Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 1 of 17
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`Robin L. Cohen (rcohen@mckoolsmith.com)
`Kenneth H. Frenchman (kfrenchman@mckoolsmith.com)
`Alexander M. Sugzda (asugzda@mckoolsmith.com)
`MCKOOL SMITH, P.C.
`One Manhattan West
`395 9th Avenue, 50th Floor
`New York, New York 10001
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`Attorneys for Plaintiff Thor Equities, LLC
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`THOR EQUITIES, LLC,
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`FACTORY MUTUAL INSURANCE COMPANY,
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`v.
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`Plaintiff,
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`Defendant.
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`Civil Action No.: 20-cv-3380
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`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff Thor Equities, LLC (“Thor”), by and through its undersigned attorneys, as and
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`for its Complaint against Factory Mutual Insurance Company (“FM”), alleges as follows:
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`INTRODUCTION
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`1.
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`This diversity action for anticipatory breach of contract and declaratory judgment
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`arises out of Thor’s pursuit of—and FM’s failure to provide—insurance coverage for its
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`significant losses arising out of the novel coronavirus outbreak.
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`2.
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`Thor owns commercial real estate in many of the largest cities in the United States
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`and around the world, and, like virtually every individual or business, it has not been spared by
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`the current pandemic.
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`3.
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`Fortunately, Thor purchased commercial property insurance from FM in the form
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`of Mutual Corporation Non-Assessable Policy No. 1063282 (the “Policy,” attached hereto as
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 2 of 17
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`Exhibit A). In exchange for a significant premium, the Policy provides up to $750 million in
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`coverage for property damage as well as all manner of business interruption losses Thor could
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`experience. Naturally, the Policy provides coverage for loss of rental income, but in addition to
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`that coverage, the Policy also includes coverage for:
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` Loss caused by restriction of access to property, including specifically if caused by an
`order issued by a civil authority;
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` Loss caused by loss or damage to property experienced by Thor’s customers or suppliers;
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` Loss caused by loss or damage to property near Thor’s insured locations that attracts
`business to Thor’s properties;
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` Loss caused by delay in startup to properties under construction;
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` Loss caused by the actual not suspected presence of communicable disease; and
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` Extra expenses incurred to continue business as nearly normal as practicable
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`4.
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`Thor has experienced losses that fall within all of these coverages. Certain
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`tenants have not paid rent to Thor since they have been shuttered by state and city executive
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`orders deeming the tenants’ businesses as “non-essential” during the outbreak. Customers and
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`suppliers have been affected by stay-at-home orders. Thor’s hotels and other properties have
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`been affected by the closure of all attraction properties and the virtual disappearance of travel.
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`Several of Thor’s construction projects have been shut down.
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`5.
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`6.
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`Thor has had the confirmed presence of coronavirus at several of its properties.
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`Based on the preliminary information available to it and its discussions to date
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`with its tenants, Thor expects to suffer at least $20 million in lost rental income as well as other
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`loss and costs in connection with the coronavirus outbreak. Depending on how long the
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`conditions caused by the outbreak last, those losses could increase substantially.
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`7.
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`Thor promptly made a claim for coverage for those losses under the Policy.
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`However, in this time of crisis, FM has not paid any funds to Thor to date, and its response to
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 3 of 17
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`date has been merely to indicate it will only consider coverage under the Policy’s specific
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`coverages for communicable diseases, which is limited by a sublimit far lower than Thor’s
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`expected losses, notwithstanding the fact that Thor has made clear it is making its claim under
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`other applicable coverages that are clearly triggered by the current situation.
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`8.
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`Based on that response, Thor has a reasonable belief that FM will not honor its
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`contractual obligations to Thor under the Policy, and Thor brings this action for anticipatory
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`breach of contract and declaratory judgment that it is entitled to the full amount of coverage it
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`paid substantial premiums for and badly needs.
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`THE PARTIES
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`9.
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`Plaintiff Thor Equities, LLC, is a limited liability company organized under the
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`laws of Delaware, with its principal place of business in New York, New York. The sole
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`members of Thor are Joseph J. Sitt and Betty Sitt, both of whom are New York citizens.
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`10.
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`Upon information and belief, Defendant Factory Mutual Insurance Company is a
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`company formed under the laws of Rhode Island with its principal place of business in Johnston,
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`Rhode Island. Upon information and belief, at all relevant times hereto, FM was authorized to
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`underwrite insurance policies covering risks in the State of New York. Upon information and
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`belief, FM has, at all relevant times, conducted business in the State of New York, including
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`engaging in the business of selling insurance and investigating claims dealing with
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`policyholders, property, or activities located in the State of New York.
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`JURISDICTION AND VENUE
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`11.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1332 because there is complete diversity of citizenship between the parties to this action
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`and because the amount in controversy exceeds $75,000, exclusive of interest and costs.
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`12.
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`Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 4 of 17
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`I.
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`The Coronavirus Outbreak and Thor’s Losses
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`FACTUAL ALLEGATIONS
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`13.
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`Thor owns commercial properties across the United States and around the world,
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`renting those properties to hundreds of tenants that use the properties for all manner of
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`businesses including office space, retail stores (including many of the largest retail chains in the
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`country), restaurants, and bars.
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`14.
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`From the first reported case in the United States in January 2020 to the present,
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`the impact of the coronavirus has been staggering. More than 1,000,000 Americans have had
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`confirmed cases of COVID-19, and more than 60,000 have died.
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`15.
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`State and local governments have taken drastic actions in an effort to stem the tide
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`of the disease. On March 20, 2020, Illinois Governor J.B. Pritzker signed a statewide stay-at-
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`home order that also ordered all non-essential business and operations to cease.
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`16.
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`On March 21, 2020, New Jersey Governor Philip Murphy issued Executive Order
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`No. 107, directing all residents to stay at home unless for certain essential activities, and
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`specifically closing “[t]he brick-and-mortar premises of all non-essential businesses.”
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`17.
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`On March 22, 2020, New York Governor Andrew Cuomo issued the “New York
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`State on PAUSE” executive order, ordering the closure of all non-essential businesses and
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`prohibiting non-essential gatherings. On April 16, Governor Cuomo extended the order through
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`May 15, 2020, meaning it will be in place, even if not extended further, for more than fifty days.
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`Similar executive orders have been issued by state and municipal governments across the
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`country.
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`18. Many of the brick-and-mortar business premises that Thor owns and rents have
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`been shuttered by these various stay-at-home orders. Many of these properties are commercial
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`real estate in some of the country’s largest and most expensive markets such as New York City
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 5 of 17
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`and Chicago. At the same time as these orders went into effect, many of Thor’s tenants, unable
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`to generate revenue, contacted Thor to inform it they could not pay their rent and to request
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`abatements and/or other accommodations. As a result, Thor has suffered and will continue to
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`suffer significant business interruption.
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`19.
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`Thor has had confirmed cases of COVID-19 at multiple properties and has had to
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`take action to secure and preserve those properties, and as of the filing of this Complaint it has
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`estimated that it will lose in excess of $20 million in rental income alone. These losses are
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`ongoing and could increase substantially depending on the length and ultimate severity of the
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`outbreak and the government response.
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`II.
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`The FM Policy
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`20.
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`Thor owns many subsidiaries that directly own the properties listed in Appendix
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`A of the Policy, the “Schedule of Locations,” all of which are insured under the Policy. FM
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`issued the Policy to Thor “and any subsidiary, and Thor Equities, LLC interest in any partnership
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`or joint venture in which Thor Equities, LLC has management control or ownership as now
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`constituted or hereafter is acquired” for the policy period March 15, 2020 to March 15, 2021.
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`See Ex. A at p. 10 of 92.1
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`21.
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`To the extent any of Thor’s losses are deemed to have taken place prior to March
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`15, 2020, Thor was insured in the prior year under a policy also issued by FM with materially
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`identical terms and conditions. Thor seeks coverage under that policy, Mutual Corporation Non-
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`Assessable Policy No. 1050440 with the policy period of March 15, 2019 to March 15, 2020, for
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`any such losses.
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`1 As the Policy is not consecutively paginated, citations to the Policy are to the page numbers of the PDF document
`attached as Exhibit A.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 6 of 17
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`22.
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`The Policy provides a maximum per-occurrence limit of liability of $750 million,
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`with various sublimits and time limits. See id. at 12. Claims are subject to a deductible, as
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`relevant here, of $100,000 per occurrence. See id. at 16–17.2
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`23. Occurrence is defined as “the sum total of all loss or damage of the type insured,
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`including any insured TIME ELEMENT loss, arising out of or caused by one discrete event of
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`physical loss or damage.” Id. at 78.
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`A. The Policy’s Property Damage Coverage
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`24.
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`The Policy broadly provides property damage coverage for all risks of physical
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`loss or damage. Unless damage is clearly included within a listed sublimit, the full $750 million
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`limit of liability is available for Thor’s damages. See id. at 10, 12.
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`25.
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`The Property Damage section contains several “Additional Coverages” potentially
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`applicable to Thor’s coronavirus losses.
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`26.
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`The Property Damage section’s COMMUNICABLE DISEASE RESPONSE
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`coverage provides:
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`If a location owned, leased or rented by the Insured has the actual not suspected
`presence of communicable disease and access to such location is limited,
`restricted or prohibited by:
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`1) an order of an authorized governmental agency regulating the actual not
`suspected presence of communicable disease; or
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`2) a decision of an Officer of the Insured as a result of the actual not suspected
`presence of communicable disease,
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`this Policy covers the reasonable and necessary costs incurred by the Insured at
`such location with the actual not suspected presence of communicable disease
`for the:
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`1) cleanup, removal and disposal of the actual not suspected presence of
`communicable diseases from insured property; and
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`2 Terms in bold or capitalized in this Complaint appear in that manner in the Policy.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 7 of 17
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`2) actual costs of fees payable to public relations services or actual costs of
`using the Insured’s employees for reputation management resulting from the
`actual not suspected presence of communicable diseases on insured property.
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`This Additional Coverage will apply when access to such location is limited,
`restricted or prohibited in excess of 48 hours.
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`This Additional Coverage does not cover any costs incurred due to any law or
`ordinance with which the Insured was legally obligated to comply prior to the
`actual not suspected presence of communicable disease.
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`Id. at 32.
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`27.
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`The Policy defines location broadly as any building in the Policy’s Schedule of
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`Locations or any building “bounded on all sides by public streets, clear land space or open
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`waterways.” Id. at 77.
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`28.
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`Communicable disease is defined as any “disease which is . . . transmissible
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`from human to human by direct or indirect contact with an affected individual or the individual’s
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`discharges . . . .” Id. at 75.
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`29.
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`The COMMUNICABLE DISEASE RESPONSE coverage shares a $1 million
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`aggregate sublimit with the INTERRUPTION BY COMMUNICABLE DISEASE coverage
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`described below. See id. at 13.
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`30.
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`The Property Damage coverage also contains coverage for
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`DECONTAMINATION COSTS, providing:
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`If insured property is contaminated as a direct result of insured physical damage
`and there is in force at the time of the loss any law or ordinance regulating
`contamination due to the actual not suspected presence of contaminant(s), then
`this Policy covers, as a direct result of enforcement of such law or ordinance, the
`increased cost of decontamination and/or removal of such contaminated insured
`property in a manner to satisfy such law or ordinance. This Additional Coverage
`applies only to that part of insured property so contaminated due to the actual not
`suspected presence of contaminant(s) as a direct result of insured physical
`damage.
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`Id. at 33–34.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 8 of 17
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`31.
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`The Property Damage section also has an Additional Coverage for EXPEDITING
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`COSTS:
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`This Policy covers the reasonable and necessary costs incurred:
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`1) for the temporary repair of insured physical damage to insured property;
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`2) for the replacement of insured equipment suffering insured physical
`damage; and
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`3) to expedite the permanent repair or replacement of such damaged property.
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`Id. at 34.
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`32.
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`The sublimit for EXPEDITING COSTS and EXTRA EXPENSE (combined) is
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`$100 million. See id. at 14. The coverage for EXTRA EXPENSE is part of the Time Element
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`section and is described below.
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`33.
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`The Property Damage coverage contains a “Contamination Exclusion,” which
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`provides:
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`This Policy excludes the following unless directly resulting from other physical
`damage not excluded by this Policy:
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`1) contamination, and any cost due to contamination including the inability
`to use or occupy property or any cost of making property safe or suitable for
`use or occupancy. If contamination due only to the actual not suspected
`presence of contaminant(s) directly results from other physical damage not
`excluded by this Policy, then only physical damage caused by such
`contamination may be insured.
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`Id. at 24.
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`34.
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`The Policy defines contamination as “any condition of property due to the actual
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`or suspected presence of any foreign substance, impurity, pollutant, hazardous material, poison,
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`toxin, pathogen or pathogenic organism, bacteria, virus, disease causing or illness causing agent,
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`fungus, mold or mildew.” Id. at 76.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 9 of 17
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`B. The Policy’s Time Element Coverage
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`35.
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`In addition to the Policy’s coverage for Property Damage, the Policy’s Time
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`Element section provides coverage for lost earnings or lost profits (at Thor’s option) “directly
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`resulting from physical loss or damage of the type insured” to Thor’s property. See id. at 45–46.
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`36.
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`The Time Element coverage also “covers expenses reasonably and necessarily
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`incurred by the Insured to reduce the loss otherwise payable under this section of this Policy.”
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`Id. at 46.
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`37.
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`The Time Element section includes EXTRA EXPENSE coverage, defined as
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`“extra expenses to temporarily continue as nearly normal as practicable the conduct of the
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`Insured’s business.” Id. at 50.
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`38.
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`Critically for a commercial property owner such as Thor, the Time Element
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`section also includes RENTAL INSURANCE, covering:
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`1) the fair rental value of any portion of the property occupied by the Insured;
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`2) the income reasonably expected from rentals of unoccupied or unrented
`portions of such property; and
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`3) the rental income from the rented portions of such property according to
`bona fide leases, contracts or agreements in force at the time of loss,
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`all not to include noncontinuing charges and expenses.
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`Id. at 52.
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`39.
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`The Time Element section provides an EXTENDED PERIOD OF LIABILITY
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`that applies to RENTAL INSURANCE, covering the reduction of rental income “for such
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`additional length of time as would be required with the exercise of due diligence and dispatch to
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`restore the Insured’s business to the condition that would have existed had no loss happened.”
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`The Policy has an EXTENDED PERIOD OF LIABILITY of 365 days. Id. at 14, 64
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 10 of 17
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`40.
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`The Time Element section also includes several potentially applicable “coverage
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`extensions.”
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`41.
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`The CIVIL OR MILITARY AUTHORITY coverage provides:
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`This Policy covers the Actual Loss Sustained and EXTRA EXPENSE incurred by
`the Insured during the PERIOD OF LIABILITY if an order of civil or military
`authority limits, restricts or prohibits partial or total access to an insured location
`provided such order is the direct result of physical damage of the type insured at
`the insured location or within five statute miles/eight kilometres of it.
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`Id. at 58.
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`42.
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`The CONTINGENT TIME ELEMENT EXTENDED coverage provides:
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`This Policy covers the Actual Loss Sustained and EXTRA EXPENSE incurred by
`the Insured during the PERIOD OF LIABILITY directly resulting from physical
`loss or damage of the type insured to property of the type insured at contingent
`time element locations located within the TERRITORY of this Policy.
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`As respects CONTINGENT TIME ELEMENT EXTENDED:
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`1) Time Element loss recoverable under this Extension is extended to include the
`following TIME ELEMENT COVERAGE EXTENSIONS:
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`CIVIL OR MILITARY AUTHORITY
`CONTINGENT TIME ELEMENT EXTENDED . . .
`EXTENDED PERIOD OF LIABILITY
`INGRESS/EGRESS . . . .
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`Id. at 59.
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`43.
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`Contingent time element locations include “A. any location: 1) of a direct
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`customer, supplier, contract manufacturer or contract service provider to the Insured” and “any
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`location of a company that is a direct or indirect customer, supplier, contract manufacturer or
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`contract service provider to a location described in A1 above.” Id. at 76.
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`44.
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`The Policy has a per-occurrence sublimit for CONTINGENT TIME ELEMENT
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`EXTENDED of $25 million. See id. at 13.
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`45.
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`Additionally, the Time Element coverage for INGRESS/EGRESS provides:
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`10
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 11 of 17
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`This Policy covers the Actual Loss Sustained and EXTRA EXPENSE incurred by
`the Insured during the PERIOD OF LIABILITY due to the necessary interruption
`of the Insured’s business due to partial or total physical prevention of ingress to or
`egress from an insured location, whether or not the premises or property of the
`Insured is damaged, provided that such prevention is a direct result of physical
`damage of the type insured to property of the type insured.
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`Id. at 59.
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`46.
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`The Policy also provides LOGISTICS EXTRA COST coverage for, in relevant
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`part, “extra cost incurred by the Insured during the PERIOD OF LIABILITY due to the
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`disruption of the normal movement of goods or materials: . . . 2) directly between an insured
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`location and a location of a direct customer, supplier, contract manufacturer or contract service
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`provider to the Insured,” as a result of physical loss or damage to property in the U.S. Id. at 60.
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`47.
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`The Time Element section also provides coverage for loss suffered by Thor in
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`connection with damage to ATTRACTION PROPERTY as follows:
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`This Policy covers the Actual Loss Sustained and EXTRA EXPENSE incurred by
`the Insured during the PERIOD OF LIABILITY directly resulting from physical
`loss or damage of the type insured to property of the type insured that attracts
`business to an insured location and is within 1 statute mile/1.6 kilometres of the
`insured location.
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`Id. at 63.
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`48.
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`The time limits for ATTRACTION PROPERTY, CIVIL OR MILITARY
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`AUTHORITY, and INGRESS/EGRESS coverages are 30 days. See id. at 13–15.
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`49.
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`The Time Element section also provides coverage for DELAY IN STARTUP:
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`GROSS EARNINGS or GROSS PROFIT and EXTRA EXPENSE are extended
`to cover the Actual Loss Sustained incurred by the Insured during the PERIOD
`OF LIABILITY due to the reasonable and necessary delay in startup of business
`operations directly resulting from physical loss or damage of the type insured to
`insured property under construction at an insured location.
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`Id. at 64.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 12 of 17
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`50.
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`In addition to the above, the Time Element section includes coverage for
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`INTERRUPTION BY COMMUNICABLE DISEASE:
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`If a location owned, leased or rented by the Insured has the actual not suspected
`presence of communicable disease and access to such location is limited,
`restricted or prohibited by:
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`1) an order of an authorized governmental agency regulating the actual not
`suspected presence of communicable disease; or
`
`2) a decision of an Officer of the Insured as a result of the actual not suspected
`presence of communicable disease,
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`this Policy covers the Actual Loss Sustained and EXTRA EXPENSE incurred by
`the Insured during the PERIOD OF LIABILITY at such location with the actual
`not suspected presence of communicable disease.
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`This Extension will apply when access to such location is limited, restricted, or
`prohibited in excess of 48 hours.
`
`Id. at 64–65.
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`51.
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`The Policy has a time limit for INTERRUPTION BY COMMUNICABLE
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`DISEASE coverage of 365 days, and the coverage shares the $1 million sublimit with the
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`COMMUNICABLE DISEASE RESPONSE coverage provided in the Property Damage section.
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`See id. at 15.
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`52.
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`The Time Element section’s PROTECTION AND PRESERVATION OF
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`PROPERTY TIME ELEMENT coverage provides:
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`This Policy covers the Actual Loss Sustained by the Insured for a period of time
`not to exceed 48 hours prior to and 48 hours after the Insured first taking
`reasonable action for the temporary protection and preservation of property
`insured by this Policy provided such action is necessary to prevent immediately
`impending insured physical loss or damage to such insured property.
`
`Id. at 66.
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`III. Thor’s Claim to FM
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`53.
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`Thor gave prompt notice of its claim for its coronavirus losses to FM. In its
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`response to that notice, on April 6, 2020, FM’s New York claims manager, William Reed,
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 13 of 17
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`contacted Thor’s counsel by phone. On that call, Thor’s counsel stated clearly that Thor’s claim
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`would greatly exceed the Policy’s $1 million sublimit for the communicable disease coverages.
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`54.
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`Nevertheless, in its formal acknowledgment letter, FM stated “We understand this
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`loss is reported for a claim to be submitted under the Policy’s ADDITIONAL COVERAGES for
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`COMMUNCABLE DISEASE RESPONSE and INTERRUPTION BY COMMUNICABLE
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`DISEASE.”
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`55.
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`By focusing solely on the communicable disease coverages in its
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`acknowledgment letter, FM sent a clear message that it was not prepared to consider Thor’s
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`significant costs and losses under any of the Policy’s other coverages, despite those losses being
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`covered under those coverages.
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`56.
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`Thor’s losses are covered under the other coverages and are not excluded by the
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`Contamination Exclusion because the Contamination Exclusion only excludes costs due to
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`contamination, not losses such as Time Element losses, and the Contamination Exclusion
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`cannot apply to anything defined as communicable disease because, as neither the
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`Contamination Exclusion nor the communicable disease coverages reference each other, if the
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`Contamination Exclusion applies to communicable disease the communicable disease
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`coverages are illusory. Moreover, the Contamination Exclusion only applies to costs incurred as
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`a direct result of contamination, not costs incurred as a result of other causes.
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`57.
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`On April 24, Thor responded to FM’s acknowledgment letter to reiterate that its
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`claim for coverage was made under all potentially applicable coverages in the Policy and to
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`confirm to FM that Thor would respond to all reasonable requests for information and provide a
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`proof of loss as required by the Policy.
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 14 of 17
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`58.
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`The coronavirus outbreak has caused physical loss or damage to Thor’s properties
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`or other properties that have caused losses to Thor covered under the Policy. The bases for
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`coverage include, but are not limited to, the following: Costs and loss due to the actual not
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`suspected presence of communicable disease are covered under the Policy’s communicable
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`disease coverages. Additionally, Thor’s losses that are not due to the actual not suspected
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`presence of communicable disease trigger coverage under many of the Policy’s other coverages.
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`The Time Element section of the Policy provides coverage for Thor’s loss of rental income from
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`occupied and unoccupied properties. To the extent that the state or local executive orders of the
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`type described above affecting Thor’s properties constitute orders of civil authority restricting
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`access to Thor’s properties due to physical loss or damage, Thor is entitled to civil authority
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`and/or ingress/egress coverage. To the extent that Thor has incurred costs or suffered losses due
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`to coronavirus loss or damage at properties of its customers or suppliers, those losses are covered
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`as extra expense, contingent time element losses, and/or expediting expenses. Costs or losses
`
`incurred due to inability to complete construction projects are covered under the delay in startup
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`coverage.
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`59.
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`Thor has paid all required premiums and has otherwise complied with all terms
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`and conditions of the Policy.
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`60. With FM’s unmistakable position that it will not provide the full extent of
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`coverage required for coronavirus losses, Thor turns to this Court to make clear to FM the full
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`extent of its coverage obligations under the Policy.
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`FIRST CAUSE OF ACTION
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`(Anticipatory Breach of Contract)
`
`61.
`
`Plaintiff repeats and realleges the allegations set forth in the foregoing paragraphs
`
`of this Complaint as if fully set forth herein.
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`
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 15 of 17
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`62.
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`The Policy constitutes a valid and enforceable contract between Thor and FM
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`because Thor and its subsidiaries are named insureds under the Policy.
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`63.
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`Thor provided prompt notice of its coronavirus losses, performed all obligations
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`required of it under the Policy, and/or was ready willing and able to perform its obligations under
`
`the Policy at the time FM stated only that it was considering Thor’s claim under the
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`communicable disease coverages of the Policy.
`
`64.
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`FM’s statement that it was considering Thor’s claim under the communicable
`
`disease coverages of the Policy in response to Thor’s notice of loss, which stated that Thor was
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`making a claim for coverage under multiple coverages, specifically including coverages other
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`than the communicable disease coverages, was a positive and unequivocal expression that FM
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`would not perform its obligations to provide coverage outside of the communicable disease
`
`coverages.
`
`65.
`
`Under the terms of the Policy, FM must pay up to $750,000,000 for any loss
`
`covered under the Policy, subject only to sublimits or waiting periods for specific coverages.
`
`66.
`
`As described above, Thor has sustained, and is continuing to sustain, losses
`
`covered under the Policy.
`
`67.
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`FM has not paid any amounts to Thor in connection with its claim, and Thor has a
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`reasonable belief that FM will not pay the full amount it is required to pay under the Policy for
`
`Thor’s coronavirus losses.
`
`68.
`
`As a direct and proximate result of FM’s anticipated breach of contract, Thor will
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`suffer damages in an amount to be determined at trial, plus consequential damages, attorneys’
`
`fees, and pre- and post-judgment interest to the extent permitted by law.
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`
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 16 of 17
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`SECOND CAUSE OF ACTION
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`(Declaratory Judgment)
`
`69.
`
`Plaintiff repeats and realleges the allegations set forth in the foregoing paragraphs
`
`of this Complaint as if fully set forth herein.
`
`70.
`
`Pursuant to the terms of the Policy, FM is obligated to pay, up to the limit of
`
`liability or any applicable sublimit or time period, for property damage or time element losses
`
`covered under the Policy and not otherwise excluded from coverage.
`
`71.
`
`As detailed above, Thor’s costs and losses caused by the coronavirus outbreak are
`
`covered under multiple coverages of the Policy and are not excluded.
`
`72.
`
`FM disputes, and/or Thor reasonably believes it will dispute, its legal obligation
`
`to pay Thor’s claim.
`
`73.
`
`Pursuant to 28 U.S.C. § 2201, Thor is entitled to a declaration by this Court of
`
`FM’s obligations under its Policy.
`
`74.
`
`An actionable and justiciable controversy exists or will exist between Thor and
`
`FM concerning the proper construction of the Policy, and the rights and obligations of the parties
`
`thereto, with respect to Thor’s claim for costs or losses arising out of the coronavirus outbreak.
`
`75.
`
`Pursuant to 28 U.S.C. § 2201, this Court should enter a declaratory judgment in
`
`favor of Thor and against FM, declaring that there is coverage available for Thor’s claim up to
`
`the full limits or applicable sublimits of the Policy, and, pursuant to 28 U.S.C. § 2202, any other
`
`relief this Court deems proper. Such a declaration would resolve the current controversy
`
`between Thor and FM.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Thor prays for relief as follows:
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`
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`Case 1:20-cv-03380-AT Document 1 Filed 04/30/20 Page 17 of 17
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`(a)
`
`On the First Cause of Action, Thor requests that the Court enter judgment against
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`FM, awarding Thor damages in an amount to be determined at trial, but not less than $75,000,
`
`plus consequential damages, attorneys’ fees, and pre- and post-judgment interest to the extent
`
`permitted by law;
`
`(b)
`
`On the Second Cause of Action, Thor requests that the Court enter a declaratory
`
`judgment in favor of Thor against FM, declaring that FM is required to pay Thor, up to the
`
`applicable limits of the Policy, for claimed amounts under the Policy; and
`
`(c)
`
`Additionally, Thor requests such other and further relief as the Court deems just
`
`and proper.
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`JURY DEMAND
`
`Thor hereby demands a trial by jury on all issues so triable.
`
`
`
`
`
`
`
`MCKOOL SMITH, P.C.
`
`/s/ Robin L. Cohen
`Robin L. Cohen
`Kenneth H. Frenchman
`Alexander M. Sugzda
`One Manhattan West
`395 9th Avenue, 50th Floor
`New York, New York 10001
`Tel: (212) 402-9400
`Fax: (212) 402-9444
`rcohen@mckoolsmith.com
`kfrenchman@mckoolsmith.com
`asugzda@mckoolsmith.com
`
`Attorneys for Plaintiff Thor Equities, LLC
`
`Dated: New York, New York
`
`April 30, 2020
`
`
`
`
`
`17
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`