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By Max H. Stern and Holden Benon
Yesterday, the USA Court docket of Appeals for the Ninth Circuit issued a succinct however well-reasoned resolution that there was no protection for a Las Vegas Resort & On line casino’s COVID-19-related enterprise interruption loss underneath the protection offered by an “all dangers” insurance coverage coverage. See Circus Circus LV, LP v. AIG Specialty Ins. Co., No. 21-15367 (ninth Cir. Apr. 15, 2022).
Though Nevada regulation ruled the evaluation, the court docket’s written opinion leaned closely on appellate authorities that utilized California regulation (particularly, the California Court docket of Attraction’s Inns-by-the-Sea decision and the Ninth Circuit’s Mudpie decision). The Circus Circus court docket adopted the Inns-by-the-Sea causation evaluation in holding that, regardless of Circus Circus’ allegation that the coronavirus was current on its premises, it didn’t establish any direct bodily injury to its property brought on by the virus which led to the On line casino’s closure. “Relatively,” the court docket noticed, “the allegations surrounding Circus Circus’s closure are based mostly on the native Keep at Dwelling Orders.” Citing Mudpie, the court docket additionally held that Circus Circus didn’t allege it suffered a direct bodily lack of its property, reasoning the loss have to be resulting from a “distinct demonstrable, bodily alteration of the property.”
The Circus Circus resolution provides to the road of appellate authorities which have adhered to the identical reasoning articulated within the preliminary COVID-19 appellate selections that got here down final yr. Within the circumstances which might be nonetheless presently pending, the percentages actually appear to favor the carriers.
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