PA COURT STRIKES DOWN COVID CLAIM OVER VIRUS EXCLUSION

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In what appears to be the first decision of its kind in Pennsylvania, a federal district court in Philadelphia dismissed at the pleadings stage the plaintiff-insureds’ claims for insurance coverage based on COVID-19-related business interruption losses.  In Wilson v. Hartford Cas. Co., No. 20-3384, 2020 U.S. Dist. LEXIS 179896 (E.D. Pa. Sept. 30, 2020), a Philadelphia attorney and her law firm filed a lawsuit against their insurer and broker seeking coverage for past and future business losses due to the Coronavirus and a myriad of associated state, city and court orders requiring the firm to close.  The insureds claimed that coverage was available under their policy pursuant to the “civil authority”, “lost business income and extra expense”, “extended busines income”, “business income extension for essential personnel”, and “limited fungi, bacteria, or virus” provisions, the latter of which had a limit of $50,000.  The insurer and broker both filed motions to dismiss the insureds’ amended complaint. Many of the early COVID-related business income rulings around the country have hinged upon whether coverage was triggered through “direct physical loss” or damage to the property at issue.  The court in this case, however, stated that it need not decide this threshold issue because the policy’s “virus exclusion” – which precludes coverage for “loss or damage caused directly or indirectly by … [p]resence, growth, proliferation, spread or any activity of ‘fungi’, wet rot, dry rot, bacteria or virus” -- clearly and unambiguously applied, as the plaintiffs “explicitly allege that their losses are caused by the...
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IF THE SHOE FITS: DOL ISSUES NEW PROPOSED RULES TO CLASSIFY INDEPENDENT CONTRACTORS AND EMPLOYEES

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Every first year law student learns about the International Shoe case, the 1945 decision of the United States Supreme Court establishing the “minimum contacts” standard for personal jurisdiction.  I was reminded of this case recently because my wife has just started law school after many years of teaching, tutoring and political activity. What sparked my interest were the underlying facts of the dispute, which have a modern day equivalent in the debate over the employment status of workers in the gig economy.  Let me explain.  International Shoe Co. manufactured shoes (of course) and was headquartered in St. Louis, Missouri.  It had manufacturing and distribution facilities in several states but not in the state of Washington.  The company sold shoes in the state of Washington through the efforts of thirteen salesmen (they were all men) who resided in that state.  It supplied the salesmen with sample shoes (one shoe per style only), which they displayed to prospective customers.  The salesmen were reimbursed for certain expenses and were paid on commission.  They could take orders but could not negotiate price or terms, all of which were controlled by International Shoe.  The salesmen had no authority to enter into contracts or collect payment. The State of Washington contended that the salesmen were International Shoe's employees and assessed the company for unpaid contributions due to its unemployment compensation fund.  The company challenged the assessment for two reasons.  First, International Shoe argued that it wasn’t doing business in Washington, so it was not subject to the...
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Broudy Named to 2021 Best Lawyers in America List

Congratulations to RLB partner, Josh Broudy, who was named to The Best Lawyers in America list for the second year in a row for his work in Reinsurance Law, and for the first time in the category of Insurance Law. For more information on Mr. Broudy and his practice, please click here.
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PENNSYLVANIA: 2020 (INSURANCE) BATTLEGROUND STATE?

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Pennsylvania is shaping up as a hotbed of legislative action and high-stakes litigation aimed at compelling insurers to provide coverage for COVID-19-related business losses.  In addition to putative class actions and individual lawsuits being instituted across the state, the Commonwealth recently saw:  (1) two new pieces of legislation introduced in the Pennsylvania Senate on this issue; (2) a petition filed to consolidate all similar federal lawsuits nationwide via Multi-District Litigation (MDL) in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia; (3) an emergency motion filed by an insured requesting the Pennsylvania Supreme Court to invoke its “King’s Bench” powers to assume jurisdiction over and coordinate all similar state court coverage litigation, which was subsequently denied; and (4) commentators on “both sides of the aisle” debating whether a Pennsylvania Supreme Court opinion in a non-insurance coverage case could be construed as favorable to policyholders.  Insurers will continue to fight back, arguing that, among other things, the proposed legislation is unconstitutional, and that there is a lack of commonality among the lawsuits necessary to make an MDL or coordinated litigation appropriate in this instance. The Proposed Senate Bills On April 15, 2020, the Pennsylvania Senate joined its counterpart in the House of Representatives in proposing legislation that would essentially mandate insurance coverage for COVID-19 business losses.  As with the House bill, a report on which can be found here, Senate Bill No. 1114, entitled the “COVID-19 Insurance Relief Act” would, among other things, serve to override an exclusion found...
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PENNSYLVANIA AND NEW JERSEY COVID-19 INSURANCE UPDATE

TO OUR CLIENTS AND FRIENDS OF THE FIRM: First and foremost, we at RLB Law Group hope that you and your families are staying safe and healthy during these trying, unprecedented times.  Yesterday (March 19), Tom Wolf, the Governor of Pennsylvania, ordered all “non-life essential” businesses to close effective 8:00 p.m. EDT last night.  Like many of you, with our office now officially closed, the RLB team is working remotely for the foreseeable future; we, however, are available by email, phone or virtual methods to answer any of your COVID-19 legal questions, particularly in the areas of employment and insurance/reinsurance law. One of the most frequently-asked questions in recent days has been whether there is insurance coverage available for lost business income due to the government-mandated business closures arising from the COVID-19 outbreak.  In addition to the broad restrictions on businesses in Pennsylvania, New Jersey had ordered the closings of gyms, theaters, amusement parks, indoor malls and casinos earlier this week, as well as imposed a nighttime curfew.  As of last night, New Jersey added to the closure list spas, tattoo parlors, barbershops, nail and hair salons.  According to one infectious disease specialist we consulted with, this extreme phase of containment effort and “social distancing” will, in his estimation, likely last up to 3 months. Business interruption or business income coverage may be found as an “add-on” to commercial property policies.  Specific business interruption coverage parts or extensions which may be applicable to COVID-19 losses include “civil authority” coverage, which is...
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Broudy Named to The Best Lawyers in America 2020 List

RLB is pleased to announce that our partner, Joshua P. Broudy, has been selected for inclusion in the 2020 edition of The Best Lawyers in America for his work in reinsurance law. For more information on Mr. Broudy and his practice, please click here.
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RLB Sponsors Philly Launch of Gene Spotlight Charity

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RLB Law Group was proud to sponsor the launch of the Philadelphia chapter of Gene Spotlight, a wonderful charity dedicated to finding cures for rare pediatric genetic diseases. We were honored to co-host the event with legendary Villanova basketball coach Jay Wright and former Syracuse and NBA star Etan Thomas. For more information on Gene Spotlight, please visit www.genespotlight.org.
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Rosenthal Joins Main Line Art Center Board

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Our partner, Michael H. Rosenthal, has joined the Board of Directors for the Main Line Art Center (MLAC).  MLAC's mission is to inspire and engage people of all ages, abilities, and economic means in visual art through education, exhibitions, and experiences.  RLB encourages everyone to visit MLAC’s beautiful galleries or take advantage of its art instruction for all ages, abilities, and economic means spanning from traditional to contemporary.  To learn more about MLAC, please visit www.mainlineart.org.
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Live Like Blaine Foundation LEAD Event

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Once again, RLB was proud to sponsor and attend the Live Like Blaine Foundation's annual LEAD event, with special guest Julie Foudy.  Live Like Blaine's mission is to empower and inspire young women to become leaders through athletics and fitness.  For more information, please visit www.livelikeblaine.org.
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Live Like Blaine Foundation LEAD Event

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We are a proud sponosr of the Live Like Blaine Foundation LEAD Event Saturday, November 11, 20177:00 PMYSC SPORTS - 224 County Line Road, Wayne, PA We will be there for a night of fun, food, drink and dancing to support Live Like Blaine’s mission to empower and inspire young women to become leaders through athletics and fitness. Tickets are available online, click here: http://www.livelikeblaine.org/leadevent/
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Ribbon Cutting and Happy Hour at our new office in the Exton Corporate Center

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Join clients, friends and Exton Region Chamber of Commerce membersRibbon cutting and open house Thursday, November 16 from 5-7 p.m. at 102 Pickering Way, Suite 310 Click here to RSVP
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Judge: Relationship Involving Arbitrator Justifies Vacatur Of Award

Mealey's (April 4, 2017, 10:28 AM EDT) -- NEW YORK — A federal judge in New York on March 31 vacated a reinsurance arbitration award because of an arbitrator’s failure to disclose his relationships with one of the arbitrating parties (Certain Underwriting Members at Lloyd’s, London v. Insurance Company of the Americas, Nos. 16-cv-323, 16-cv-374, S.D. N.Y.). (Opinion available.  Document #12-170407-011Z.) Certain Underwriting Members at Lloyd’s, London (Underwriters) sued the Insurance Company of the Americas (ICA) on Jan. 15, 2016, in the U.S. District Court for the Southern District of New York.  Underwriters and ICA entered into a reinsurance agreement that was underwritten as a workers’ compensation catastrophe cover.  A dispute arose, and ICA demanded arbitration.  Underwriters said the arbitration panel issued a final award on Oct. 19, 2015, ordering that it is responsible for claims totaling more than $2.5 million. Misconduct In its complaint, Underwriters asked for an order vacating the arbitration award because a member of the arbitration panel allegedly engaged in misconduct by failing to disclose his relationship with ICA.  ICA cross-moved to confirm the award on Feb. 27, 2016. In his opinion, Judge Vernon S. Broderick noted that the Federal Arbitration Act (FAA), 9 U.S. Code Section 9, 9 U.S.C. § 9, “provides for judicial confirmation of arbitration awards if the parties have consented to such confirmation in their agreement to arbitrate.” “Under the FAA, a court may vacate an arbitration award upon an application of any party to the arbitration . . . where there was...
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Judge Voids $5M Award Against Reinsurers, Citing Bias

By Chuck Stanley Law360, New York (April 3, 2017, 7:38 PM EDT) -- A New York federal judge on Friday vacated a $5 million arbitral award against British reinsurers after learning one of the arbitrators had an undisclosed business relationship with the Florida workers' compensation firm that filed the arbitration claim. Alex Campos failed to disclose his extensive business relationships with high-level employees of Insurance Company of the Americas when the firm appointed him to an arbitration panel in a dispute over a reinsurance contract with Lloyd’s of London underwriters, calling into question his impartiality and placing a cloud over the panel’s decision in favor of ICA, judge Vernon S. Broderick said in a decision vacating the award. “Campos had close business relationships with numerous principals of ICA, a party to the arbitration, and the number and variety of these relationships suggest he was personally acquainted with some of these individuals over a number of years,” the decision states. “Arbitrator Campos’ failure to disclose his significant relationships with principals of ICA, and with ICA itself, requires vacatur of the arbitration award.” The underlying dispute centers on whether agreements for reinsurance against multiple workers’ comp claims were limited to cases in which more than one person was injured as the result of a single accident. The tribunal found that the first- and second-layer underwriters were responsible for more than $2.5 million under claims related to two separate incidents resulting in payouts from ICA and third-layer underwriters were responsible for up to $2.5 million...
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Rosenthal Lurie Announces New Partner and Name Change

EXTON, PA - November 28, 2016 - The law firm of Rosenthal Lurie LLC is pleased to announce the addition of Joshua P. Broudy to its partnership; with this addition comes a name change to Rosenthal Lurie & Broudy LLC.  Mr. Broudy has represented domestic and international clients for over 21 years in sophisticated business litigation and advisory matters at some of the country's largest and most prestigious law firms, including Pepper Hamilton LLP, where he first worked with Michael Rosenthal and Stuart Lurie. Mr. Broudy's practice focuses on representing insurers, reinsurers, brokers, insureds and other participants in the insurance industry in complex litigation and coverage matters in various state and federal courts, as well as arbitration and mediation settings. He regularly counsels clients on claims, coverage, regulatory and compliance issues across various lines of business, and also provides advice on contract drafting and negotiation, litigation avoidance and risk management.  Outside of the insurance and reinsurance arena, Mr. Broudy represents individual and business clients in connection with construction, real estate, labor and employment, civil rights, and contract and business tort disputes. The addition of Mr. Broudy brings insurance and reinsurance dispute resolution and counseling to the firm's flourishing commercial litigation, employment, executive compensation and transactional practices. "We are pleased that Josh has joined us and brought commercial insurance and reinsurance contracts competency to the firm," said Stuart Lurie. "Our clients will benefit from the 21 years of experience Josh brings to the table." As for the name change for the well-known local brand, Michael Rosenthal said, "Stuart...
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