to the government shutdown orders triggering coverage for business interruption claims.
Counsel for the parties didn't respond to requests for comment on Friday.
Bourgier is represented by Steven C. Marks, Aaron S. Podhurst, Lea P. Bucciero, Kristina M. Infante and Pablo Rojas of Podhurst Orseck PA and Stephen N. Zack, Bruce Weil, James Lee and Marshall Dore Louis of Boies Schiller Flexner LLP.
Hartford is represented by James M. Kaplan of Kaplan Zeena LLP and Sarah D. Gordon, John J. Kavanagh and Caitlin R. Tharp of Steptoe & Johnson LLP.
The case is Patrice Bourgier et al. v. Hartford Casualty Insurance Co., case number 1:21-cv-21053, in the U.S. District Court for the Southern District of Florida.
--Additional reporting by Carolina Bolado, Lauren Berg, Daphne Zhang and Joyce Hanson. Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
