25 Sep Airo AV Report: Coronavirus Litigation: The Week In Review
By Celeste Bott
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Law360 (September 24, 2020, 8:31 PM EDT) —
Disney faces claims that it wrongfully barred a maskless autistic boy from one of its stores, a racing group says Coca-Cola used the pandemic to ditch a $34 million sponsorship agreement, and an ex-UPS worker says she was wrongfully fired for taking time off work to quarantine.
While courts across the country are altering procedures, restricting access and postponing certain cases to stem the spread of the coronavirus, the outbreak has also prompted a wave of litigation across the country.
Here’s a breakdown of some of the COVID-19-related cases from the past week.
A California federal court has slashed claims brought against Princess Cruise Lines by a group of passengers over its handling of COVID-19 cases aboard one of its ships, but it let stand a claim for intentionally inflicting emotional distress.
In Tuesday’s order, U.S. District Judge R. Gary Klausner dismissed without prejudice the passengers’ negligence claims on causation grounds, saying they did not establish when they started experiencing symptoms or when they tested positive for COVID-19 or antibodies of the virus. The court also said that the passengers failed to plausibly claim that Carnival Corp. is the alter ego of Princess Cruises, dismissing their negligence claims against Carnival without prejudice.
And Judge Klausner tossed the passengers’ request for injunctive relief, saying they did not adequately claim an imminent threat of future injury. But he left alone their claim of intentional infliction of emotional distress, saying he cannot conclude that those allegations are legally insufficient to establish that the cruise line engaged in “extreme and outrageous conduct.”
And Stull Stull & Brody has put in a bid to be lead counsel in consolidated proposed investor class suits alleging that Carnival Corp. hid COVID-19 infections on its ships, causing investor losses later when the truth was revealed.
Investor Abraham Atachbarian, who initially fought consolidation of his proposed class action with similar suits, reversed course and asked a Florida federal court to add his suit to the consolidated action. He also asked to be made a lead plaintiff of a subclass of option investors and to appoint his attorneys at Stull Stull & Brody as lead counsel for that subclass.
A former UPS Inc. employee said she was illegally fired for taking two weeks off in order to quarantine after she fell sick during the coronavirus pandemic, according to a lawsuit filed Tuesday in California state court.
Susan Ramirez said she fell ill and was required by her doctor to quarantine for 14 days due to the pandemic but that UPS, her employer at the time, discriminated against her on the basis of medical leave by illegally firing her, according to the 12-page complaint filed in Los Angeles Superior Court.
Ramirez also claims UPS failed to provide her with legally-required meal breaks and failed to pay her premiums for missed breaks, according to the suit. Nor did UPS pay her for all overtime hours and wages due at the time of her termination, Ramirez said.
A California magistrate judge said a waxing salon’s “theory” that its income loss was caused by state closure orders instead of COVID-19 is “nonsense,” freeing Sentinel Insurance Co. and Hartford Financial Services Group from their alleged coverage duty.
U.S. Magistrate Judge Jacqueline Scott Corley tossed a suit from Franklin EWC Inc., saying Tuesday that the business has repeatedly alleged that its physical injuries were caused by COVID-19, while the policy’s virus exclusion clearly bars coverage.
In Missouri, a federal judge will let a proposed class action by four dental offices go ahead with allegations that their insurance company wrongly denied their bids for coverage of losses sustained because of the COVID-19 pandemic, bucking the recent trend of dismissals of such cases.
In an order filed Monday, U.S. District Judge Stephen R. Bough denied Owners Insurance Co.’s motion to dismiss the suit led by Blue Springs Dental Care LLC, making the case the third suit in the district over COVID-19 coverage to get past the dismissal stage, according to an attorney representing the dentists. While in other cases judges have found that “physical loss or damage” must refer to physical alteration, Judge Bough cited an August decision in Studio 417 Inc. et al. v. The Cincinnati Insurance Co. that found the term can include loss of use without physical damage and adopted that definition.
But another dentist office in Illinois has not demonstrated any “physical alteration or structural degradation” of its property, according to an Illinois federal judge who dismissed its suit against Cincinnati Insurance Co.
The insurer won’t need to cover Sandy Point Dental’s loss from COVID-19 closures, as U.S. District Judge Robert W. Gettleman sided with the insurer’s position that the clinic failed to show any direct physical loss during the pandemic. The office was unable to show the presence of the novel coronavirus on its property’s surface or a direct physical loss from its inability to access the clinic, the judge said.
The California Supreme Court on Wednesday said law school graduates registered for the state’s October 2020 bar exam will have to take the test if they want to practice law, the same day the court’s administrative branch announced it was temporarily closing its San Francisco office because of COVID-19.
In a two-sentence docket entry, the high court denied a petition by diploma privilege advocates who had called the Golden State’s plan to administer an online exam in early October “impractical, infeasible and inequitable” in light of the pandemic.
The court didn’t explain its reasoning, but the California chapter of the group behind the action, United for Diploma Privilege, told Law360 on Wednesday that while they don’t plan any further filings right now, their fight isn’t over.
A New York state court judge on Wednesday highlighted some of the limits enforcers face in pursuing accusations of pandemic-related price-gouging when she threw out a case over a wholesaler’s alleged doubling of the price for Lysol Disinfectant Spray.
What New York Attorney General Letitia James had called “appalling” profiteering by Quality King Distributors Inc. and its CEO Glenn Nussdorf, state Supreme Court Judge Eileen A. Rakower wrote off Wednesday as not “unconscionable or overall extreme” when comparing Lysol products sold before and after Gov. Andrew Cuomo issued an emergency declaration March 7.
In New Jersey, a Capital One cardholder urged a federal judge Tuesday not to toss her proposed class action that claims the bank misled customers about eligibility to receive travel vouchers for flights canceled amid the COVID-19 pandemic, saying despite what the bank says, the case isn’t moot.
Capital One Bank (USA) NA told the judge in August that the case should be nixed because the company refunded plaintiff Ellen Fensterer the money for her canceled flights, but she said Tuesday that she hasn’t been made whole, and even if she had, she could still lead the proposed class.
And ticket reseller Viagogo is looking to exit a Florida woman’s proposed class action accusing it of refusing to refund consumers for events canceled due to the pandemic, saying her claims are moot because she accepted a voucher and they don’t apply to other events.
The Switzerland-based company, which recently acquired StubHub, argued in a motion to dismiss in Florida federal court that Lauren Shiflett cannot pursue her claims because she accepted a voucher worth 125% of her purchase price.
That leaves no meaningful relief for the court to offer Shiflett, the company said, adding that her aim of representing a nationwide class of Viagogo customers left holding tickets for events canceled by COVID-19 also falls short because she lacks authority to bring claims for any events other than the April 19 Tool concert she purchased tickets to attend.
Media & Entertainment
The Walt Disney Co. violated the Americans with Disabilities Act when it barred a 7-year-old autistic boy from one of its stores amid the COVID-19 pandemic because he wasn’t wearing a mask, according to a lawsuit filed Tuesday in Pennsylvania federal court.
Shea Emanuel said Disney was wrong to deny her son entry last month at a Disney Store in a mall in Whitehall, Pennsylvania. Emanuel said her son, called N.B. in the suit, can’t wear a mask due to his autism.
Emanuel said Pennsylvania’s statewide mask order includes a carveout for people whose disabilities prevent them from being able to wear a mask. But she said Disney refused to exempt her son from the store’s mask-wearing policy, even though he had no COVID-19 symptoms and promised to abide by health officials’ other safety guidance.
The National Hot Rod Association hit Coca-Cola with a lawsuit in California federal court Monday accusing the beverage giant of exploiting COVID-19 to terminate a $34 million sponsorship agreement, saying the court should “prevent Coca-Cola’s unilateral exit from a valid and binding agreement, under cover of a global tragedy.”
According to the lawsuit, Coca-Cola and the Glendora, California-based NHRA, which bills itself as the world’s largest auto racing organization, have an 18-year relationship over sponsorship of drag racing events, including a current six-year agreement set to expire at the end of 2023.
After signaling in 2019 it wanted out of the deal early, Coca-Cola breached its contract in 2020 while wrongly using…