UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. _______________

SUN CUISINE, LLC d/b/a

ZEST RESTAURANT AND MARKET,

a Florida limited liability company

on behalf of itself and all

others similarly situated,

Plaintiffs,

CLASS ACTION

v.

JURY DEMAND

CERTAIN UNDERWRITERS AT LLOYD’S

LONDON Subscribing to Contract Number

B0429BA1900350 Under Collective

Certificate Endorsement 350OR100802,

Defendants.

_________________________________________/

CLASS ACTION COMPLAINT

I DONALD J. TRUMP, President of the United States, by the authority vested in me by the

Constitution and the laws of the United States of America, including sections 201 and 301 of the

National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social

Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that the COVID19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020

- President Donald J. Trump Proclamation on Declaring a National Emergency Concerning the

Novel Coronavirus Disease (COVID-19) Outbreak.

In concert with the efforts of President Trump and the White House Corona virus Task

Force to fight COVID-19, and based on guidance provided by Florida Surgeon General and State

Health Officer, Dr. Scott Rivkees, all persons in Florida shall limit their movements and personal

interactions outside of their home to only those necessary to obtain or provide essential services

or conduct essential activities.

- Florida Governor Rick DeSantis, Office Of The Governor Executive Order Number 20-91.

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Plaintiff, Sun Cuisine, LLC d/b/a Zest Restaurant and Market, on behalf of itself and all

others similarly situated, brings this action against Certain Underwriters at Lloyd’s London

Subscribing to Contract Number B0429BA1900350 under Collective Certificate Endorsement

350OR100802 (collectively, “Underwriter Defendants”) for a declaratory judgment of rights and

obligations under a contract of insurance and for Underwriter Defendants’ anticipated breach of

an insurance policy by denying business interruption coverage, extra expense coverage, and

additional coverages to Plaintiff and similarly situated all-risk commercial property insurance

policyholders who have suffered enormous business income losses and related covered expenses

resulting from the national emergency and resulting economic lock down enacted in almost every

state in the nation due to the COVID-19 pandemic, and states:

I. INTRODUCTION

1. On March 11, 2020, World Health Organization Director General Tedros Adhanom

Ghebreyesus declared the COVID-19 outbreak a worldwide pandemic: “WHO has been assessing

this outbreak around the clock and we are deeply concerned both by the alarming levels of spread

and severity, and by the alarming levels of inaction. We have therefore made the assessment that

COVID-19 can be characterized as a pandemic.”1

2. On March 16, 2020, President Donald J. Trump, the Centers for Disease Control

and Prevention (“CDC”), and members of the White House Coronavirus Task Force issued

guidance to the American public, styled as “30 Days to Slow the Spread,” to arrest the spread of

COVID-19. This guidance advised individuals to adopt far-reaching social distancing measures,

1

See https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themedia-briefing-on-COVID-19---11-march-2020

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such as working from home, avoiding shopping trips and gatherings of more than 10 people, and

staying away from bars, restaurants, and food courts.2

3. Following this presidential advice, many state government administrations and

local civil authorities across the nation enacted measures to protect the health and safety of their

residents, and the national population, from the person to person and surface to person spread of

this new coronavirus and control the number of individuals who may succumb to COVID-19. As

a result, many governmental entities entered civil authority orders suspending, or severely

curtailing business operations of non-essential businesses that either interact with the public or

provide gathering places for the individuals and encouraging everyone in the nation to stay-athome or shelter-in-place. Currently, almost all states within the U.S. have issued some sort of

“stay-at-home” order and ordered private non-essential business operations that interact with the

public to close or drastically cut back operations at their property.

4. The result of these pervasive restrictions and prohibitions has been catastrophic for

the economy, especially small businesses like restaurants and other food and beverage service

establishments, as well as retail stores, entertainment venues, and other small, medium, and large

businesses that have been forced to close, furlough employees, and endure a sudden shutdown of

cash flow that threatens their very survival.

5. Many businesses insure against such catastrophic events like the current unforeseen

COVID-19 pandemic through all-risk commercial property insurance policies. These policies

promise to indemnify the policyholder for actual business income losses incurred when business

operations are involuntarily suspended, interrupted, or curtailed by “direct physical loss of or

2

See https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf.

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damage to” the property or when access to the premises is prohibited by a civil authority order

issued because of damage to nearby property. This coverage is commonly known as “business

interruption coverage” or “business income loss and extra expense coverage” and is regularly

included in common standard form all-risk commercial property insurance policies either within

the body of the coverage provisions for the insured property or by way of separate endorsement.

6. The Underwriter Defendants, and most insurance companies who have issued allrisk commercial property insurance policies with business interruption coverage, are denying the

obligation to pay for business income losses and other covered expenses incurred by policyholders

for the physical loss of or damage to the insured property from this unprecedented national

emergency declared or for loss of business income sustained as the result of measures put in place

by the civil authorities to stop the rapid spread of COVID-19 among the population.

7. This action seeks a declaratory judgment that affirms that the national emergency

declared over the spread of COVID-19 constitutes physical loss or damage to the insured property,

triggering coverage under business income loss and extra expense coverage provisions, and

generally under the “all-risk” provisions of the standardized policies.

8. In addition, this action seeks a declaratory judgment affirming that the orders by

civil authorities to close non-essential business that resulted from the national COVID-19

emergency triggers coverage under the civil authority coverage provision

9. In addition, this action brings a claim against the Underwriter Defendants for their

anticipatory breach of their contractual obligation under all-risk commercial property insurance

policies to indemnify Plaintiff and others similarly situated for business losses, extra expenses, and

other related losses resulting from physical loss of or damages to the insured property and actions

taken in reaction to the national COVID-19 emergency by civil authorities.

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10. Plaintiff brings this action on behalf of a proposed class of policyholders who paid

premiums in exchange for all-risk commercial property insurance policies that include lost

business income, extra expense and civil authority coverages and do not include exclusions for

pandemics or presence of viruses.

II. JURISDICTION AND VENUE

11. This is an action asserting class action claims for declaratory relief and damages

from the anticipatory breach of all-risk commercial property insurance policies issued by the

Underwriter Defendants.

12. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 2201 and 2202

and is authorized to grant declaratory judgment under these statutes and pursuant to Federal Rule

of Civil Procedure 57.

13. This Court also has jurisdiction over this action pursuant to the Class Action

Fairness Act of 2005 (“CAFA”) (codified in 28 U.S.C. §§ 1332, 1453, 1711–1715). Diversity

exists among the Plaintiff and Defendants, there are more than one hundred members of the

putative Class, and the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2). In

determining whether the $5 million amount in controversy requirement of 28 U.S.C. § 1332(d)(2)

is met, the claims of the putative Class members are aggregated. 28 U.S.C. § 1332(d)(6).

14. This Court also has supplemental jurisdiction over the state law claim pursuant to

28 U.S.C. § 1367(a) because all claims alleged herein form part of the same case or controversy.

15. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because a substantial

part of the events giving rise to Plaintiff’s claims occurred here, and the Underwriter Defendants

transact business, engaged in misconduct, or may be found in this District.

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16. All conditions precedent to this action have occurred, been performed, or have been

waived.

III. THE PARTIES

17. Plaintiff, Sun Cuisine, LLC d/b/a Zest Restaurant and Market is a Florida limited

liability company authorized to do business and headquartered at 200 South Biscayne Blvd., Suite

200, Miami, FL 331331.

18. Plaintiff owns, operates, manages and controls restaurants and related food and

beverage operations at 200 South Biscayne Blvd., Suite 100 & 200 Miami, FL 33131.

19. On or about February 23, 2020, Defendant Underwriters issued commercial

property insurance policy no. 350TA100802 to Plaintiff. See Exhibit A.

20. Plaintiff has provided notice to the Underwriter Defendants of a claim for its lost

business income and other expenses incurred pursuant to the coverage provisions in the policy.

21. Defendant Underwriters at Lloyd’s London is composed of syndicates of individual

underwriters that share respective and several liability under issued insurance policies.

22. Upon information and belief, the liabilities under insurance policy no.

350TA100802 are shared among a syndicate of Certain Underwriters at Lloyd’s London,

subscribing to Contract Number B0429BA1900350 under Collective Certificate Endorsement

350OR100802.

IV. FACTUAL ALLEGATIONS

A. The Global COVID-19 Pandemic

23. Coronaviruses are a type of virus that often cause respiratory diseases in humans.

In the fall of 2019, a new mutation of coronavirus was detected in China and thought to have

originated in a “wet market” in Wuhan, China that sells exotic animals for food consumption.

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24. The new virus variation has biological similarities to a coronavirus known as

Severe Acute Respiratory Syndrome, and more commonly referred to by the acronym SARS. The

World Health Organization has named the new virus SARS-CoV-2, and it has become known as

COVID-19, short for coronavirus disease that developed in 2019 as a respiratory illness in humans

exposed to the virus.

25. Within months of COVID-19 being identified and named, the virus quickly spread

from China to other parts of the world, including the United States. On March 11, 2020, World

Health Organization Director, General Tedros Adhanom Ghebreyesus, declared the COVID-19

outbreak a worldwide epidemic of a virus for which humans have no natural immunity. In other

words, a pandemic.

26. Vaccines are prophylactic treatments that protect against particular viruses. Unlike

influenza, there is no vaccine or other preventive substance to stimulate the production of

antibodies in humans to provide immunity against COVID-19. To date, it has been reported that

almost 213,000 people have died worldwide. In the United States alone, over 57,000 have died

from COVI-19 and over one million people confirmed infected with the coronavirus.3 These

numbers are expected to grow exponentially and have taxed the United States’ health care delivery

system to near collapse; the simultaneous overflow of critically ill patients combined with a

scarcity of ventilators for patients and personal protective equipment for health care providers is

stretching the capacity of hospitals to the breaking point.

27. Without a vaccine to protect against the entire national population contracting

COVID-19, effective control of the virus outbreak relies on measures designed to reduce human3

See https://www.worldometers.info/coronavirus/ (last visited April 9, 2020).

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to-human and surface-to-human exposure. Recent information on the CDC’s website states that

the virus spreads when people are within 6-feet of each other, or when a person comes in contact

with a surface or object that has the virus on it.4 Various other sources state that close contact with

a person with the virus or surfaces where the virus is present, can transmit the virus.5

28. Transmission of the coronavirus is particularly acute in places the public normally

gathers to socialize, eat, drink, shop, be entertained, and go for recreation. This is why the CDC

recommends that, in viral outbreaks, individuals who are infected stay at home and those who are

not sick engage in preventative measures. Some such measures include constant hand washing

and the avoidance of activities that might bring individuals into close proximity with people

injected with the virus, or surfaces where the virus resides. However, because these

recommendations have proven ineffective to minimize the spread of COVID-19, governments

have elevated containment efforts through national and state orders of emergency. Civil authorities

have in unison issued orders closing or severely curtailing operations at non-essential business

establishments, including restaurants, bars, hotels, theaters, personal care salons, gyms, and

schools, and mandated social distancing among the population. This has caused the cancelation

of sporting events, parades, and concerts, the closure of amusement parks, and substantial travel

restrictions. In addition, to conserve medical supplies, orders have been issued prohibiting the

4

See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-COVIDspreads.html

5

See Persistence of coronaviruses on inanimate surfaces and their inactivation with biocidal

agents, Vol. 104, Kemp., G., et al., Journal of Hospital Infection, No. 3, March 2020, pages 246-

251 (remains infectious from 2 hours to 28 days depending on conditions); see also

https://www.ucsf.edu/news/2020/02/416671/how-new-coronavirus-spreads-and-progresses-andwhy-one-test-may-not-be-enough (doorknobs and table tops can contain the virus);

https://www.nytimes.com/2020/03/02/health/coronavirus-how-it-spreads.html (virus can remain

on metal, glass and plastic for several days).

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performance of non-urgent or non-emergency elective medical procedures and surgeries, forcing

the suspension of operations at many medical, surgical, therapeutic, and dental practices.

29. As COVID-19 nationwide spread increased despite social distancing restrictions,

states enacted more even more draconian measures. For instance, in Florida, Governor Ron

DeSantis has issued an Executive Order closing restaurants (other than for deliveries), bars,

taverns, pubs, night clubs, banquet halls, cocktail lounges, cafeterias, movie theaters, concert

houses, auditoriums, playhouses, bowling alleys, arcades, gymnasiums, and fitness studios. On

March 25, 2020, Miami-Dade County Mayor Carlos Gimenez issued an emergency order

restricting hotels, motels and lodging facilities from accepting any occupants.

30. The COVID-19 pandemic is tantamount to a “natural disaster”. Like other specific

disasters, such as hurricanes or earthquakes, it involves substantial damage to property, hardship,

suffering, and loss of life.

31. Unsurprisingly, already, at least one State Supreme Court has already recognized,

in Friends of DeVito v. Wolf, that policyholders’ business losses resulting from the pandemic are

indistinguishable from those caused by earthquakes, fires and the other casualty events for which

property-based insurance coverage has always been intended to provide coverage:

We agree with Respondents that the COVID-19 pandemic qualifies as a “natural

disaster” under the Emergency Code...

2020 Pa. LEXIS 1987, at *31 (Pa. April 13, 2020).

B. The Underwriter Defendants’ Standard Uniform All-Risk Commercial Property

Insurance Policies

32. The Underwriter Defendants’ common standard form insurance policies issued to

Plaintiff and the Class members are “all risk” commercial property insurance policies which cover

loss or damage to the covered premises resulting from all risks other than those expressly excluded.

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33. The Underwriter Defendants use standard common form insurance policies issued

by the Insurance Services Office (ISO), an insurance advisory organization that provides statistical

and actuarial information to businesses and provides ISO commercial property forms to insurance

companies for use in commercial property insurance policies.

34. These commercial property insurance forms include a standard policy form titled

“Business Income (and Extra Expense) Coverage Form.” This form is identified by the ISO under

common form number “CP 00 30.”

35. Under the Building and Personal Property Form (CP 00 10), Coverage is defined

as:

We will pay for direct physical loss of or damage to Covered

Property at the premises described in the Declarations caused by or

resulted from any Covered Cause of Loss.

36. Under the Business Income Coverage Form (CP 00 30) coverage is provided as

follows:

We will pay for the actual loss of Business Income you sustain due

to the necessary “suspension” of your “operations” during the

“period of restoration.” The “suspension” must be caused by direct

physical loss of or damage to property at premises which are

described in the Declarations and for which a Business Income

Limit of Insurance is shown in the Declarations. The loss or damage

must be caused by a Covered Cause of Loss.

37. The provision for “Additional Coverages-Civil Authority” provides as follows:

When a Covered Cause of Loss causes damage to property other

than property at the described premises, we will pay for the actual

loss of Business Income you sustain and necessary Extra Expense

caused by action of civil authority that prohibits access to the

described premises, provided that both the following apply: (1)

Access to the area immediately surrounding the damaged property

is prohibited by civil authority as a result of the damage, and the

described premises are within that area but are not more than one

mile from the damaged property; and (2) the action of civil authority

is taken in response to dangerous physical conditions resulting from

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the damage or continuation of the Covered Cause of Loss that

caused the damage or the action is taken to enable a civil authority

to have unimpeded access to the damaged property.

38. Plaintiff and all similarly situated Class members have suffered a direct physical

loss of their insured property due to the national COVID-19 emergency and lock down of the

economy and resulting civil authority’ orders.

C. Plaintiff’s Factual Allegations

39. On February 23, 2020, the Underwriter Defendants issued a standard form ISO allrisk commercial property insurance policy to Plaintiff under which Plaintiff agreed to make

premium payments in exchange for the Underwriter Defendants’ promise to indemnify Plaintiff

for losses including, but not limited to, business income losses at the insured properties.

40. The insured properties are defined in the policy, but are generally described as a

restaurant location in Miami, Florida: 200 S Biscayne Blvd, Ste 100 & 200 Miami, FL 33131. .

41. The policy, like all Class members’ policies, is an all-risk commercial property

insurance policy that provides coverage for physical loss of or damage to the insured property from

all risks unless expressly excluded by language in the body of the policy or through a separate

exclusion endorsement. There is no exclusion in these standard policies for business interruption

caused by a declaration of a national emergency and urgent lock down of non-essential businesses

and at-home quarantine of the vast majority of the national population due to a global pandemic.

42. Plaintiff’s policy provides coverage between the periods of 4February 23 2020, and

February 23, 2021, and is in full effect as Plaintiff has faithfully paid the premiums due which

Underwriter Defendants have accepted.

43. Plaintiff has paid the policy premiums to the Underwriter Defendants specifically

to provide coverage for lost business income and extra expenses in the event of an involuntary

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business interruption as the result of physical loss of or damage to the insured properties or for

loss resulting from civil authority orders, and had the reasonable expectation that coverage would

be provided for risks that were not expressly excluded

44. On March 16, 2020, Miami-Dade County Mayor Carlos Gimenez issued

Emergency Order 02-20 restricting operating times for all restaurants within Miami-Dade County

to 6 am to 11 pm other than for delivery.

45. On March 17, 2020, Governor Ron DeSantis issued Executive Order 20-68 further

restricting restaurant operations in the State of Florida. On the same day, Miami-Dade County

Mayor Carlos Gimenez issued Emergency Order 03-20 closing all restaurants in Miami-Dade

County other than for delivery. These closings and restrictions remain in effect.

46. Then, on March 30, 2020 Governor Ron DeSantis issued Executive Order 20-69,

explicitly limiting access to businesses in South Florida:

I hereby order Miami-Dade County, Broward County, Palm Beach County and

Monroe County to restrict public access to businesses and facilities deemed nonessential pursuant to the guidelines established by Miami-Dade County pursuant to

its March 19, 2020 Emergency Order 07-20, and as modified by subsequent

amendments and orders prior to the date of this order.

47. Other similar orders have been issued that close or restrict access to all nonessential business operations or prohibit public access to the property of non-essential businesses

where the individuals gather in close proximity to each other.

48. The civil authority orders expressly state that the closing of non-essential

businesses, reductions in permitted operating hours, and social distancing restrictions placed on

the public are necessary emergency measures to protect the health and safety of all residents in the

nation intended to stop the spread of COVID-19 through human-to-human and surface-to-human

contact with the virus.

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49. The nature of Plaintiff’s business is food and beverage service to the public and

Plaintiff’s property is a place where individuals socialize and gather in close proximity. As a direct

result of the existence of the national COVID-19 emergency Plaintiff has a physical loss of its

property for regular business operations including its food and beverage operations other than for

take-out and delivery. The physical loss of its property has resulted in significant business income

loss and other expenses.

50. Plaintiff has faithfully paid the premiums and the Underwriter Defendants have

accepted payment and as such are obligated to honor their contractual duty to provide coverage

for the business losses, extra expenses, and other expenses suffered by Plaintiff.

51. Upon information and belief, the Underwriter Defendants have no intention of

providing any coverage to Plaintiff under the policy due to any business income losses or expenses

incurred by Plaintiff due to the national COVID-19 emergency and resulting civil authority orders.

D. The COVID-19 Pandemic has Affected Policyholders Nationwide.

52. The ease of exposure to this coronavirus and rapid spread of COVID-19 is

physically causing the loss of private commercial property in Miami-Dade County, the State of

Florida and throughout the United States, and threatening the very survival of thousands of

restaurants, retail establishments, and other businesses that have had their business operations

suspended or curtailed due to the national COVID-19 emergency and resulting civil authority

orders.

53. All but seven states have enacted “stay-at-home” orders, thirty-five states have

closed all non-essential businesses with other states enacting measures to curtail business

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operations, all fifty states have closed schools, and all but one state has closed restaurants and bars

for services other than take-out and delivery.6

54. Upon information and belief, the Underwriter Defendants have no intention of

providing any coverage or indemnification under the policies to any policyholder if the business

income losses and expense relate to the national COVID-19 emergency despite the absence of an

applicable exclusion for a national emergency and lock down of non-essential businesses..

55. A bipartisan group from the U.S. House of Representatives recently sent a letter to

various insurance industry trade groups requesting that their members recognize financial losses

relating to COVID-19 under the standard business interruption coverage. In response, the industry

trade groups stated: “Business interruption policies do not, and were not designed to, provide

coverage against communicable diseases such as COVID-19.”7 Upon information and belief, the

Underwriter Defendants belong to and support the trade groups’ position.

56. In addition, many states’ departments of insurance have issued advisories to

business owners that COVID-19 is not an insured peril and there will be no coverage for business

interruption. This is disinformation being published to discourage business owners from filing

business interruption coverage claims, and ignores the national emergency proclaimed by the

President.

57. For instance, Arkansas Insurance Department Bulletin No. 9-2020 states that “In

most BII policies, coverage is triggered when the policyholder sustains physical damage to insured

property caused by a covered peril resulting in quantifiable business interruption loss . . .viruses

6

See https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-addresscoronavirus/.

7 See https://www.insurancejournal.com/news/national/2020/03/20/561810.htm

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and disease are typically NOT an insured peril unless added by endorsement.” (emphasis in the

original).8

58. The South Carolina Department of Insurance issues “Guidance” on business

interruption insurance stating that under the business income policy, there likely is no coverage

from losses occurring as a result of a virus.9

59. The insurance industry is also actively advising Insurance Commissioners that they

do not intend to provide coverage for business interruption related to COVID-19. As a result,

many small businesses that maintain commercial multi-peril insurance policies with business

interruption coverage may believe that they may have large uninsured losses because they see

similar information from the insurance industry stating that such policies do not cover the national

COVID-19 emergency.

60. Along these same lines, the State of Connecticut Insurance Department, Maryland

Insurance Administration and the West Virginia Office of the Insurance Commissioner issued

nearly identical notices supporting the insurance companies’ reasons for denying business

interruption claims stating that the potential losses from such perils [like COVID-19] are so

extreme that providing coverage would jeopardize the financial solvency of property insurers.10

8

See https://insurance.arkansas.gov/uploads/resource/documents/9-2020.pdf

9

See https://www.doi.sc.gov/948/COVID-19.

10See https://portal.ct.gov/CID/Coronavirus/Business-Interruption-Insurance-Notice;

https://insurance.maryland.gov/Pages/newscenter/NewsDetails.aspx?NR=2020256;

https://www.wvinsurance.gov/Portals/0/pdf/pressrelease/20-

08%20Business%20Interruption%20Insurance.pdf?ver=2020-03-26-222830-620.

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61. John F. King, Insurance and Safety Fire Commission for the State of Georgia issued

Bulletin 20-EX-3 stating that losses from COVID-19 are excluded losses.11 Vicki Schmidt, Kansas

Insurance Department Commission issued a similar Bulletin stating it was her “understanding it is

unlikely that a business policy would cover losses related to COVID-19.”12

62. Other state governments anticipate that insurance companies will breach their

obligation to provide coverage for business losses due to the national COVID-19 emergency and

have introduced bills requiring every insurance policy insuring against physical loss of or damage

to property, which includes the loss of use and occupancy, be construed to include, among other

covered perils, coverage for business interruption due to global, national, state and local measures

needed to curtail COVID-19.13

63. Many civil authority orders have made specific findings that the COVID-19

pandemic is a national and state emergency that has caused the loss of use of or damage to property.

64. Plaintiff seeks a declaratory judgment that the national COVID-19 emergency

constitutes physical loss of the insured property triggering the business income loss and extra

expense coverages provided in common standard commercial property insurance policies with no

exclusions to coverage for a national emergency.

65. Plaintiff seeks a declaratory judgment that the measures put into place by civil

authorities prohibiting access to Plaintiff’s and similarly situated Class members’ property trigger

the civil authority coverage provided in these same policies.

11 See https://www.oci.ga.gov/ExternalResources/Announcements/Bulletin-3172020-1619.pdf.

12 See https://insurance.ks.gov/documents/department/COVID19-FAQ.pdf.

13 See House Bill No. 858, State of Louisiana House of Representatives. Similar legislation has

been introduced in Massachusetts (Senate Bill Senate Docket. 2888); New Jersey (Assembly No.

3844); Sate of New York (Assembly 10226); and Ohio (House Bill No. 589).

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V. CLASS ACTION ALLEGATIONS

66. Plaintiff brings this lawsuit pursuant to Rule 23 of the Federal Rules of Civil

Procedure on behalf of itself and all other persons similarly situated Procedure 23(a), b(2), and

(b)(3).

67. The Nationwide Class is defined as:

All entities who have entered into standard form all-risk commercial

property insurance policies with the Underwriter Defendants, where such

policies provide for business income loss and extra expense coverage and

do not exclude coverage for a national emergency due to a pandemic, and

who have physical loss of or damage to the insured property due to the

national COVID-19 emergency and resulting civil authority orders.

68. The Florida Subclass is defined as:

All Florida entities who have entered into standard form all-risk commercial

property insurance policies with the Underwriter Defendants, where such

policies provide for business income loss and extra expense coverage and

do not exclude coverage for a national emergency due to a pandemic, and

who have physical loss of or damage to the insured property due to the

national COVID-19 emergency and resulting civil authority orders.

69. Excluded from each class are the Underwriter Defendants, their employees,

officers, directors, legal representatives, heirs, successors, and wholly or partly owned subsidiaries

or affiliated companies; Class Counsel and their employees; and the judicial officers and their

immediate family members and associated court staff assigned to this case.

70. Plaintiff reserves the right to modify, expand, or amend the definitions of the

proposed Classes following the discovery period and before the Court determines whether class

certification is appropriate.

71. Certification of Plaintiff’s claims for class-wide treatment is appropriate because

Plaintiff can prove the elements of its claims on a class-wide basis using the same evidence as

would be used to prove those elements in individual actions alleging the same claims.

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Numerosity

72. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(1). The Class

numbers at least in the thousands and consists of geographically dispersed business entities who

are insured for business interruption losses. The Underwriter Defendants sell a large number of

insurance policies in the state of Florida and in most if not all the other 49 states and therefore

joinder of the Class members is impracticable.

73. The identity of Class members is ascertainable, as the names and addresses of all

Class members can be identified in the Underwriter Defendants’ or their agent’s books and records.

Plaintiff anticipates providing appropriate notice to the certified Class in compliance with Fed. R.

Civ. P. 23(c)(2)(A) and/or (B), to be approved by the Court after class certification, or pursuant to

court order under Fed. R. Civ. P. 23(d).

Typicality

74. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(3) because Plaintiff’s

claims are typical of the claims of each of the Class members, as all Class members were and are

similarly affected by the nationwide spread of the coronavirus into all 50 states and their claims

arise from the same standard form all-risk commercial property insurance policies entered into

with the Underwriter Defendants. Each Class member’s insurance policy contains the same ISOissued form providing coverage for business income loss and other related expenses. None of the

forms exclude coverage due to a national emergency, global pandemic or presence of a virus. As

such, a declaratory judgment as to the rights and obligations under Plaintiff’s policy will address

the rights and obligations of all Class members, and Plaintiff’s claim of anticipatory breach by

Underwriter Defendants is typical of the claims of each Class member based upon information

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from the insurance industry that claims submitted for business interruption coverage will be

denied.

Adequacy of Representation

75. Plaintiff is committed to prosecuting the action, will fairly and adequately protect

the interests of the members of the Class, and has retained counsel competent and experienced in

class action litigation, including litigation relating to insurance policies. Plaintiff has no interests

antagonistic to or in conflict with other members of the Class. Plaintiff anticipates no difficulty in

the management of this litigation as a class action.

Commonality

76. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(2) because there are

questions of law and fact that are common to the class. These common questions predominate

over any questions affecting only individual Class members. The questions of law and fact

common to the Class include, but are not limited to:

a. Whether there is an actual and bona fide controversy between Plaintiff and

Underwriter Defendants as to the rights, duties, responsibilities, and obligations

of the parties under the business interruption coverage provisions contained in

common standard commercial property insurance policies;

b. Whether the nationwide COVI-19 emergency caused physical loss of or

damage to covered premises;

c. Whether the civil authority orders prohibiting access to insured premises due to

the national COVID-19 emergency triggers business income loss under civil

authority coverage contained in common standard commercial property

insurance policies;

d. Whether the national COVID-19 emergency and civil authority orders caused

a period of restoration to begin for premises insured for business income loss

and extra expenses under common standard commercial property insurance

policy;

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e. Whether civil authority orders resulting from the national COVID-19

emergency constitutes a prohibition of access to the insured property under

common standard commercial insurance policies;

f. Whether the national COVID-19 emergency triggers “additional coverages”

under common standard commercial property insurance policies;

g. Whether Plaintiff and the Class members suffered damages, or will suffer

damages, as a result of the anticipatory breach by the Underwriter Defendants;

h. Whether further and necessary relief, including damages, is warranted under

27 U.S.C. §2202 for Plaintiff and Class members; and

i. Whether Plaintiff and Florida Subclass members are entitled to an award of

attorney fees pursuant to Fla. Stat. §627.428.

Superiority/Predominance

77. This action satisfies the requirements of Fed. R. Civ. P. 23(b)(3). A class action is

superior to other available methods for the fair and efficient adjudication of the rights of the Class

members. The joinder of individual Class members is impracticable because of the vast number

of Class members who have entered into common standard form commercial property insurance

policies with the Underwriter Defendants.

78. Because a declaratory judgment as to the rights and obligations under common

standard commercial property insurance policies will apply to all Class members, most or all Class

Members would have no rational economic interest in individually controlling the prosecution of

specific actions. The burden imposed on the judicial system by individual litigation, and to the

Underwriter Defendants, by even a small fraction of the Class members, would be enormous.

79. In comparison to piecemeal litigation, class action litigation presents far fewer

management difficulties, far better conserves the resources of both the judiciary and the parties,

and far more effectively protects the rights of each Class member. The benefits to the legitimate

interests of the parties, the court, and the public resulting from class action litigation substantially

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outweigh the expenses, burdens, inconsistencies, economic infeasibility, and inefficiencies of

individualized litigation. Class adjudication is simply superior to other alternatives under Fed. R.

Civ. P. 23(b)(3)(D). Class treatment will also avoid the substantial risk of inconsistent factual and

legal determinations on the many issues in this lawsuit.

80. Plaintiff is unaware of any obstacles likely to be encountered in the management of

this matter that would preclude its maintenance as a class action. Rule 23 provides the Court with

the authority and flexibility to maximize the efficiencies and benefits of the class mechanism and

reduce management challenges. The Court may, on motion of Plaintiff or on its own

determination, certify nationwide and statewide classes for claims sharing common legal

questions; utilize the provisions of Fed. R. Civ. P. 23(c)(4) to certify particular claims, issues, or

common questions of law or of fact for class-wide adjudication; certify and adjudicate bellwether

class claims; and utilize Fed. R. Civ. P. 23(c)(5) to divide any Class into subclasses.

Requirements of Fed. R. Civ. P. (2) B(2)

81. The Underwriter Defendants have acted or failed to act in a manner generally

applicable to the class, thereby making appropriate declaratory relief with respected to the Class

as a whole.

VI. CLAIMS

COUNT I

DECLARATORY JUDGMENT, 28 U.S.C. §§ 2201 and 2202

On behalf of the Plaintiff and the Class Members

82. Plaintiff incorporates by reference paragraphs 1 – 81 as though fully set forth

herein.

83. Under 28 U.S.C. §§ 2201 and 2202, this Court may declare the rights and other

legal relations of the parties in dispute whether or not further relief is or could be sought.

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84. An actual and bona-fide controversy exists between the Plaintiff, the Class

members and the Underwriter Defendants as to the rights and obligations under common standard

commercial property insurance policies that provide coverage for business income loss and extra

expense in that:

a. Plaintiff and the Class members have incurred physical loss of or damage

to covered property from the national COVID-19 emergency and resulting

civil authority orders;

b. Plaintiff and Class members have incurred business income loss and extra

expenses due to the national COVID-19 emergency and the resulting civil

authority orders;

c. Due to the nature of their business operations, Plaintiff and Class Members

have suffered an involuntary physical loss of or damage to insured property

that resulted from the national COVID-19 emergency and resulting civil

authority orders;

d. Plaintiff contends that the national COVID-19 emergency triggers coverage

under common standard commercial property insurance policies where the

policy does not include an exclusion for a pandemic;

e. Plaintiff further contends that the national COVID-19 emergency and

resulting civil authority orders triggers “additional coverage” under

common standard commercial property insurance policies; and

f. Upon information and belief, the Underwriter Defendants deny and dispute

that the business income loss, extra expense and civil authority and any

other coverage provided for in common standard commercial property

insurance policies provides coverage related to the national COVID-19

emergency.

85. Plaintiff seeks a Declaratory Judgment on behalf of itself and all Class members

that the common standard commercial property insurance policy provides coverage for unexpected

and unexcluded causes of loss, including business income loss and extra expenses due to the

national COVID-19 emergency and the resulting civil authority orders where there is no exclusion

for coverage for a pandemic.

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86. Plaintiff also seeks a Declaratory Judgment on behalf of itself and all Class

members that the forced closures of their premises or curtailment of their operations due to orders

from state or local civil authorities is a prohibition of access to their premises and triggers business

income loss and extra expense coverage under common standard commercial property insurance

policies.

87. Federal Rule of Procedure 57 permits the Court to determine the existence or nonexistence of any right, duty, power, liability, privilege, or of any fact upon which the parties’ legal

relations depend.

88. The declaration sought with regard to the instant controversy is of a justiciable

nature, does not amount to an advisory decree, and will settle the controversy between the parties

and on behalf of all Class members because of the uniform nature of the Underwriter Defendants’

insurance policies.

WHEREFORE Plaintiff requests that this Court enter a Declaratory Judgment declaring

that the common standard form all-risk commercial property insurance policy provides for

business income loss, extra expense, civil authority and additional coverages due to the national

COVID-19 emergency and resulting civil authority order and for further necessary and proper

relief including damages and an award of attorney fees under 28 U.S.C. §2202.

COUNT II

ANTICIPATORY BREACH OF CONTRACT

89. Plaintiff incorporates by reference paragraphs 1 – 81 as though fully set forth

herein.

90. Plaintiff and each Class member has a common standard commercial property

insurance policy issued by the Underwriter Defendants.

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91. Plaintiff and all similarly situated Class members have performed all their

obligations as specified by the policy including the payment of all premiums due.

92. Plaintiff and the Class members’ insurance policies all contain standard form

language that provide coverage for business income loss and extra expenses for enumerated perils

as well as for unexpected and unexcluded causes of loss.

93. The policies provide that the Underwriter Defendants will pay for the actual loss of

business income due to the “suspension” of “operations.”

94. The policies also provide that the Underwriter Defendants will pay for any

necessary expenses that Plaintiff and the Class members incur that they would not have incurred

had there been no physical loss of or damage to their property.

95. Plaintiff’s and the Class members’ common standard commercial property

insurance policies further provide coverage for as well as the suspension of business operations

due to closures caused by the action of civil authorities.

96. As stated above, Plaintiff and Class members had to involuntarily close their

insured premises to the public and cease or substantially reduce their operations due to the national

COVID-19 emergency and resulting measures put in place by civil authority orders and thus have

incurred substantial business income losses and extra expenses.

97. Upon information and belief, the Underwriter Defendants intend to refuse

performance under the common standard commercial property insurance policies. Specifically,

the Underwriter Defendants intend to deny or refuse to provide coverage for business income

losses or extra expenses incurred related to the national COVID-19 emergency and resulting civil

authority orders.

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98. As a result of the Underwriter Defendants’ repudiation or anticipatory breach of the

insurance policies, Plaintiff and the Class members have suffered actual damages.

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated Class members

seeks compensatory damages resulting from the Underwriter Defendants’ repudiation or

anticipatory breach of contract and further seek all relief deemed appropriate by this Court,

including attorneys’ fees and costs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals, demand

judgment against the Underwriter Defendants as follows:

(1) Declaring this action to be a proper class action maintainable pursuant to Rule

23(a), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring

Plaintiff and its counsel to be representatives of the Class;

(2) Issuing a Declaratory Judgment declaring the parties’ rights and obligations under

the all-risk commercial property insurance policies;

(3) Awarding Plaintiff and the Class “further necessary and proper relief”, including

damages, in accordance with 28 U.S.C. §2202;

(4) Awarding Plaintiff and the Class compensatory damages from the Underwriter

Defendants’ anticipatory breach of the insurance policies in an amount to be determined at trial,

together with appropriate prejudgment interest at the maximum rate allowable by law;

(5) Awarding Plaintiff and the Class costs and disbursements and reasonable

allowances for the fees of Plaintiff’s and the Class’s experts, and reimbursement of expenses;

(6) Awarding Plaintiff and Florida Subclass members attorneys’ fees pursuant to Fla.

Stat. § 627.428; and

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(7) Awarding such other and further relief the Court deems just, proper, and equitable.

DEMAND FOR A JURY TRIAL

Plaintiff and the Class request a jury trial for any and all Counts for which a trial by jury is

permitted by law.

Respectfully submitted May 1, 2020.

/s/ Harley S. Tropin

Harley S. Tropin, Esq.

Florida Bar No. 241253

hst@kttlaw.com

Benjamin Widlanski, Esq.

Florida Bar No. 1010644

bwidlanski@kttlaw.com

Gail A. McQuilkin, Esq.

Florida Bar No. 969338

gam@kttlaw.com

Javier A. Lopez, Esq.

Florida Bar No. 16727

jal@kttlaw.com

Robert Neary, Esq.

Florida Bar No. 81712

rn@kttlaw.com

KOZYAK TROPIN & THROCKMORTON LLP

2525 Ponce de Leon Blvd., 9th Floor

Coral Gables, FL 33134

Tel: (305) 372-1800 / Fax: (305) 372-3508

Counsel for Plaintiff

Daniel Tropin, Esq.

Florida Bar No. 100424

tropin@kolawyers.com

Jonathan M. Streisfeld, Esq.

Florida Bar No. 117447

streisfeld@kolawyers.com

KOPELOWITZ OSTROW

FERGUSON WEISELBERG GILBERT

One West Las Olas Blvd., Suite 500

Fort Lauderdale, FL 33301

Tel: 954-525-4100 / Fax: 954-525-4300

Counsel for Plaintiff

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