BROADCASTS.com

b'

This is Not a Ruling on Evidence & Is Not a Win for Insureds  

In Marina Pacific Hotel And Suites, LLC, et al. v. Fireman\\u2019s Fund  Insurance Company, B316501, California Court of Appeals, (July 13, 2022)  the Court of Appeals was faced with a ruling on a demurrer without  leave to amend when the complaint alleged all elements required to  allege a cause of action.  For more than two years the courts understanding of COVID-19, the  infectious disease caused by the SARS-CoV-2 virus and its many variants,  has evolved. Courts now think they know how it spreads, how to protect  against it and how best to treat those who have it. When a pleading  alleges facts sufficient to constitute a cause of action, what we think  we know-beliefs not yet appropriately subject to judicial notice- has  never been a proper basis for concluding, as a matter of law, those  alleged facts cannot be true and, on that ground, sustaining a demurrer  without leave to amend.  Governing Law: Interpretation of Insurance Policies  In general, interpretation of an insurance policy is a question of law  that is decided under settled rules of contract interpretation  

The insureds\\u2019 appeal requires analysis of the allegations in their first  amended complaint primarily in terms of one insuring provision  -coverage for business interruption due to \\u201cdirect physical loss or  damage to\\u201d covered property-and one exclusion-for \\u201cmortality and  disease.\\u201d  The Insureds Adequately Alleged Direct Physical Loss or Damage Caused by  the COVID-19 Virus and a Cause of Action for Breach of Contract by  Fireman\\u2019s Fund  The elements of a cause of action for breach of contract are      the existence of the contract,     plaintiff\\u2019s performance or excuse for nonperformance,     defendant\\u2019s breach, and     the resulting damages to the plaintiff.  Fireman\\u2019s Fund\\u2019s demurrer did not challenge elements (1), (2) or (4),  contending only it did not breach its obligation to pay benefits under  the policy because the insureds, having failed to allege any direct  physical loss or damage to property, failed to allege a covered loss.