On Thursday, May 5, 2022, the Eleventh Circuit upheld the district court’s dismissal of four lawsuits brought against Aspen and other insurers. These cases were brought by Florida businesses seeking coverage for losses as a result of COVID-19 and government mandated shutdowns.
The court held that, under Florida law, policy holders are not entitled to recover for business interruption losses under policies covering “direct physical loss and damage” to property. The court also held that property which merely needs to be cleaned has not suffered a loss that is both direct and physical, and cited other courts from across the country which have come to similar conclusions in other cases involving business interruptions due to COVID-19. Sidley has handled similar appeals for Aspen previously, including a major win in the Seventh Circuit, and pending appeals in the Third, Fifth, Sixth, and Ninth Circuits.
In February 2022, the Eleventh Circuit heard arguments related to decisions involving six different insurers, and issued one written opinion on May 5, 2022. The opinion affirmed the dismissal in three of the cases, and affirmed in part the dismissal in the fourth.
The team included Virginia Seitz (Washington, D.C.) who argued Emerald Coast Restaurants, Inc., v. Aspen Specialty Insurance Company, No. 21-10190, and Rococo Steak, LLC. v. Aspen Specialty Insurance Company, No. 21-10672 in the Eleventh Circuit, Yvette Ostolaza (Dallas), Yolanda Garcia (Dallas), Robin Wechkin (Seattle), Chandler Rognes (Dallas), and Mason Parham (Dallas).