The Ohio Supreme Court has agreed to answer certified questions of law on COVID-19 property damage. The answers to these questions will have a significant impact on coverage for COVID-19 losses.
On January 19, 2021 Judge Benita Y. Pearson, U.S. District in the Northern District of Ohio, certified the following questions of law to the Ohio Supreme Court: Does the general presence in the community, or on surfaces at a premises, of the novel coronavirus known as SARS-Cov-2, constitute direct physical loss or damage to property; or does the presence on a premises of a person infected with COVID-19 constitute direct physical loss or damage to property at that premises?
The certified questions came as a result of litigation Neuro-Communication Services, Inc. (“Hearing Innovations”) brought against Cincinnati Insurance Company for the audiology company’s business losses due to the pandemic and the State of Ohio’s mandated closures.
Hearing Innovations had asked the Ohio Supreme Court to decline certification of the question of law. In its Preliminary Memorandum in Opposition to Acceptance of Certified Questions, Hearing Innovations argued that (1) the questions certified by the District Court are mixed questions of aw and fact that are better resolved after discovery and with a factual record; (2) Ohio law’s controlling principles of insurance contract interpretation are well settled; and (3) under settled principles of Ohio law governing the interpretation of insurance contracts, Hearing Innovations has stated a claim for coverage under the policy at issue at the Motion to Dismiss stage.
Cincinnati Insurance Company encouraged the Ohio Supreme Court to accept certification. In its Preliminary Memorandum in Support of Acceptance of Certified Questions, Cincinnati Insurance Company argued that (1) There is a question of Ohio law that may be determinative of the proceeding and existing Ohio Supreme Court precedent does not directly address the determinative question here; (2) the most applicable Ohio precedent is the Court of Appeals decision in Mastellone v. Lightning Rod Mutual Insurance Company, 175 Ohio App.3d 23 (Cuyahoga Co. 2008); and (3) the Court’s guidance would be beneficial to both insurers and insureds.
On April 14, 2021 the Ohio Supreme Court agreed to answer the certified questions.
The Ohio Supreme Court’s answers to the certified questions in this case will have an impact on the several pending cases involving coverage for COVID-19 losses. We’ll keep you advised of the Ohio Supreme Court’s answers to the certified questions.