Washington Federal Court Asked to Settle Common Questions in Business Interruption Battles

Elizabeth DiNardo, Esq. | Associate Counsel


The battle against insurance carriers over a lack of business interruption coverage in the wake of the on-going pandemic continues with a group made up primarily of Washington State dentists and orthodontists, in addition to other businesses like restaurants, filing a motion for Western District of Washington Judge Barbara J. Rothstein to certify questions of common state law to the Washington State Supreme Court.

In the motion, the plaintiffs argue that it is in the Washington federal court’s discretion to certify questions of state law to the Washington Supreme Court when the questions are not “clearly determined” under existing law and that doing so would “save time, energy and resources and help build a cooperative judicial federalism.” Specifically, the plaintiffs are asking Judge Rothstein to certify: (1) under Washington state law “does being physically deprived of the ability to use covered property directly as a result of the Governor’s shutdown orders constitute a ‘direct physical loss of’ such property?” and (2) “does Washington’s efficient proximate cause rule require a factual determination of the predominant cause of an individual businesses loss, before a virus (or other) exclusion may be applied to bar coverage?”

Like many other businesses engaged in similar suits in courts across the country, the plaintiffs have been locked in legal battles with their various insurance companies over the issue of COVID-related business interruption coverage since spring 2020.

The cases are: Mark Germack v. The Dentists Insurance Co., Case No.: 2:20-cv-00661; Wade Marler v. Aspen American Insurance Co., Case No.: 2:20-cv-00616; Kara McCulloch DMD MSD PLLC v. Valley Forge Insurance Co., Case No.: 2:20-cv-00809; Carlos Caballero v. Massachusetts Bay Insurance Co., Case No.: 3:20-cv-05437; Mario Chorak v. Hartford Casualty Insurance Co., Case No.: 2:20-cv-00627; Pacific Endodontics PS v. Ohio Casualty Insurance Co., Case No.: 2:20-cv-00620; Jennifer Nguyen et al. v. Travelers Casualty Insurance Co. of America et al., Case No.: 2:20-cv-00597; and La Cocina de Oaxaca LLC v. Tri-State Insurance Co. of Minnesota, Case No.: 2:20-cv-01176, all in the U.S. District Court for the Western District of Washington.


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