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By James R. Martin and Shannon M. O'Malley
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To visit the Zelle Coronavirus Resource Center, please click here.

The coronavirus pandemic raises the specter of potential class action exposure for commercial property insurers.  The combination of staggering losses to America’s small businesses and the perceived deep pockets of insurers will undoubtedly incentivize some plaintiffs’ lawyers to try to force the square peg of commercial property coverage disputes into the round hole of the class action device.  The first ripples of a potential wave of class litigation seeking coverage for coronavirus-related business income losses are already arriving in the courts.

One of the first such actions was recently filed on behalf of six Chicago-area bar and restaurant groups (“Billy Goat”).[1]  The plaintiffs there claim that the coronavirus and subsequent state executive orders triggered business interruption coverage under their commercial property insurance policies.  The plaintiffs challenge the insurer’s denial of claims for lost business income, seeking damages for alleged breaches of contract, and seeking declaratory and monetary relief for the putative class.[2] 

But commercial property coverage litigation does not readily lend itself to class treatment because, as discussed below, such cases implicate many individual issues of fact and law. 

A.  The Purpose of Class Actions and the Criteria for Certification of a Class Action

Class actions are an exception to the usual rule that “litigation is conducted by and on behalf of the individual named parties only.”[3]  Congress authorized class actions to promote judicial efficiency by combining the claims of a large group of similarly situated entities (known as a “class”) into a single lawsuit.[4]  In a class action, a plaintiff (known as the “named plaintiff” or “class representative”) may sue the defendant not only on her own behalf, but also on behalf of other entities in the defined class. 

In appropriate circumstances, the class action device “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.”[5]  The aggregating nature of the class actions also incentives plaintiffs to pursue lawsuits when the damages are likely to be too small to justify litigation, but a class action would offer those with small claims the opportunity for meaningful redress.  However, class actions can occasionally subject defendants to costly or abusive litigation.[6]  In an attempt to balance the benefits of class actions against the risks to defendants, Federal Rule of Civil Procedure 23 establishes a rigorous series of criteria that a federal class action must satisfy.

Those requirements are set forth in Rules 23(a) and (b) of the Federal Rules of Civil Procedure.  Typically, claimants must meet four prerequisites: (i) the class is so numerous that joinder of all members is impracticable (“numerosity”); (ii) there are questions of law or fact common to the class (“commonality”); (iii) the claims of the representative parties are typical of the claims of the class (“typicality”); and (iv) the representative parties will fairly and adequately protect the interests of the class (“adequacy of representation”). 

In addition to those prerequisites, the action must fit into one of the three categories under Rule 23(b).  Two common types are injunctive/declaratory relief class actions under Rule 23(b)(2) and damages class actions under Rule 23(b)(3).  In Billy Goat, the plaintiffs seek both declaratory and monetary class relief. 

Rule 23(b)(3) damages class actions must meet two further requirements in addition to the criteria of Rule 23(a): (i) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members (“predominance”); and (ii) a class action is superior to other available methods for the fair and efficient adjudication of the controversy (“superiority”).  It is unquestionable that certification of damages class actions in general has become more challenging and more protracted in many instances, owing to the recent developments in class-action jurisprudence.[7]

B.  Certification Hurdles in Class Cases Challenging Denials of Business Interruption Claims

As with all insurance policies, a critical first step in determining coverage is to review the specific policy terms, which can vary significantly among the putative class members.  Generally, to trigger business interruption coverage, there must be (1) direct physical loss of or damage to property; and (2) a causal connection between the physical loss or damage and the insured’s loss of income.[8] Policies with this coverage  typically cover business interruption losses incurred during an identified “period of restoration,” which begins at the time of the interruption and ends at the time it should reasonably take the business to repair or replace the damaged property.

In the context of coronavirus-related claims, myriad factors go into business interruption coverage analysis. The scope of coverage afforded by the varying policy wordings coupled by individualized factual scenarios will likely render class treatment infeasible.[9]   

1.  Numerosity

Numerosity is often not an issue so long as there are a sufficient number of similarly situated policyholders in the defined class.  The named plaintiffs need not state the exact number of potential class members, nor is there a bright-line minimum threshold requirement.[10]  When evaluating numerosity, a court may make common sense assumptions to support a finding that joinder would be impracticable.[11]  For example, the fact that class members are geographically dispersed and that class members are difficult to identify supports a finding of numerosity.[12] 

2.  Commonality

Commonality does not require that every issue to be litigated be common to the claims of all class members.[13]  But plaintiffs must show more than an incidental common question within the class; rather, plaintiffs must establish that the claims “depend upon a common contention” that is “capable of classwide resolution” and that classwide proceedings will generate “common answers apt to drive the resolution of the litigation.”[14] 

There will likely be some common issues such as the interpretation of certain coverage wordings in standard policy provisions and whether the presence of coronavirus (or the threat thereof) on the policyholder’s property constitutes physical loss or damage under typical policy language.[15]  But ultimately, the specific policy language at issue, in concert with the facts, will determine whether coverage is triggered by the coronavirus and its impacts. 

The separate proof required to determine causation and damages will pose numerous challenges for plaintiffs, including:

• Showing that the relevant policy terms are the same for all class members. Most policyholders hold base policies supplemented by a variety of endorsements which alter the standard terms of the policy.  In Billy Goat, the plaintiffs premise their breach of contract claims on the insurer’s refusal to pay claims under a specific “all-risk” policy and allege that the putative class members purchased “identical coverage” containing “identical language.”[16] Because the wordings of the applicable policy itself will ultimately determine coverage, it is unclear whether the Billy Goat plaintiffs can show “identical coverage” without examining each class member’s endorsements that may change the interpretation of each policy as a whole.
• Showing that all class members have complied with all applicable provisions of the policies, including payment of the premiums.
• Showing that each class member has incurred physical loss or damage to its property, or, in the context of a civil authority claim, a covered cause of loss caused damage to property and access to the area immediately surrounding the damaged property was prohibited by a civil authority order. A key factual issue in a coronavirus coverage dispute will involve a showing that property was actually physically damaged, which is obviously a claim specific determination.

It is unclear whether plaintiffs can show on a classwide basis that insureds’ properties (or properties within the area of the insured’s location for a civil authority claim) were physically affected in some way, because “[d]epending on the jurisdiction, there will necessarily be a deeper analysis of whether and how the presence of the virus purportedly damaged the property” for each class member.[17]  Equally important is whether the virus was actually present to cause damage to the property.  Notably, the virus is not omnipresent across geographic locations.  Data shows that the nation’s coronavirus case load remains heavily concentrated in more densely populated counties and metro areas but not necessarily in rural communities even within the same state.[18]   Without individualized inquiry, it would be nearly impossible to show that all class members’ properties (or that all property near the class members’ properties) were contaminated and physically damaged by the virus.[19] 

• Showing causation through common proof. Proving causation through common evidence is typically a significant hurdle for plaintiffs in class actions.  Coronavirus-related income losses that businesses are experiencing to date are typically due to causes other than physical property damage,[20] for example, a restricted workforce or a lack of demand as patrons adhere to shelter-in-place directives.  To the extent there are income losses not attributable to physical property damage caused by the presence of coronavirus, such issues must be assessed and considered on an individualized basis.  

In Billy Goat, for example, the plaintiffs allege that their losses were caused by executive orders that suspended all dine-in operations at their restaurants.[21]  While that may be sufficient to show common causation, it seems insufficient to establish a breach of the policy because there is no allegation of the triggering physical damage.[22] The need to determine triggering physical damage (or lack of) on a member-by-member basis will likely defeat commonality. 

• Moreover, to the extent there are allegations that the policy terms at issue are ambiguous, courts may need to consider extrinsic evidence that would be unique to each individual policyholder.[23]

3.  Typicality

Plaintiffs’ ability to show typicality will depend on whether their claim is “reasonably co-extensive with those of absent class members.”[24]  “Ordinarily, a purported representative’s claim is typical if it arises from the same course of conduct and is based on the same legal theory as the claims of the class as a whole.”[25]  However, a claim is not typical if a representative must prove something different from what is necessary to prove her own claim in order to also prove the claims of other members of the class.[26]  In this aspect, plaintiffs’ ability to meet the typicality requirement will depend in large part on the same issues upon which commonality will turn. 

Relatedly, for a class to be certified, “plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.”[27]  Courts in most jurisdictions, including ones that more liberally interpret policies, recognize “physical loss” due to contamination that cannot be seen or touched should only be covered if there is some discernible change.[28] For example, if the plaintiff insured cannot show that its business property was physically contaminated by the coronavirus, it will have no standing in building a class case on behalf of members with contaminated properties. 

4.  Adequacy

To show adequacy, the named plaintiffs and their counsel must show that they do not have any conflicts of interest with other class members and will prosecute the action vigorously on behalf of the class.  This element serves to “uncover conflicts of interest between named parties and the class they seek to represent.”[29] 

As with typicality, the ability of plaintiffs to establish adequacy will turn on questions of commonality.  If, for example, the circumstances under which the named plaintiff incurred income losses are different from those of the class members in a material way, the plaintiff may not be an adequate class representative.

5.  Predominance

Establishing predominance is more difficult than showing commonality.[30]  The predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”[31] Cohesiveness rests on the dominance of common questions over individual interests.[32]  This requires careful scrutiny of the relation between common and individual questions in a class case.  Common questions are those where “the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class wide proof[,]” while individual questions require class members “to present evidence that varies from member to member.”[33]  

The test for predominance consists of two parts.  First, a plaintiff must show that common questions of law and fact predominate over individual questions.  Second, a plaintiff must present a model of damages that identifies damages that stem from the defendant’s alleged wrongdoing and is “susceptible of measurement across the entire class.”[34] 

Many of the same issues discussed above in the context of commonality will apply with even more force here.  To name a few, the individual questions necessary to adjudicate the insured’s breach of contract claim may include: lack of evidence that the insurer used standard contracts; the cause of each policyholder’s loss and the amount of the damages sustained; physical damage caused by the actual, not suspected, presence of coronavirus in the insured premises (or nearby if resulting from a civil authority order); and the applicable law if the class is defined to encompass insureds with locations across multiple states.  Plaintiffs will have to show that the majority of their claims for breach are capable of consideration on a classwide basis.  It will be difficult for plaintiffs to make this showing given the numerous individual questions of fact and law that will arise in coronavirus-related coverage litigation.

In addition, plaintiffs must present a method of proving damages that is “susceptible of measurement across the entire class.”[35]  It is unclear how plaintiffs will be able to make this showing given the numerous variables at play in the broad spectrum of businesses affected by the coronavirus exposure and resulting coronavirus-related coverage litigation.

6.  Superiority

In addition to predominance, Rule 23(b)(3) requires the court to find that a class action is both the superior method of adjudicating the claims and is manageable.[36] 

Claims for breach of insurance contract such as those brought by the Billy Goat plaintiffs are regularly litigated as individual actions.  Indeed, numerous similar cases are already pending in state and federal courts, all of which are individual actions.[37]  Not surprisingly since the actions involve commercial business interests, these individual claims are  not of de minimis value.[38]  Individual policyholders thus have an incentive to pursue their rights in court and to individually control the prosecution of their own claims.  Thus, even if there were a class action, many putative class members would likely opt out to pursue their claims separately.

Moreover, while “classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation,”[39] courts recognize that “[i]f each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not ‘superior.’”[40]  As discussed above, each policyholder may be required to litigate a host of individual issues to establish a breach of the insurance policy and establish damages. These individual issues will predominate, resulting in an unmanageable series of minitrials, and consume an extraordinary amount of time.  Because the use of the class device would not promote judicial efficiency and there are unmanageable individual inquires, class treatment is not superior as a method of adjudicating the insureds’ claims.

C.  Monetary Relief Sought by the Insureds Is Not Suitable for Class Treatment under Rule 23(b)(2)

In limited instances, courts have certified Rule 23(b)(2) classes for declaratory relief related to interpretation of insurance and other contracts.[41]  The predominate purpose of the action should be a declaration about the meaning of identical contractual terms—for example, whether an insurer may, as a business practice, always depreciate labor when measuring an actual cash value claim. The proposed Rule 23(b)(2) class must satisfy the four prerequisites of Rule 23(a) (i.e., numerosity, commonality, typicality, and adequacy), and further, the requirement that the class claims are cohesive such that the relief necessarily affects the entire class.

A Rule 23(b)(2) class cannot seek money damages, however, unless the monetary relief sought is merely incidental to the declaratory relief requested by the class.  To the extent the policyholders seek monetary damages for breach of contract, the purported class claims must meet the procedural protections of predominance and superiority under Rule 23(b)(3).  In Billy Goat, the plaintiffs’ monetary claims are not incidental to their claims for declaratory relief.  Thus, they still must meet the rigorous criteria of Rule 23(b)(3).     

D.  A Partially Successful Motion to Strike May Limit the Scope of Insureds’ Claims

In very rare instances, defendants have successfully challenged a broad class definition concurrent with their motion to dismiss by moving to strike class allegations.[42]   Successful motions would allow defendants to narrow the scope of the case prior to undertaking discovery.  Such motions are granted where the complaint’s factual allegations demonstrate that the requirements for maintaining a class action cannot be met.  Each of the four Rule 23(a) requirements, as well as the applicable Rule 23(b) requirements, may be challenged.  When the motion to strike class allegations is granted, however, it may be without prejudice allowing plaintiffs leave to amend their complaint, such as by adding allegations or revising the class pleaded.

E.  Conclusion

As businesses nationwide grapple with disruptions to their operations during these unprecedented times, insurance coverage disputes and litigation will undoubtedly surge.  While the class action device has the charm to economize litigation and aggregate individual claims, it may not be the appropriate tool for resolving coronavirus-related business interruption coverage disputes.  Whether, and to what extent, the policies might cover some part of the businesses losses being incurred due to the impact of the pandemic and the various state and local orders issued to stem the spread of coronavirus will turn on a variety of factual and legal determinations that are specific to each alleged loss.  The validity and viability of such claims cannot be resolved in one stroke in class litigation.

Please contact Shannon O’Malley (somalley@zellelaw.com), partner with Zelle LLP in Dallas, and James Martin (jmartin@zellelaw.com), partner with Zelle LLP in Washington, D.C., for more information on this topic.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Complaint, Billy Goat Tavern, Inc., et al. v. Society Insurance, No. 1:20-cv-02068 (N.D. Ill.), filed Mar. 31, 2020 (hereinafter “Billy Goat Complaint”). 

[2] Id.

[3] Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979).

[4] General Telephone Co. v. Falcon, 457 U.S. 147, 155 (1982) (citing Yamasaki, 442 U.S. at 701).

[5] Id.

[6] See, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (“Even if a class’s claim is weak, the sheer number of class members and the potential payout that could be required if all members prove liability might force a defendant to settle a meritless claim in order to avoid breaking the company.”).

[7] See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455 (2013); Comcast Corp. v. Behrend, 569 U.S. 27 (2013).

[8] Shannon O’Malley, Commercial Property Insurance Coverage and Coronavirus (Mar. 11, 2020), at 1, available at https://www.zellelaw.com/Commercial_Property_Insurance_Coverage_and_Coronavirus.

[9] See id. 

[10] See, e.g., In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005).

[11] Id.

[12] Id.; see also Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016) (considering “the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim”); Penn. Pub. Sch. Emps.’ Ret. Sys., 772 F.3d 111, 120 (2d Cir. 2014) (considering “(i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members”).

[13] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).

[14] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quotation marks and alterations omitted).

[15] Generally, the class action complaint identifies with some degree of precision the issues of fact and/or law that are common to the class members.  The Billy Goat Complaint contains only a conclusory statement to that effect.

[16] Billy Goat Complaint, ¶ 43.

[17] Jonathan R. MacBride, Civil Authority Coverage for Coronavirus Claims (Mar. 29, 2020), at 2, available at https://www.zellelaw.com/Civil_Authority_Coverage_For_Coronavirus_Claims.  Importantly, the policy at issue in the Billy Goat lawsuit only provides Civil Authority coverage when a Covered Cause of Loss causes “damage to property.” To the extent policyholder attorneys try to claim loss of use of property is sufficient for coverage, that argument ignores the separate requirement in the Civil Authority clause for damage to property.

[18] The New York Times, Coronavirus in the U.S.: Latest Map and Case Count, available at https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited Apr. 10, 2020).

[19] While in some class cases courts allow the use of statistical evidence, or so-called representative evidence to establish liability, the proponent must show that “each class member could have relied on that sample to establish liability if he or she had brought an individual action.”  Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016).  That is not the case here, because “[c]ourts actually require physical damage, rather than the supposition of damage.”  O’Malley, Commercial Property Insurance Coverage and Coronavirus, at 3.

[20] O’Malley, Commercial Property Insurance Coverage and Coronavirus, at 2.

[21] Billy Goat Complaint, ¶ 38.

[22] In Billy Goat, the Civil Authority coverage states:

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 of 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 the area; 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.

    See Ex. A to Billy Goat Complaint, TBP2 (05-15) at 7-8.

[23] There is a split of authority regarding the need for individualized proof on this issue.  See, e.g., Bally v. State Farm Life Ins. Co., No. 18-cv-04954-CRB, 2020 WL 1643681, at *9 (N.D. Cal. Apr. 2, 2020) (recognizing split of authority in California). 

[24] Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

[25] Van West v. Midland Nat. Life Ins. Co., 199 F.R.D. 448, 452 (D.R.I. 2001).

[26] In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 312 (3d Cir. 1998) (quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 158 (1982) (“Falcon would need to prove much more than the validity of his own claim in order to prove the claims of the absentee class members, and thus his claims were not typical of the class.”)).

[27] Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547 n.6 (2016). 

[28] O’Malley, Commercial Property Insurance Coverage and Coronavirus, at 2-3.

[29] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

[30] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

[31] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997). 

[32] Tyson Foods, Inc. v. Bouaphakeo, –– U.S. ––, 136 S. Ct. 1036, 1045 (2016).

[33] Id. (quoting 2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2012)).

[34] Comcast Corp. v. Behrend, 569 U.S. 27, 34-38 (2013).

[35] Comcast Corp. v. Behrend, 569 U.S. 27, 34-38 (2013).

[36] Courts consider four nonexclusive factors: (1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action.  See, e.g., Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1190-92 (9th Cir. 2001).

[37] See Big Onion Tavern Group, LLC, et al. v. Society Insurance, Inc., No. 1:20-cv-02005 (N.D. Ill.) (alleging that the restaurant and movie theater groups’ commercial businessowners insurance policies entitled them to coverage for losses incurred due to their government-ordered closure during the pandemic); French Laundry Partners, LP, et al. v. Hartford Fire Insurance Co., et al. (Cal. Super. Ct., Napa Cty.) (alleging that the restaurants are entitled to payment under the “civil authority” prong of their “all-risk” property policy with Hartford for business income losses due to government-mandated closure tied to the outbreak of coronavirus); Cajun Conti LLC, et al. v. Certain Underwriters at Lloyd’s, London, et al. (La. Civ. Dist. Ct., Orleans Parish) (alleging that the restaurant’s property and business interruption policy with underwriters at Lloyd’s of London should cover its losses due to government-mandated closures tied to the outbreak).

[38] For example, in Big Onion, a dozen restaurant and movie theater groups seek a declaratory ruling that their insurance policies cover what they expect to be more than $10 million in losses.  See Complaint, Big Onion Tavern Group, LLC, et al. v. Society Insurance, Inc., No. 1:20-cv-02005 (N.D. Ill.), filed Mar. 27, 2020, ¶ 53.

[39] Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).

[40] Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1192 (9th Cir. 2001). 

[41] In at least one instance, a district court has certified such a class addressing identical base policy language, even where some class members’ policies included endorsements modifying the relevant base policy language.  See Bond v. Liberty Ins. Corp., No. 2:15-CV-04236-NKL, 2017 WL 1628956, at *12 (W.D. Mo. May 1, 2017).  In that case, a putative class of 22,000 Missouri homeowners insured by Liberty Insurance under a particular policy challenged Liberty’s policy of applying deductibles to cash payments.  Id. at *4.  The homeowners bifurcated their proposed class into an injunction-only class pursuant to Fed.R.Civ.Proc. 23(b)(2) and, if successful, a putative damages class pursuant to Fed.R.Civ.Proc. 23(b)(3).  The court granted certification of the injunction-only class because the plaintiffs challenged a “systematic practice” of Liberty in how it applied contract language identical to all class members.  Although there were a number of endorsements that could modify the base policy language, those did not defeat class certification because (1) there were no “substantive differences” between one category of endorsements and the key base policy language, and (2) Liberty failed to provide any “specific arguments about how these forms defeat the cohesiveness” of the class.  Id. at **12-13. As to the latter category of endorsements, the court recognized that the plaintiffs bore the burden of establishing the class certification criteria, but that Liberty “may not defeat class certification by making claims unsupported by evidence.”  Id. at *13.  Finally, the court distinguished between the discrete legal issue presented in the case from other putative class actions involving property coverage disputes that would involve “individualized, fact-specific proceedings unique to each class member.”  Id. at *16.

[42] See, e.g., In re Ry. Indus. Employee No-Poach Antitrust Litig., 395 F. Supp. 3d 464 (W.D. Pa. 2019).