TINA TURNER MUSICAL LLC v. CHUBB INSURANCE COMPANY OF EUROPE SE (2021)

Supreme Court, New York County, New York.2021-12-06No. Index No. 651607 /2021

Summary · law.co

Holding. The court denied Chubb's motion to dismiss, finding that TTM's losses did not fall within the communicable disease exclusion because they resulted directly from a government mandate rather than from the disease threat itself, and that TTM adequately pleaded its claim for consequential damages.

Tina Turner Musical LLC held an insurance policy with Chubb that covered losses from cancellation, postponement, or interruption of Broadway performances due to covered causes. The policy contained an exclusion for losses stemming from communicable diseases or threats of communicable disease that trigger government quarantine orders, travel restrictions, or warnings. When New York's Governor issued an executive order in March 2020 shutting down theaters with 500 or more seats, TTM sought coverage for its losses. Chubb moved to dismiss the complaint, arguing the theater closure fell within the communicable disease exclusion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Interpretation of communicable disease exclusion in event cancellation insurance
Whether government mandate versus disease threat triggers policy exclusion
Sufficiency of pleading consequential damages in insurance claim

Procedural posture

Chubb moved to dismiss the complaint under CPLR 3211(a)(1) and (a)(7) for failure to state a cause of action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, Chubb Insurance Company of Europe SE (Chubb)s motion to dismiss, pursuant to CPLR 3211(a)(1) and (a)(7) is denied. The Bretton Woods International Insurance Policy No.B1392BWIF191073 (the Insurance Policy; NYSCEF Doc. No. 8), dated 7/10/19, by and between Chubb and Tina Turner Musical LLC (TTM), indemnifies TTM for losses from the necessary cancellation, abandonment, postponement, interruption or relocation of performances of TTMs Broadway show resulting from a cause not otherwise excluded (id., § 1.1). In relevant part, the Insurance Policy excludes

7.21 — any communicable disease or threat or fear of communicable disease (whether actual or perceived) which leads to:

• 7.21.1 — the imposition of quarantine or restriction in movement of people or animals by any national or international body or agency

• 7.21.2 — any travel advisory or warning being issued by a national or international body or agency

(NYSCEF Doc. No. 8, § 7 [emphasis added]).

TTMs losses do not fall within the communicable disease exclusion as stated in the subject Insurance Policy (Metalios v Tower Ins. Co. of NY, 77 AD3d 471, 473 [1st Dept 2010]). They stem from former New York State Governor Andrew Cuomos March 12, 2020 Executive Order 202.1 mandating that “any theater seating five hundred or more attendees for a live performance ․ shall not hold any further performances after 5pm on March 12, 2020” (State of New York Executive Order No. 202.1). TTMs claim for consequential damages was sufficiently pled and do not require allegations of bad faith (Panasia Estates, Inc. v Hudson Ins. Co., 68 AD3d 530, 530 [1st Dept 2009]). Therefore, the motion to dismiss pursuant to CPLR 3211(a)(1) and (a)(7) must be denied in its entirety.

Accordingly, it is

ORDERED that Chubb Insurance Company of Europe SEs motion to dismiss the complaint is denied; and it is further

ORDERED that Chubb Insurance Company of Europe SE is ordered to file an Answer by January 7, 2022.

Andrew Borrok, J.