Camp 1382 LLC v. Lancer Insurance Company

COUNSELLORS AT LAW _____________ C B J JOARH HNEA N NR A DL MLAE A . S N N A C GT B. N. R C B EOA Y LDR LR YE ON L EL A J D A CA A.O M R RN IE LA CS L H R T D .A . W RFB . D OY M OE RI DR OC WS SE SL A I R D, III RO5 S PB E HE L OC A NK N EE D R (, N 7F 3.A J ).R M -0R 16O 0A - 01D 7 39 F CP ARE HVAT RRE N IA SR C M T IG OS S.

P C .S H E.T EH UE RAW L E HNA .DR W T E STRICK* R W S DTA OI ELY NPLM AHIA LO E DM NN D ARS .Q .J E. DU L CAII KRL N LEL E U I KE N D CHARLES M. CARELLA MELISSA E. FLAX FAX (973) 994-1744 JAMES A. O’BRIEN III** MEGAN A. NATALE J AMES E. C ECCHI D GA . GV LID EN G N. OG NIL TF RIL OL UA BN L EFIELD www.carellabyrne.com OF C OUNSEL Z MA ICC HH AA ER LY CS R. OBO SSW ER+ J J EA O LM H LN IE O S G T D . M G. .C I L OE F LC I SC L TLH EAI I N( N1 9 I (I3 1I3 9 ( 3- 11 999 -39 265 0-) 12 40 )0 8) B L CIR ANI RA D ON S LE IH Y N. EHF E . F TN . A BL AYO RLN O T LR E TT May 25, 2020 * * *C N ME E ER W MT JI BF E EI RE RSD NE YB Y Y AA NT S D H A E M C S AIU V BP I ALR R E T SM R OIE A N C L LO YAU TR TT O O RNF EY C J MOH IH CR N HIS AVT E.O LKP E AH L .E L IR NY J N . I EIB I S U GGY +MEMBER FL BAR ONLY

VIA ECF Hon. Ronnie Abrams United States District Judge Foley Square New York, New York 10007 Re: Camp 1382 LLC d/b/a Campagnola Restaurant v. Lancer Insurance Co. No. 20-cv-3336(RA) Dear Judge Abrams: We are co-counsel for Plaintiff in the above matter and along with counsel for Lancer Insurance Company request that the Court kindly accept this joint letter on behalf of both parties in response to the Court’s May 4, 2020 Order and Notice of Initial Conference, Docket Entry 5.

1. This is a putative class action on behalf of insureds of Lancer Insurance whose businesses were closed as a result of government stay-at-home orders and whose claims for business interruption coverage were denied by Lancer. Lancer’s defenses include, but are not limited to: a. Lancer contends that the plaintiffs cannot establish coverage for loss of business income under their policies; b. Lancer contends that the plaintiffs did not experience required direct physical loss of or damage to property; c. Lancer contends that closure orders do not constitute a covered cause of loss under the policies; d. Lancer contends that the policies contain a virus exclusion that applies to bar coverage for the class members’ claims, even if the claims fell within the grant of Business Income coverage; e. Lancer contends that the claims are also barred by exclusions for property damage caused by the enforcement of or compliance with any ordinance or law, seizure or destruction of property by order of governmental authority, Page 2 and acts or decisions of any person, group, organization, or governmental body. f. Lancer also contends that the claims do not fall within the policies’ Civil Authority additional coverage because access to the insureds’ premises is not prohibited and there is no physical damage to property caused by a Covered Cause of Loss for property damage within one mile of the insureds’ premises.

2. Plaintiff believes that jurisdiction arises under CAFA, 28 U.S.C. § 1332(d). Venue is proper in this District because Lancer does business in this District. Lancer contends that the plaintiff and/or the putative class members will be unable to establish the requirements of subject matter jurisdiction under CAFA and one or more of the exceptions to federal jurisdiction is present.

3. There is currently pending before the Judicial Panel for Multidistrict Litigation, competing motions to transfer and consolidate all COVID-19-related business interruption insurance claims to either the Eastern District of Pennsylvania or the Northern District of Illinois, In re Covid-19 Business Interruption Insurance Coverage Litigation, MDL Docket No. 2942. This matter is a related action. The parties anticipate that the JPML will hear this matter at the July 30, 2020 hearing session and issue its decision shortly thereafter.

Lancer Insurance Company opposes the creation of a MDL. However, it joins with the plaintiff in this application.

In light of the pending motion before the JPML, the parties respectfully request that this matter be stayed, including Lancer’s time to answer or otherwise move against the Complaint, pending a decision from the JPML in order to conserve both the parties’ and the Court’s resources until it is decided where this matter will proceed.

E.g., Royal Park Investments SA/NV v. Bank of America Corp., 941 F.Supp.2d 367, 370 (S.D.N.Y. 2013) 4. No discovery has taken place.

5. No settlement discussions have taken place.

6. See 3.

7. See 3.

If the Court requires a more formal application for a stay, or a proposed form of Order, kindly advise ad the parties will provide the appropriate paperwork. If the Court is not inclined to stay this matter pending a decision by the JPML, kindly so advise the parties and we will provide a proposed case management plan by the June 5 deadline in the Order.

Hon. Ronnie Abrams May 25, 2020 Page 3 Thank you for your attention to this matter. If the Court has any questions, we are available at your convenience.

Respectfully Submitted, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. HURWITZ & FINE, P.C. /s/ Lindsey H. Taylor /s/ Dan D. Kohane LINDSEY H. TAYLOR DAN D. KOHANE ce: All Counsel (via ECF) granted. This action is hereby stayed. Within one week the JPML's decision, the parties shall jointly file a letter updating the as to the status of the case, including whether they seek to extend life the stay. initial conference scheduled for June 12, 2020 is hereby adjourned die.

ORDERED. i] 4A Hon. Ronnie Abrams 5/26/2020 CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO