UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. _______________

GV KB STORE LLC d/b/a Stefano Versace

Gelato, a Florida limited liability company,

and GV SIESTAKEY LLC d/b/a Stefano

Versace Gelato, a Florida limited liability

company, on behalf of themselves and all

others similarly situated,

Plaintiffs,

CLASS ACTION

v.

JURY DEMAND

SCOTTSDALE INSURANCE COMPANY,

Defendant.

_________________________________________/

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.

Plaintiffs GV KB Store LLC d/b/a Stefano Versace Gelato and GV Siestakey LLC d/b/a

Stefano Versace Gelato on behalf of themselves and all others similarly situated, bring this action

against Scottsdale Insurance Company for a declaratory judgment of rights and obligations under

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a contract of insurance and for Defendant’s anticipated breach of an insurance policy by denying

business interruption coverage, extra expense coverage, and additional coverages to Plaintiffs 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,

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

1

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

2

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

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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

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.

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6. Defendant, and most insurance companies who have issued all-risk 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 Defendant for its anticipatory

breach of its contractual obligation under all-risk commercial property insurance policies to

indemnify Plaintiffs 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.

10. Plaintiffs bring 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.

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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

Defendant.

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 Plaintiffs and Defendant, 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 Plaintiffs’ claims occurred here, and the Defendant transacts

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

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

waived.

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III. THE PARTIES

17. Plaintiff, GV KB Store LLC d/b/a Stefano Versace Gelato is a Florida limited

liability company authorized to do business and headquartered at 260 Crandon Blvd, Space C13,

Key Biscayne, Florida 33149.

18. Plaintiff GV Siestakey LLC d/b/a Stefano Versace Gelato is a Florida limited

liability company authorized to do business and headquartered at 5212 1⁄2 Ocean Blvd, Siesta Key,

Florida 34242.

19. Plaintiffs own, operate, manage and control restaurants that serve ice cream and

related food and beverages.

20. Defendant Scottsdale Insurance Company is an Ohio corporation with its principal

place of business located at One West Nationwide Blvd, Columbus, Ohio 43215.

21. At all material times, Defendant engaged in substantial and not isolated activity on

a continuous and systematic basis in the state of Florida, by issuing and selling commercial

property insurance policies in Florida and by contracting to insure property and indemnify

policyholders in Florida.

22. Under the Service of Suit provisions in the standard commercial property insurance

policies issued to Plaintiffs, service of process on Defendant is made by serving the Chief Financial

Officer of the Florida, located at 200 East Gaines Street, Tallahassee Florida 32399.

23. On or about November 27, 2019 Defendant issued commercial property insurance

policy no. CPS3308111 to GV KB Store and policy no.CPS3308113 to GV Siestakey LLC on

November 29, 2019. See Exhibits A and B.

24. Plaintiffs each provided notice to Defendant of their claims for lost business income

and other expenses incurred pursuant to the coverage provisions in the policies.

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IV. FACTUAL ALLEGATIONS

A. The Global COVID-19 Pandemic

25. 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.

26. 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.

27. 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.

28. 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 230,000 people have died worldwide. In the United States alone, over 61,000 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

3

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

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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.

29. 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 humanto-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

30. 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

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-progressesand-why-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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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

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.

31. 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.

32. 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.

33. 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).

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B. The Defendant’s Standard Uniform All-Risk Commercial Property Insurance

Policies

34. Defendant’s common standard form insurance policies issued to Plaintiffs 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.

35. Defendant uses 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.

36. 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.”

37. 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.

38. 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.

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

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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

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.

40. Plaintiffs 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. Plaintiffs’ Factual Allegations

41. On November 27, 2019 Defendant issued a standard form ISO all-risk commercial

property insurance policy to Plaintiff GV KB Store under which it agreed to make premium

payments in exchange for Defendant’s promise to indemnify Plaintiff for losses including, but not

limited to, business income losses at the insured property located at 260 Crandon Blvd Space 213,

Key Biscayne, Florida 33149.

42. On November 29, 2019, Defendant issued a standard form ISO all-risk commercial

property insurance policy to Plaintiff GV Siestakey LLC under which it agreed to make premium

payments in exchange for Defendant’s promise to indemnify Plaintiff for losses including, but not

limited to, business income losses at the insured property located at 5212 1⁄2 Ocean Blvd, Siesta

Key, Florida 34242

43. Plaintiffs’ policies, like all Class members’ policies, are all-risk commercial

property insurance policies that provide coverage for physical loss of or damage to the insured

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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.

44. Plaintiff GV KB Store LLC’s policy provides coverage between the periods of

November 27, 2019 and November 27, 2020 and is in full effect as Plaintiff has faithfully paid the

premiums due which Defendant has accepted.

45. Plaintiff GV Siestakey LLC’s policy provides coverage between the periods of

November 29, 2019 and November 29, 2020, and is in full effect as Plaintiff has faithfully paid

the premiums due which Defendant has accepted

46. Plaintiffs have paid the policy premiums to Defendant specifically to provide

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

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

from civil authority orders, and each had the reasonable expectation that coverage would be

provided for risks that were not expressly excluded.

47. 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.

48. 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.

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49. 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.

50. 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.

51. 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.

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

and each 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 Plaintiffs have a physical

loss of their property for regular business operations including its food and beverage operations

other than for take-out and delivery. The physical loss of the property has resulted in significant

business income loss and other expenses.

53. Plaintiffs each faithfully paid the premiums and Defendant has accepted payment

and as such is obligated to honor its contractual duty to provide coverage for the business losses,

extra expenses, and other expenses suffered by Plaintiffs.

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54. Upon information and belief, Defendant has no intention of providing any coverage

to Plaintiffs under their policies due to any business income losses or expenses incurred by

Plaintiffs due to the national COVID-19 emergency and resulting civil authority orders.

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

55. 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, Sarasota

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.

56. 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

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

57. Upon information and belief, Defendant has 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..

58. 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

6

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

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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.

59. 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.

60. 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

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

original).8

61. 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

62. 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

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

8

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

9

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

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

COVID-19 emergency.

63. 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

64. 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

65. 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

10 Seehttps://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.

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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66. 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.

67. Plaintiffs seek 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.

68. Plaintiffs seek a declaratory judgment that the measures put into place by civil

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

the civil authority coverage provided in these same policies.

V. CLASS ACTION ALLEGATIONS

69. Plaintiffs bring this lawsuit pursuant to Rule 23 of the Federal Rules of Civil

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

and (b)(3).

70. The Nationwide Class is defined as:

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

property insurance policies with Defendant, 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.

71. The Florida Subclass is defined as:

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

property insurance policies with Defendant, 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.

72. Excluded from each class is Defendant, its employees, officers, directors, legal

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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.

73. Plaintiffs reserve 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.

74. Certification of Plaintiffs’ claims for class-wide treatment is appropriate because

Plaintiffs can prove the elements of their 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.

Numerosity

75. 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 Defendant sells 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.

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

Class members can be identified in the Defendant’s or its agent’s books and records. Plaintiffs

anticipate 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

77. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(3) because Plaintiffs’

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

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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 Defendant. Each Class member’s insurance policy contains the same ISO-issued 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 these policies will address the rights

and obligations of all Class members, and Plaintiffs’ claim of anticipatory breach by Defendant is

typical of the claims of each Class member based upon information from the insurance industry

that claims submitted for business interruption coverage will be denied.

Adequacy of Representation

78. Plaintiffs are committed to prosecuting the action, will fairly and adequately protect

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

class action litigation, including litigation relating to insurance policies. Plaintiffs have no interests

antagonistic to or in conflict with other members of the Class. Plaintiffs anticipate no difficulty in

the management of this litigation as a class action.

Commonality

79. 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 Plaintiffs and

Defendant 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;

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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;

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 Plaintiffs and the Class members suffered damages, or will suffer

damages, as a result of the anticipatory breach by Defendant;

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

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

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

attorney fees pursuant to Fla. Stat. §627.428.

Superiority/Predominance

80. 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 Defendant.

81. 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

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

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

82. 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

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.

83. Plaintiffs are 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 Plaintiffs 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)

84. Defendant has 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.

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VI. CLAIMS

COUNT I

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

On behalf of the Plaintiffs and the Class Members

85. Plaintiffs incorporate by reference paragraphs 1 – 84 as though fully set forth

herein.

86. 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.

87. An actual and bona-fide controversy exists between Plaintiffs, Class members and

Defendant 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. Plaintiffs and Class members have incurred physical loss of or damage to

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

authority orders;

b. Plaintiffs 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, Plaintiffs 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. Plaintiffs contend 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. Plaintiffs further contend 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, Defendant denies and disputes 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.

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88. Plaintiffs seek a Declaratory Judgment on behalf of themselves 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.

89. Plaintiffs also seek a Declaratory Judgment on behalf of themselves 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.

90. 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.

91. 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 Defendant’s insurance

policies.

WHEREFORE Plaintiffs request 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.

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COUNT II

ANTICIPATORY BREACH OF CONTRACT

On behalf of the Plaintiffs and the Class Members

92. Plaintiffs incorporate by reference paragraphs 1 – 84 as though fully set forth

herein.

93. Plaintiffs and each Class member have a common standard commercial property

insurance policy issued by Defendant.

94. Plaintiffs and all similarly situated Class members have performed all their

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

95. Plaintiffs 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.

96. The policies provide that Defendant will pay for the actual loss of business income

due to the “suspension” of “operations.”

97. The policies also provide that Defendant will pay for any necessary expenses that

Plaintiffs and the Class members incur that they would not have incurred had there been no

physical loss of or damage to their property.

98. Plaintiffs’ 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.

99. As stated above, Plaintiffs 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.

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100. Upon information and belief, Defendant intends to refuse performance under the

common standard commercial property insurance policies. Specifically, Defendant intends 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.

101. As a result of Defendant’s repudiation or anticipatory breach of the insurance

policies, Plaintiffs and the Class members have suffered actual damages.

WHEREFORE, Plaintiffs, on behalf of themselves and all similarly situated Class

members seek compensatory damages resulting from Defendant’s 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, Plaintiffs, on behalf of themselves and all similarly situated individuals,

demand judgment against Defendant 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 Plaintiffs and the Class “further necessary and proper relief”, including

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

(4) Awarding Plaintiffs and the Class compensatory damages from Defendant’s

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;

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

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

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

Stat. § 627.428; and

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

DEMAND FOR A JURY TRIAL

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

is permitted by law.

Respectfully submitted this 1st day of May, 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

(305) 372-1800

Daniel Tropin, Esq.

Florida Bar No. 100424

tropin@kolawyers.com

Jonathan M. Streisfeld, Esq.

Florida Bar No. 117447

streisfeld@kolawyers.com

KOPELOWITZ OSTROW FERGUSON

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WEISELBERG GILBERT

One West Las Olas Blvd., Suite 500

Fort Lauderdale, FL 33301

(954) 525-4100

Allan Kanner

a.kanner@kanner-law.com

KANNER & WHITELEY, LLC

701 Camp Street

New Orleans, LA 70130

(504) 524-5777

Counsel for Plaintiffs

1260768

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