Dentist’s Virus Suit Returned To State Court Despite Protest

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Law360 (November 9, 2020, 4:50 PM EST) —
A Texas federal judge on Monday sent a dentist’s COVID-19 coverage suit back to state court in a final ruling and closed the case despite protests by Allstate Insurance Co., saying a magistrate judge’s earlier recommendation held up after a period of court review.

U.S. District Judge Fred Biery adopted U.S. Magistrate Judge Richard B. Farrer’s October recommendation to return the case to state court, terminating the suit in federal court and holding that no parties could show the report was “erroneous or contrary to law.”

“We believe the court followed the law, and we are happy with the remand order,” said Shannon Loyd, an attorney representing the dentist. “In Texas, adjusters have liability under the Insurance Code if they fail to conduct a reasonable investigation — which is for a jury to decide.”

In October, Judge Farrer said the case should be remanded back to state court, holding that Allstate failed to show a claims adjuster was wrongly joined and that the suit did not meet the diversity of jurisdiction required in federal court.

Judge Farrer said Orsatti DDS PC, a dental office in Bexar County, Texas, has sufficiently alleged the adjuster failed to conduct a proper investigation of its claim.

Allstate fired back at the magistrate’s judge’s recommendation in late October, saying there was nothing for the claim adjuster to investigate since the dental office did not experience any property damage covered in the policy.

The carrier contended that though the dental office accused adjuster Blessing Sefofo Wonyaku of inadequate claim investigation, there was “no physical evidence” for Wonyaku to consider because Orsatti did not allege COVID-19 was present on its property for the adjuster to inspect.

Allstate claimed the dental practice was trying to increase the complexity of the case by wrongly including Wonyaku, a Texas citizen, to destroy complete diversity of citizenship for the case to stay in federal court.

Last week, in response to the insurer’s October objection against sending the case back to state court, the dental office said the claim adjuster was not wrongly joined and that it “clearly has stated numerous plausible claims for relief against” him.

Orsatti suspended business because of the government pandemic closure orders in March. The office said it lost income and filed a coverage claim with Allstate. The Illinois-based carrier then assigned commercial property adjuster Wonyaku to investigate the claim. Orsatti said the adjuster never asked for any documents or information related to its claim.

Allstate subsequently denied coverage, asserting a virus exclusion and a lack of physical damage to Orsatti’s property. In

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Dentist Says Virus Caused Property Damage In Insurance Suit

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Law360 (November 9, 2020, 4:19 PM EST) —
A Minnesota dental office said more courts across the country have rejected insurers’ bids to dismiss COVID-19 business interruption suits for policies without a virus exclusion, telling a Texas federal judge that it has sufficiently pled physical damage.

Christie Jo Berkseth-Rojas, who runs Rojas Family Dental in Minneapolis, said Friday that a greater number of courts have axed insurers’ dismissal motions in suits involving policies that don’t contain a virus exclusion like the one her office held with Aspen American Insurance Co.

The dentist cited data from the University of Pennsylvania Law School’s virus-related litigation tracker, which listed that courts have denied the insurers’ dismissal bids in 10 cases while granting them in eight cases concerning policies that do not have a virus exclusion. There have been over 1,200 business interruption suits filed so far, according to the school.

In Friday’s response, the dentist said that the “courthouse could no longer serve the administration of justice as it had before,” because grand jury proceedings, public trials and in-person depositions are limited for cases like hers, claiming that her office incurred physical loss of use because of COVID-19 just as courts across the country have.

The Minneapolis dental office hit Aspen with a proposed class action after the carrier denied coverage for her business losses stemming from government closure orders in March. In September, Aspen urged the federal court to follow the “daily growing” number of rulings that have said insureds don’t need to show their property was tangibly altered to claim physical damage.

On Friday, the dental office said it successfully pled physical damage from its lost use of its property. The office said Aspen can’t argue that physical damage always requires structural change, because it never changed coverage requirements from “direct physical loss of or damage” to “physical alteration” or “structural alteration” in the policy.

“The insurance industry has left this language substantively unchanged for decades,” the dental practice said.

Even if direct physical damage means structural alteration, the office has sufficiently claimed it because the virus will “infest property and stick to its surfaces, alter the structure of those surfaces and the air within the property, and lead to claims of business interruption losses,” the practice added.

Additionally, courts have ruled on multiple occasions that property infiltration “by microscopic entities” like COVID-19 constitutes direct physical loss or damage, according to the suit. The practice also cited case law, saying that the Minnesota court of appeals ruled “direct physical loss can exist without actual destruction of property or structural damage to property.”

Aspen’s contention that

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

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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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Woman files $10M suit against dentist after alleged botched procedure

A clarinetist claims she could literally lose face after an allegedly botched procedure by a Manhattan dentist.

Boja Kragulj, who has performed in orchestras in Philadelphia and New York, claims in a $10 million lawsuit that her face could “prematurely age” because of “irreversible” bone loss from the work of Martha Cortes.

Facing the prospect of double jaw surgery after lifelong dental and breathing problems, Kragulj turned to Cortes in 2013 for an alternative. The dentist, who has an office on Central Park South, treated Kragulj unsuccessfully for years before placing a device called an Anterior Growth Guided Appliance, or AGGA, and controlled arch braces, in the musician’s mouth.

The AGGA was supposed to be a substitute for jaw surgery by stimulating new bone growth, helping to move Kragulj’s teeth and jaw forward and improve her airway. Instead, Kragulj claims in court papers, the device left her in worse shape than before.

AGGA is “unproven [and] not supported by medical knowledge or science,” according to the lawsuit.

Now Kragulj could lose four to six front teeth, and, over time “vertical dimension” — the space between her nose and chin — leading to the early aging of her face, she alleges.

Cortes should have known the AGGA wouldn’t work as advertised and failed to immediately repair it when part of it broke, according to Kragulj’s Manhattan Supreme Court lawsuit.

It’s unclear how the dental disaster impacted the musical career of Kragulj, who is suing Cortes along with others.

Cortes did not respond to a message.

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Celeb Dentist Berated His Only Black Worker, Suit Says

Law360 (October 16, 2020, 4:36 PM EDT) — A jet-setting dentist with celebrity clients has been slapped with a race bias suit in New York state court by a Black ex-employee who said he called her “lazy” and “fat” as part of a campaign of harassment that left her no choice but to quit.

The lawsuit, filed Thursday against Dr. Michael Apa and his practice by former dental assistant Meshana Alves, cites alleged violations of New York City and state human rights law and demanded $1.5 million in damages.

“Plaintiff Alves was continuously defamed, harassed and humiliated on a daily basis when defendant Apa was in the New York…

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