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Dentist’s COVID-19 Insurance Suit Put To Sleep By Fla. Judge


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href=”https://www.law360.com/#”>Craig Clough

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Law360 (November 3, 2020, 5:37 PM EST) —
A Florida federal judge on Monday tossed a dentist’s lawsuit seeking to compel Hartford Casualty Insurance Co. to cover his practice’s COVID-19 related losses, agreeing with the insurer that the dentist’s losses weren’t covered by his policy as they did not constitute a physical harm to the property.

Two businesses associated with dentist Raymond H. Nahmad sued in May claiming the insurance company was breaching a contract by declining to cover the dentist’s losses following orders from the governor of Florida and the mayor of Miami-Dade County in March to suspend non-emergency or elective dental care to help stop the spread of COVID-19.

U.S. District Judge Beth Bloom dismissed the lawsuit with prejudice, ruling that the insurance policy covers a physical loss to the property and not a loss of revenue. The judge also said that even if a loss of revenue could be construed as a physical loss, there is a specific virus exclusion in the policy.

“As an initial matter, business income is not included within the list of covered property under the policy,” the judge said. “In fact, money and accounts are expressly excluded from the definition. But more importantly, the complaint itself alleges that there were no physical harms to the insured premises because plaintiffs’ injuries are purely economic.”

The judge added, “Federal courts in Florida that have examined whether economic losses caused by COVID-19 business closures or suspensions constitute a ‘direct physical loss’ or ‘physical harm’ have rejected plaintiffs’ arguments.”

Among the cases cited by the judge was the Southern District of Florida’s 2020 ruling in Malaube, LLC v. Greenwich Ins. Co. , where a restaurant sought coverage for losses from COVID-19. The court found there was no allegation COVID-19 was physically present on the premises, and also cited other rulings in Florida that found emergency government orders were insufficient to state a claim for COVID-19 looses because “there must be some allegation of actual harm.”

Judge Bloom also said that even if she assumed “for argument’s sake that plaintiffs had alleged facts triggering coverage under the policy, the virus exclusion would still apply to bar coverage for plaintiffs’ losses.”

The judge added, “Upon consideration, the court does not agree that plaintiffs’ distinction between the government orders versus the virus as the immediate cause of their losses avoids the plain language of the virus exclusion.”

A second claim seeking declaratory judgment was also dismissed by the judge, who said it was “duplicative” of the breach of contract allegation and also failed to state a claim.

Counsel for the parties did not

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health

Hartford judge hears testimony on safety of masks in schools as parents seek to block face coverings rule

A Hartford judge heard hours of testimony on the safety and efficacy of masks to help prevent the spread of the coronavirus Friday as he decides whether to grant an emergency injunction blocking a state requirement that students wear face coverings in schools.

In a daylong hearing on the injunction, Judge Thomas G. Moukawsher heard from both those downplaying the effectiveness of masks as well as those who said face coverings do not negatively impact children and slow the spread of the virus.

The hearing came several weeks after a group of parents and the CT Freedom Alliance sued the state’s education department and top officials to lift the requirement that children wear masks in schools out of fear of the harms they pose to children both mentally and physically.

The assertions in the lawsuit are in direct conflict with scientific evidence that shows that mask-wearing slows the spread of COVID-19. Lawyers for the state have argued there is no evidence to support the claim that masks are dangerous and that in fact masks are protecting students as they attend in-person classes.

Quick to send students home for virtual learning in the spring, Connecticut education officials outlined extensive measures to safely return students to school this fall. Key among those measures was a requirement that students and staff wear masks in school.

Moukawsher set Friday’s hearing to get testimony from two expert witnesses called by the plaintiffs, as well as the state’s witnesses, before ruling on the request for an injunction. The state has filed a motion to dismiss the case, which Moukawsher will address after the injunction.

Lawyers for the parents and CT Freedom Alliance first called on a Los Angeles-based psychiatrist, who said that masks can inhibit development, cause stress and led to other complications for children.

“I am greatly concerned by what I am seeing … children who are forced to wear masks in a school settings as well as outside the school settings are in imminent harm,” said Dr. Mark McDonald. McDonald also noted that the risk of oxygen deprivation can led to “permanent neurological damage in children, which we will not be able to address because the window will have passed.”

The state questioned McDonald’s beliefs in masks and the government response to the pandemic. McDonald said he believes that a healthy person confers no benefits to others when wearing a mask.

The plaintiff’s second witness, Knut Whittkowski, a New York-based epidemiologist with 35 years in the field, said he reviewed scores of studies and could not find evidence that masks were effective outside a health care setting.

“I went through all the literature I could find, and all the literature I was presented and I could not find convincing evidence on the effectiveness of surgery masks or bandannas or other masks worn in non-health care settings in general,” Whittkowski said. “And in particular, I couldn’t find evidence for the effectiveness of mask wearing by children.”

The U.S. Centers for Disease Control and

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fitness

Federal judge rules against gym owner who sued CA governor

The front entrance at Fitness System’s health club in Sacramento, with a copy of the Bill of Rights taped to the door. A federal judge dismissed a lawsuit Tuesday, Oct. 27, 2020, that the owner had filed against California Gov. Gavin Newsom and other officials because of COVID-19 shutdowns. 

The front entrance at Fitness System’s health club in Sacramento, with a copy of the Bill of Rights taped to the door. A federal judge dismissed a lawsuit Tuesday, Oct. 27, 2020, that the owner had filed against California Gov. Gavin Newsom and other officials because of COVID-19 shutdowns. 

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A federal judge on Tuesday dismissed a lawsuit against Gov. Gavin Newsom and San Joaquin County and Lodi officials that had been filed by the owner of three Sacramento-area gyms after officials ordered the shutdown of fitness centers last spring because of COVID-19.

After a Zoom hearing in Sacramento federal court, U.S. District Judge John A. Mendez agreed to requests by the defendants that the lawsuit be dismissed and found that the coronavirus pandemic was so dangerous that officials were within their authority when they first ordered the closures.

The orders were “a constitutional response to an unprecedented pandemic,” Mendez said.

Attorney John Killeen argued for the state that since Newsom’s original stay-at-home orders the state has loosened restrictions on fitness centers, including allowing some outdoor exercising and indoor workouts in San Joaquin County at 10% of capacity.

“A number of restrictions have been lifted,” Mendez said.

“I just don’t see any basis for allowing this lawsuit to go forward in the district court,” he added.

The suit was brought by Sean Covell, owner of Fitness System gyms in Land Park, West Sacramento and Lodi, and argued that the shutdown orders violated the Constitution and were costing his operations huge amounts of revenues and lost memberships.

The lawsuit was one of numerous complaints filed by fitness centers, churches and businesses against orders Newsom and health officials issued to combat the spread of COVID-19.

The lawsuits have largely been unsuccessful, although some are pending and yet another involving gyms in Dixon and Sacramento was filed in federal court in Sacramento on Monday.

Sam Stanton has worked for The Bee since 1991 and has covered a variety of issues, including politics, criminal justice and breaking news.

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health

Curfew enacted in El Paso as county judge says hospitals and ICUs near capacity

Texas Governor Greg Abbott announced Sunday that the state will establish an alternate care site to expand care in El Paso as the region deals with surging COVID-19 cases. El Paso County Judge Ricardo Samaniego on Sunday issued a curfew from 10 p.m. to 5 a.m., saying all El Paso hospitals are filling to capacity.

“We are at a crisis stage,” Samaniego said.

El Paso officials said Sunday there were 517 new cases, as well as 55 delayed testing results reported by the state, for a total of 11,321 active cases in the area. Three additional deaths were reported.

“In less than three weeks we’ve spiked from 259 to 786 COVID-related hospitalizations — a 300% increase. If we continue on this trend, we risk detrimental effects to our entire healthcare system,” said El Paso public health director Angela Mora in a statement on Sunday.  

The new alternate care site will open this week at the El Paso Convention and Performing Arts Center with 50 beds and the ability to expand to 100 beds if needed.

US-TEXAS-HEALTH-VIRUS-ECONOMY
Cars line up for Covid-19 tests at the University of Texas El Paso on October 23, 2020 in El Paso, Texas. 

Photo by Paul Ratje / AFP) (Photo by PAUL RATJE/AFP via Getty Images


The federal Department of Health and Human Services will also be deploying two 35-person disaster teams, Abbott said. The state has already deployed 900 additional medical personnel to El Paso, some of which will staff the auxiliary care site.

“The alternate care site and auxiliary medical units will reduce the strain on hospitals in El Paso as we contain the spread of COVID-19 in the region,” Abbott said.

A report by UT-Austin released Thursday said “the El Paso region has the most threatening projections, with an estimated 85% probability that COVID-19 cases will exceed local hospital capacity by November 8th, 2020.”

According to the same report, five other regions have a more than 25% chance of hospitals being overwhelmed with in 3 weeks: Amarillo (28%), Lubbock (29%), Wichita Falls (30%), San Angelo (29%) and Galveston (33%).

Abbott announced on Saturday that he had requested the use of a medical center at Fort Bliss for non-COVID-19 patients. Officials with the University Medical Center of El Paso said Saturday they are working to coordinate airlifting patients requiring critical care to other hospitals in the state. This will be a strictly voluntary decision by the patients and arrangements will be made to bring all patients home to El Paso, CBS El Paso affiliate KDBC reported.  

COVID-19 cases have been on the rise both throughout Texas and nationwide. On Friday, more cases were reported than any other single day since the pandemic began. 

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health

Wisconsin judge reimposes COVID restrictions as U.S. nursing homes sound alarm

By Rich McKay and Lisa Shumaker

(Reuters) – As Wisconsin battled one of the worst coronavirus surges in the United States, a judge on Monday reinstated an order by the administration of Governor Tony Evers limiting the size of indoor public gatherings at bars, restaurants and other venues.

The Democratic governor’s emergency directive to stem new COVID-19 infections in the state put a 25% capacity limit on the number of people who may gather indoors until Nov. 6. It was challenged in court by bar owners and others shortly after it was issued on Oct. 6, and blocked by a judge on Oct. 14.

Sarah Kleban, 19, a sophomore at the University of Wisconsin-La Crosse who works as a waitress back home in Milwaukee, said she depended on tips from patrons to make ends meet, but still sided with the governor.

“A 25% limit really hurts, but I think we need to put people’s safety first,” Kleban said. “If we have to choose between wages or safety, we have to be safe.”

Wisconsin, one of several battleground states in the Nov. 3 U.S. presidential election, is scrambling to contain a resurgence that officials fear could overwhelm the state’s hospitals.

“This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings,” Evers said in a statement.

A national group representing nursing home administrators on Monday warned that they were starting to see an acceleration in coronavirus infections among their highly vulnerable residents that parallels the increases in the general population.

Nursing homes, which were devastated in the early weeks of the pandemic last spring, could soon experience a third spike in cases, said the American Health Care Association and National Center for Assisted Living.

Wisconsin is one of five states where more than 20% of COVID-19 tests are coming back positive. Local health officials last week warned about “very intense community spread in all age groups” as they announced a string of grim records.

Even so, a field hospital erected at fairgrounds outside Milwaukee to treat COVID-19 patients should local hospitals run out of beds remained empty as of Sunday, according to Wisconsin health authorities.

In New Mexico, the governor warned on Monday that the state’s healthcare resources might not be sufficient if coronavirus cases continue to rise at the current pace.

“If COVID-19 continues to exponentially spread like last week, New Mexico will not have the health care and hospital capacity for every New Mexican who needs care,” Governor Michelle Lujan Grisham, a Democrat, wrote in a tweet.

FALL SURGE

The number of new COVID-19 cases in the United States last week rose 13% to more than 393,000, approaching levels last seen during a summer peak, according to a Reuters analysis.

Graphic: Where U.S. coronavirus cases are rising and falling – https://graphics.reuters.com/HEALTH-CORONAVIRUS/USA-TRENDS/dgkvlgkrkpb/index.html

Thirty-four of 50 states have seen cases increase for at least two weeks in a row, up from 29 the prior week.

They include Pennsylvania, Ohio, Michigan and

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health

Federal judge strikes down Trump rule that could have cut food stamps for nearly 700,000 unemployed Americans

A federal judge Sunday struck down a Trump administration rule that could have stripped food stamps from nearly 700,000 people, saying the US Department of Agriculture has been “icily silent” about how many Americans would have been denied benefits had the changes been in effect during the pandemic.



a person standing in front of a store: A sign alerting customers about SNAP food stamps benefits is displayed at a Brooklyn grocery store on December 5, 2019 in New York City.


© Scott Heins/Getty Images
A sign alerting customers about SNAP food stamps benefits is displayed at a Brooklyn grocery store on December 5, 2019 in New York City.

“The final rule at issue in this litigation radically and abruptly alters decades of regulatory practice, leaving states scrambling and exponentially increasing food insecurity for tens of thousands of Americans,” Chief Judge Beryl Howell of the US District Court in Washington, DC, wrote in a 67-page ruling, saying the agency has not adequately explained how the rule comports with federal statutes nor how it “makes sense.”

A coalition of attorneys general from 19 states, the District of Columbia and the City of New York filed a lawsuit in January, challenging the USDA rule.

The rule, announced in December, would have required more food stamp recipients to work in order to receive benefits by limiting states’ ability to waive existing work mandates. It had been scheduled to take effect on April 1, but Howell in mid-March blocked it from being implemented, and Congress suspended work mandates in the food stamp program as part of a coronavirus relief package that month.

The requirement could have resulted in 688,000 non-disabled, working-age adults without dependents losing their Supplemental Nutrition Assistance Program benefits, or SNAP, as food stamps are formally known, according to Agriculture Department estimates, which were calculated prior to the pandemic. It was expected to save $5.5 billion over five years.

Food stamp enrollment has soared during the outbreak as millions of Americans lost their jobs. More than 6 million people have signed up for benefits, as of May, a 17% increase, according to the ruling.

Nearly 43 million Americans were receiving benefits in April, according to the latest Agriculture Department data.

Hunger has risen amid the economic upheaval wrought by the pandemic. Many lined up at food banks, which distributed more than 1.9 billion meals between March and June, according to Feeding America, a network of 200 food banks and 60,000 food pantries and meal programs.

Some 10% of adults live in households where there was either sometimes or often not enough to eat in the last seven days, according to a Census Bureau survey from mid- to late-September.

In normal times, the food stamp program requires non-disabled, working-age adults without dependents to have jobs. They can only receive benefits for three months out of every 36-month period unless they are working or participating in training programs 20 hours a week. There were 2.9 million of these recipients in 2018 and nearly 74% of them were not employed, according to the agency.

The Agriculture Department did not immediately return a request seeking comment.

States can waive the work requirement for areas where unemployment is at

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health

Miami strip club allowed to defy county’s ‘illegal’ COVID-19 curfew, judge says

A small victory in Miami on Friday could shift the power in favor of businesses who are fighting against local COVID-19 restrictions in South Florida.

Tootsie’s strip club in Miami Gardens won in a civil lawsuit against Miami-Dade County, and will be able to stay open past the county’s coronavirus curfew, which the judge called “illegal.”

The curfew has been in place nearly three months to help curb the spread of the coronavirus. Restaurants were forced to close their dining rooms at midnight, which is when clubs typically open. In a number of cases, establishments such as Tootsie’s that stayed open were fined and forced to shut down at midnight.

The situation has been similar in Broward. Earlier this month, nightclub owners demanded answers from Broward Mayor Dale Holness, who said businesses would still have to shut down at 11 p.m. even after Gov. Ron DeSantis allowed South Florida into a Phase 2 reopening.

In Miami-Dade, Judge Beatrice Butchko ruled that Tootsie’s can operate all night because of DeSantis’ statewide decree, which effectively snatched power from local governments to enforce COVID-19 restrictions on businesses.

DeSantis’ order allowed counties and cities to set capacity limits for restaurants, but kept local governments from issuing rules that kept people from working.

“The Miami-Dade curfew orders conflict with [DeSantis’ executive order] because they prohibit Tootsie’s from operating; they prohibit employees and contractors from working; and they reduce capacity to zero for the entire time subject to the curfew,” Butchko wrote in the ruling.

Sports radio host Andy Slater broke the news that Tootsie’s won the suit.

Miami-Dade and Broward imposed the curfews in July to crack down on late-night parties in bars, streets and in private homes. The curfews also affected restaurants that had to close their dining rooms early.

Sun Sentinel staff writer Rafael Olmeda contributed to this report.

Brooke Baitinger can be reached at: [email protected], 954-422-0857 or Twitter: @bybbaitinger

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©2020 the Sun Sentinel (Fort Lauderdale, Fla.)

Visit the Sun Sentinel (Fort Lauderdale, Fla.) at www.sun-sentinel.com

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