K.C. Hopps, Ltd. v. The Cincinnati Insurance Co., No. 22-1356 (8th Cir. 2023)
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K.C. Hopps, Ltd., sued its insurer, The Cincinnati Insurance Company, seeking coverage for lost business income incurred during the COVID-19 pandemic. Cincinnati moved for summary judgment based on K.C. Hopps’s inability to show physical loss or damage, which the district court denied. After the jury returned a verdict for Cincinnati, K.C. Hopps renewed its motion for judgment as a matter of law and moved for a new trial. The district court denied both motions.
The Second Appellate District affirmed. The court explained that K.C. Hopps alleged that COVID-19 particles were present at its properties. The court wrote that has repeatedly rejected similar claims for COVID-19-related business interruptions because the insured did not sufficiently allege physical loss or damage. The court explained that even if K.C. Hopps could show actual contamination of its properties, any possible contamination was not the cause of its lost business income. K.C. Hopps did not limit its operations because COVID-19 particles were found at its properties—it did so because of the shutdown orders. K.C. Hopps remained open until government orders limited its operations. And even if its premises weren’t contaminated, K.C. Hopps “would have been subject to the exact same restrictions.”
Court Description: [Kobes, Author, with Smith, Chief Judge, and Stras, Circuit Judge] Civil Case - COVID-19. Plaintiff, an owner and manager of various bars, restaurants, catering services, and event spaces, was not entitled to insurance coverage for lost business income incurred during the COVID-19 pandemic and the district court thus did not err in denying plaintiff's renewed motion for judgment as a matter of law after a jury returned a verdict in favor of plaintiff's insurer; the mere presence of the virus at plaintiff's properties was insufficient to show a covered loss; any errors in the jury instructions did not impact plaintiff's substantial rights.
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