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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`ERIC R. SHANTZER, DDS d/b/a
`RICHBORO DENTAL EXCELLENCE,
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`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`TRAVELERS CASUALTY INSURANCE
`COMPANY OF AMERICA, THE
`TRAVELERS INDEMNITY COMPANY,
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`Defendant.
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`Plaintiff, Eric R. Shantzer, DDS, d/b/a Richboro Dental Excellence (“Plaintiff”) brings this
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`Complaint against Defendant, Travelers Casualty Insurance Company of America and/or The
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`Travelers Indemnity Company (“Defendant” or “Travelers”) and alleges as follows:
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`NATURE OF THE CASE
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`1.
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`This is a civil action seeking declaratory relief arising from Plaintiff’s contract of
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`insurance with Defendant.
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`2.
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`In light of the Coronavirus global pandemic and state and local orders mandating
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`that all non-essential in-store businesses must shut down, and the suffering of physical harm and
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`impact and damages, within Plaintiff’s business premises and/or within the immediate area
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`surrounding and outside its business premises, Plaintiff shut the doors of his business to customers
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`on March 16, 2020. Plaintiff’s normal office hours were usually Monday from 9:00 a.m. to 8:00
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`p.m.; Tuesday from 9:00 a.m. to 6:00 p.m.; Wednesday from 7:00 a.m. to noon; and Thursday
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`from 7:00 a.m. to noon or 1:00 depending upon demand.
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`3.
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`Plaintiff’s insurance policy provides coverage for all non-excluded business losses
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`and thus provides coverage here.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 2 of 11
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`4.
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`As a result, Plaintiff is entitled to declaratory relief that its business is covered for
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`all business losses that have been suffered and sustained, which losses are in an amount greater
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`than $150,000.00.
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`JURISDICTION
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`5.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1332 because there is complete diversity of citizenship between Plaintiff and Defendant. Plaintiff
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`is a dental office in Pennsylvania and a citizen of Pennsylvania. Defendant is a New York
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`corporation with its principal place of business in New York. Further, Plaintiff has suffered
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`business losses in an amount greater than $150,000.00. The amount in controversy necessary for
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`diversity jurisdiction over a declaratory judgment action is measured by the value of those business
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`losses. Id. § 1332(a).
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`6.
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`The Court has personal jurisdiction over Defendant because at all relevant times
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`they have engaged in substantial business activities in the Commonwealth of Pennsylvania. At all
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`relevant times, Defendant transacted, solicited, and conducted business in Pennsylvania through
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`its employees, agents, and/or sales representatives, and derived substantial revenue from such
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`business in Pennsylvania.
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`7.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391(a) because a substantial
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`portion of the wrongful acts upon which this lawsuit is based occurred in this District. Venue is
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`also proper pursuant to 28 U.S.C. § 1391(c) because Defendant is a corporation that has substantial,
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`systematic, and continuous contacts in the Commonwealth of Pennsylvania, and as a result is
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`subject to personal jurisdiction in this District.
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`8.
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`The acts and/or omissions complained of took place, in whole or in part, within the
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`venue of this Court.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 3 of 11
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`PARTIES
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`9.
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`At all relevant times, Plaintiff was authorized to do business and was doing business
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`in the Commonwealth of Pennsylvania, County of Bucks. Plaintiff operates, manages and owns a
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`dental office at two locations. These locations include 130 Almshouse Road, Suite 406, Richboro,
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`Pennsylvania 18954 and 804 2nd Street Pike, Unit D, Southampton, Pennsylvania 18966 (“Insured
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`Properties”). Plaintiff is a citizen of Pennsylvania.
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`10.
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`At all relevant times, Defendant Travelers Casualty Insurance Company of
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`America/The Travelers Indemnity Company is a corporation doing business in the Commonwealth
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`of Pennsylvania. Defendant issued an insurance policy with Policy Number 680-7263M141-19-
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`42 to Plaintiff for the period October 7, 2019 to October 7, 2020. See Policy Declaration, attached
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`hereto as Exhibit 1. Defendant transacts business of insurance in the Commonwealth of
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`Pennsylvania and within the County of Bucks, and the basis of this suit arises out of such conduct.
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`Defendant is headquartered in New York at 485 Lexington Avenue, New York, New York 10017.
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`FACTUAL BACKGROUND
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`I.
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`Insurance Coverage
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`11.
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`Defendant entered into a contract of insurance with Plaintiff, whereby Plaintiff
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`agreed to make payments to Defendant in exchange for Defendant’s promise to indemnify Plaintiff
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`for losses including, but not limited to, business income losses at Plaintiff’s Insured Properties.
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`12.
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`The Insured Properties are covered under a policy issued by Defendant. See Ex. 1
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`(hereinafter “Policy”).
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`13.
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`The Policy provides, among other things property, business personal property,
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`business income and extra expense, contamination coverage, and additional coverages.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 4 of 11
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`14.
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`Plaintiff faithfully paid policy premiums to Defendant, specifically to provide,
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`among other things, additional coverages in the event of business interruption or closures for a
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`variety of reasons, including by order of Civil Authority.
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`15.
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`Under the Policy, business interruption insurance coverage is extended to apply to,
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`inter alia, the actual loss of business income sustained and the actual, necessary and reasonable
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`extra expenses incurred.
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`16.
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`The Policy is an all-risk policy, insofar as it provides that covered causes of loss
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`under the policy means direct physical loss or direct physical damage unless the loss is specifically
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`excluded or limited in the Policy.
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`17.
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`Based on information and belief, Defendant has accepted the policy premiums with
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`no intention of providing any coverage for business losses or the Civil Authority extension due to
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`a loss and shutdown from a virus pandemic. Plaintiff contacted its insurance agent about making
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`a claim under the policy and was told that Defendant would reject the claim.
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`II. The Coronavirus Pandemic
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`18.
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`The scientific community, and those personally affected by the virus, recognize
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`COVID-19 as a cause of real physical loss and damage. It is clear that contamination of the Insured
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`Property would be a direct physical loss requiring remediation to clean the surfaces of the offices
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`and retail store constituting the Insured Property.
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`19.
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`The virus that causes COVID-19 remains stable and transmittable in aerosols for
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`up to three hours, up to four hours on copper, up to 24 hours on cardboard and up to two to three
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`days on plastic and stainless steel. See https://www.nih.gov/news-events/news-releases/new-
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`coronavirus-stable-hours-surfaces (last visited April 9, 2020).
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 5 of 11
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`20.
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`The CDC has issued a guidance that gatherings of more than 10 people must not
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`occur. People in congregate environments, which are places where people live, eat, and sleep in
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`close proximity, face increased danger of contracting COVID-19.
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`21.
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`The global Coronavirus pandemic is exacerbated by the fact that the deadly virus
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`physically infects and stays on surfaces of objects or materials, “fomites,” for up to twenty-eight
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`(28) days.
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`22.
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`China, Italy, France, and Spain have implemented the cleaning and fumigating of
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`public areas prior to allowing them to re-open publicly due to the intrusion of microbials.
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`III. Civil Authority
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`23.
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`On March 6, 2020, Pennsylvania Governor Tom Wolf issued a Proclamation of
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`Disaster Emergency, the first formal recognition of an emergency situation in the Commonwealth
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`as a result of COVID-19. See Exhibit 2.
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`24.
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`On March 19, 2020, Governor Wolf issued an Order requiring all non-life-
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`sustaining businesses in Commonwealth to cease operations and close all physical locations.
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`Businesses that were permitted to remain open were required to follow “social distancing practices
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`and other mitigation measures defined by the Centers for Disease Control.” See Exhibit 3;
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`https://www.scribd.com/document/452416027/20200319-TWW-COVID-19-Business-Closure-
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`Order (last visited April 7, 2019).
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`25.
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`On March 23, 2020, Governor Wolf issued a Stay-at-Home Order for residents of
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`Philadelphia, Allegheny, Bucks, Chester, Delaware, Monroe, and Montgomery Counties. See
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`Exhibit 4. On that same date, the Pennsylvania Department of Health issued a similar Order, noting
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`that “operation of non-life-sustaining businesses present the opportunity for unnecessary
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`gatherings, personal contact and interaction that will increase the risk of transmission and the risk
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`of community spread of COVID–19.” See Exhibit 5.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 6 of 11
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`26.
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`On April 1, 2020, Governor Wolf extended the March 23, 2020 Stay-at-Home
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`Order to the entire Commonwealth of Pennsylvania. See Exhibit 6.
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`27.
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`The Pennsylvania Supreme Court recently clarified the Governor’s Orders and
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`supported Plaintiff’s position that physical loss and damage exists, resulting in coverage here. See
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`Friends of DeVito, et. al v. Wolf, No. 68 MM 2020 (Pa. April 13, 2020).
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`28.
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`Further, on April 10, 2020, President Trump seemed to support insurance coverage
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`for business loss like that suffered by the Plaintiff:
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`REPORTER: Mr. President may I ask you about credit and debt as
`well. Many American individuals, families, have had to tap their
`credit cards during this period of time. And businesses have had to
`draw down their credit lines. Are you concerned Mr. President that
`that may hobble the U.S. economy, all of that debt number one? And
`number two, would you suggest to credit card companies to reduce
`their fees during this time?
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`PRESIDENT TRUMP: Well it’s something that we’ve already
`suggested, we’re talking to them. Business interruption insurance,
`I’d like to see these insurance companies—you know you have
`people that have paid. When I was in private I had business
`interruption. When my business was interrupted through a hurricane
`or whatever it may be, I’d have business where I had it, I didn’t
`always have it, sometimes I had it, sometimes, I had a lot of different
`companies. But if I had it I’d expect to be paid. You have people. I
`speak mostly to the restaurateurs, where they have a restaurant,
`they’ve been paying for 25, 30, 35 years, business interruption.
`They’ve never needed it. All of a sudden they need it. And I’m very
`good at reading language. I did very well in these subjects, OK. And
`I don’t see the word pandemic mentioned. Now in some cases it is,
`it’s an exclusion. But in a lot of cases I don’t see it. I don’t see it
`referenced. And they don’t want to pay up. I would like to see the
`insurance companies pay if they need to pay, if it’s fair. And they
`know what’s fair, and I know what’s fair, I can tell you very quickly.
`But business interruption insurance, that’s getting a lot money to a
`lot of people. And they’ve been paying for years, sometimes they
`just started paying, but you have people that have never asked for
`business interruption insurance, and they’ve been paying a lot of
`money for a lot of years for the privilege of having it, and then when
`they finally need it, the insurance company says ‘we’re not going to
`give it.’ We can’t let that happen.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 7 of 11
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`https://youtu.be/cMeG5C9TjU (last visited on April 17, 2020) (emphasis added).
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`29.
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`The President is articulating a few core points:
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`a. Business interruption is a common type of insurance. It applies to a variety of
`business establishments, including dental practices as the Plaintiff’s.
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`b. Businesses pay in premiums for this coverage and should reasonably expect
`they’ll receive the benefit of the coverage.
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`c. This pandemic should be covered unless there is a specific exclusion for
`pandemics.
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`d. If insurers deny coverage, they would be acting in bad faith.
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`30.
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`Governor Wolf and Pennsylvania Secretary of Health have now extended the
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`statewide
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`stay-at-home
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`orders
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`through
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`Friday, May
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`8,
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`2020.
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`See
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`https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-extend-statewide-stay-at-home-
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`order-until-may-8/ (last visited April 22, 2020).
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`31.
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`These Orders and proclamations, as they relate to the closure of all “non-life-
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`sustaining businesses,” evidence an awareness on the part of both state and local governments that
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`COVID-19 causes damage to property. This is particularly true in places where business is
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`conducted, such as Plaintiffs’, as the requisite contact and interaction causes a heightened risk of
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`the property becoming contaminated.
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`IV.
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`Impact to Plaintiff
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`32.
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`As a result of the Orders referenced herein, Plaintiff is no longer able to offer dental
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`services except for emergency treatment.
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`33.
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`The Insured Properties are more susceptible to being or becoming contaminated, as
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`both respiratory droplets and fomites are more likely to be retained on the Insured Properties and
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`remain viable for far longer as compared to other facilities with open-air ventilation.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 8 of 11
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`34.
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`Plaintiff’s business is also highly susceptible to rapid person-to-property
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`transmission of the virus, and vice-versa, because the activities of the patients and the staff require
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`them to work in close proximity to the property.
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`35.
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`The virus is physically impacting the Insured Properties. Any effort by Defendant
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`to deny the reality that the virus causes physical loss and damage would constitute a false and
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`potentially fraudulent misrepresentation that could endanger Plaintiff and the public.
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`36.
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`A declaratory judgment determining that the coverage provided under the Policy
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`will prevent Plaintiff from being left without vital coverage acquired to ensure the survival of the
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`business due to the shutdown caused by the civil authorities’ response is necessary. As a result of
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`these Orders, Plaintiff has incurred, and continues to incur, among other things, a substantial loss
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`of business income and additional expenses covered under the Policy.
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`CAUSE OF ACTION
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`DECLARATORY RELIEF
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`37.
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`Plaintiff re-alleges and incorporates by reference into this cause of action each and
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`every allegation set forth in each and every paragraph of this Complaint.
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`38.
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`The Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides that in “a case of
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`actual controversy within its jurisdiction . . . any court of the United States . . . may declare the
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`rights and other legal relations of any interested party seeking such declaration, whether or not
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`further relief is or could be sought.” 28 U.S.C. § 2201(a); see also Principal Life Ins. Co. v. Minder,
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`No. CIV A 08-5899, 2009 WL 1917096 (E.D. Pa. July 1, 2009); Miller v. Liberty Mut. Grp., 97 F.
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`Supp. 2d 672 (W.D. Pa. 2000).
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`39.
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`An actual controversy has arisen between Plaintiff and Defendant as to the rights,
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`duties, responsibilities and obligations of the parties under the Policy in that Plaintiff contends and,
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`on information and belief, Defendant disputes and denies, inter alia, that:
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 9 of 11
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`a. The Orders constitute a prohibition of access to Plaintiff’s Insured Properties;
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`b. The prohibition of access by the Orders has specifically prohibited access as
`defined in the Policy;
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`c. The Orders trigger coverage;
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`d. The Policy provides coverage to Plaintiff for any current and future closures in
`Bucks County due to physical loss or damage directly or indirectly from the
`Coronavirus and/or pandemic circumstance under the Civil Authority coverage
`parameters;
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`e. The Policy provides business income coverage in the event that Coronavirus
`has directly or indirectly caused a loss or damage at the insured premises or
`immediate area of the Insured Properties; and
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`f. Resolution of the duties, responsibilities and obligation of the parties is
`necessary as no adequate remedy at law exists and a declaration of the Court is
`needed to resolve the dispute and controversy.
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`40.
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`Plaintiff seeks a Declaratory Judgment to determine whether the Orders constitute
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`a prohibition of access to Plaintiff’s Insured Properties.
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`41.
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`Plaintiff further seeks a Declaratory Judgment to affirm that the Orders trigger
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`coverage.
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`42.
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`Plaintiff further seeks a Declaratory Judgment to affirm that the Policy provides
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`coverage to Plaintiff for any current and future closures of businesses such as Plaintiff’s in Bucks
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`County due to physical loss or damage from the Coronavirus and/or the pandemic and the policy
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`provides business income coverage in the event that Coronavirus has caused a loss or damage at
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`the Insured Properties.
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`43.
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`Plaintiff does not seek any determination of whether the Coronavirus is physically
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`in or at the Insured Properties, amount of damages, or any other remedy other than declaratory
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`relief.
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 10 of 11
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff herein prays as follows:
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`a. For a declaration that the Orders constitute a prohibition of access to Plaintiff’s
`Insured Properties.
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`b. For a declaration that the prohibition of access by the Orders is specifically
`prohibited access as defined in the Policy.
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`c. For a declaration that the Orders trigger coverage under the Policy.
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`d. For a declaration that the Policy provides coverage to Plaintiff for any current,
`future and continued closures of non-essential businesses due to physical loss
`or damage directly or indirectly from the Coronavirus.
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`e. For a declaration that the Policy provides business income coverage in the event
`that Coronavirus has directly or indirectly caused a loss or damage at the
`Plaintiff’s Insured Properties or the immediate area of the Plaintiff’s Insured
`Properties.
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`f. For such other relief as the Court may deem proper.
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`TRIAL BY JURY IS DEMANDED
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`Plaintiff hereby demands trial by jury.
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`Dated: April 30, 2020
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`Respectfully submitted,
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`/s/ Daniel C. Levin
`Arnold Levin, Esq.
`Laurence S. Berman, Esq.
`Frederick Longer, Esq.
`Daniel Levin, Esq.
`LEVIN SEDRAN & BERMAN, L.L.P.
`510 Walnut Street, Suite 500
`Philadelphia, PA 19106-3697
`Telephone: (215) 592-1500
`alevin@lfsblaw.com
`lberman@lfsblaw.com
`flonger@lfsblaw.com
`dlevin@lfsblaw.com
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`10
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`Case 2:20-cv-02093-TJS Document 1 Filed 04/30/20 Page 11 of 11
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`Richard M. Golomb, Esq.
`Kenneth J. Grunfeld, Esq.
`GOLOMB & HONIK, P.C.
`1835 Market Street, Suite 2900
`Philadelphia, PA 19103
`Telephone: (215) 985-9177
`Facsimile: (215) 985-4169
`rgolomb@golombhonik.com
`kgrunfeld@golombhonik.com
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`W. Daniel “Dee” Miles, III, Esq.
`Rachel N. Boyd, Esq.
`Paul W. Evans, Esq.
`BEASLEY, ALLEN, CROW, METHVIN,
`PORTIS & MILES, P.C.
`P.O. Box 4160
`Montgomery, Alabama 36103
`Telephone: (334) 269-2343
`Facsimile: (334) 954-7555
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`Counsel for Plaintiff
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