Court filing
Notice of Supplemental Authority — Colectivo Coffee Roasters v. Society Insurance (MDL 2964)
Record facts
| Court | U.S. District Court for the Northern District of Illinois |
|---|---|
| Filed | 2021-02-02 |
Summary
Plaintiffs' Notice of Supplemental Authority and Wisconsin Ruling Denying Motion to Dismiss, filed February 2, 2021 in In re: Society Insurance Co. COVID-19 Business Interruption Protection Insurance Litigation, MDL No. 2964, Master Docket No. 20 C 5965, in the U.S. District Court for the Northern District of Illinois. It reports that on January 29, 2021 a judge of the Circuit Court of Milwaukee County, Wisconsin denied Society Insurance's motion to dismiss in Colectivo Coffee Roasters, Inc. v. Society Insurance, Case No. 2020-CV-002597. The notice states that the court found the policy ambiguous on whether a dangerous condition in the premises triggered coverage, that ambiguity is construed against the insurer, and that factual disputes over direct physical loss were not for a motion to dismiss. The hearing transcript is attached as Exhibit 1, certified February 1, 2021.
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Full text
EXHIBIT A
1
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: SOCIETY INSURANCE CO. COVID-
19 BUSINESS INTERRUPTION
PROTECTION INSURANCE LITIGATION
This Document Relates to All Cases
MDL No. 2964
Master Docket No. 20 C 5965
Judge Edmond E. Chang
Magistrate Judge Jeffrey I. Cummings
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY AND WISCONSIN RULING
DENYING MOTION TO DISMISS IN A SOCIETY INSURANCE COVID-19 BUSINESS
INTERRUPTION CASE
In light of Society’s Notice of Wisconsin Ruling Dismissing Society COVID-19 Business
Interruption Case (Dkt. 103-1), Plaintiffs, through undersigned Plaintiffs’ Co-Lead Counsel,
respectfully submit this Notice of Supplemental Authority and Wisconsin Ruling Denying Motion
to Dismiss in a Society COVID-19 Business Interruption Case regarding a recent Wisconsin state
court ruling. Plaintiffs state as follows:
1.
On January 29, 2021, Judge Laura Gramling Perez of the Circuit Court of Milwaukee
County, Wisconsin, denied Defendant Society Insurance’s Motion to Dismiss the complaint in
Colectivo Coffee Roasters, Inc. v. Society Insurance, Case No. 2020-CV-002597 (transcript attached
as “Exhibit 1”), a case in which the class-representative plaintiffs made many of the same allegations,
including that “Covid created a physical danger in and around the plaintiffs’ premises” (Hr’g Tr. at
42:1-10), that are at issue in the Bellwether Motions in this action and in which Society asserted many
of the same arguments as it does here under its standard-form policy language.
2.
The Colectivo court held that the arguments presented in the Defendant’s Motion to
Dismiss were insufficient to warrant dismissal of plaintiffs’ claims. (Id. at 43:14-17.) Judge Perez first
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rejected Society’s attempt to “conflate[ ]” the term “direct physical loss” with “damage” and found
that the Society policy was ambiguous with respect to whether a “dangerous condition in the
premises” triggered business interruption coverage. (Id. at 37:2-20.) Because such ambiguity must be
construed against the insurer under Wisconsin law, the court held this ambiguity foreclosed a
dismissal based on the contract language alone. (Id. at 37:20-24.)
3.
The Court then emphasized that factual arguments about whether there was direct
physical loss or damage were not appropriate for disposition in a motion to dismiss: “Certainly the
defense raises interesting and very material factual arguments, and those are arguments that I think
are appropriately made at some point in this lawsuit, but it is certainly not the rule of this court at
this point to resolve factual disputes . . .” (Id. at 43:17-22.) Specifically, the Court noted that the
plaintiffs’ complaint in that case, like the Bellwether Motions, included “scientific and factual”
support for the allegations that “Covid was widespread and likely was present in the plaintiffs’
restaurants and the plaintiffs’ premises at the time of the governor’s March 2020 orders.” (Id. at
42:11-17.)
4.
Moreover, Judge Perez noted that the plaintiffs had adequately plead that Governor
Evers’ Executive Orders caused a physical loss of the plaintiff’s property. (Id. at 43:25-44:2.) In a
similar vein to its holding on allegations of direct physical loss, the Court emphasized that questions
of whether the plaintiffs “‘could still continue [their] business unabated and in another manner,’ . . .
again bring factual issues to bear that are not appropriately considered by this Court in connection
with a motion to dismiss.” (Id. at 44:4-10.)
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Dated: February 2, 2021
Respectfully submitted,
/s/ Timothy W. Burns
Timothy W. Burns
BURNS BOWEN BAIR LLP
One South Pinckney Street, Suite 930
Madison, Wisconsin 53703
Telephone: 608-286-2302
tburns@bbblawllp.com
Shelby S. Guilbert, Jr.
KING & SPALDING LLP
1180 Peachtree Street, NE, Suite 1600
Atlanta, Georgia 30309
Telephone: 404-572-4697
sguilbert@kslaw.com
Shannon M. McNulty
CLIFFORD LAW OFFICES, P.C.
120 North LaSalle Street, #3100
Chicago, Illinois 60602
Telephone: 312-899-9090
smm@cliffordlaw.com
Adam J. Levitt
DICELLO LEVITT GUTZLER LLC
Ten North Dearborn Street, Sixth Floor
Chicago, Illinois 60602
Telephone: 312-214-7900
alevitt@dicellolevitt.com
W. Mark Lanier
THE LANIER LAW FIRM PC
10940 West Sam Houston Parkway North
Suite 100
Houston, Texas 77064
Telephone: 713-659-5200
WML@lanierlawfirm.com
Plaintiffs’ Co-Lead Counsel
EXHIBIT 1
STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
-----------------------------------------------------
COLECTIVO COFFEE ROASTERS, INC.,
ET AL.,
Plaintiffs, CASE NO. 2020-CV-002597
vs.
SOCIETY INSURANCE,
A MUTUAL COMPANY,
Defendant.
------------------------------------------------------
MOTION TO DISMISS HEARING
-----------------------------------------------------
BEFORE THE HONORABLE LAURA GRAMLING PEREZ,
CIRCUIT COURT JUDGE
JANUARY 29, 2021
APPEARANCES:
JAY URBAN, Attorney at Law, appeared on behalf of
plaintiffs via Zoom telephone conference.
JANET CAIN AND HEIDI VOGT, Attorneys at Law, appeared on
behalf of the defendant via Zoom telephone conference.
GEORGENE L. LITTLEFAIR
Official Court Reporter
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TRANSCRIPT OF PROCEEDINGS
THE CLERK: Case Number 2020-CV-002597,
Colectivo Coffee Roasters, Inc., et al. versus Society
Insurance, A Mutual Company. Your appearances,
please.
MR. URBAN: Jay Urban of Urban and Taylor
appears for the plaintiffs in this action. It's also an
allegation of a class action.
MS. CAIN: Janet Cain and Heidi Vogt on behalf
of Society Insurance.
THE COURT: Good morning, everybody. We're here
today for a hearing on Society's motion to dismiss the
complaint.
Before we talk about the merits of the motion,
I'll note for the record that we're conducting the
hearing today, perhaps ironically, given the allegations
of the complaint, during a nationwide health emergency as
a result of the Covid-19 Pandemic, and because of orders
that have been entered by the Chief Judge of the First
District Circuit Court, we're not able to safely and
appropriately meet in person in the courthouse in order
to conduct our hearing. Because of that we're conducting
the hearing remotely using the Zoom platform.
All three counsel and I are appearing using both
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a video and an audio feed. Madam clerk, madam court
reporter and my law clerk are participating using only an
audio feed, and there are a number of people connected
with Society who are essentially observing today who are
appearing using either an audio feed or by telephone.
In order to insure that the hearing is open to
the public, we are streaming it live on YouTube.
Mr. Urban, I assume you don't have any objection
to proceeding in this fashion today?
MR. URBAN: No, I follow the rules.
THE COURT: Ms. Cain, I assume you don't either?
MS. CAIN: No, no objection.
THE COURT: All right. Good. So let's talk
about the motion. I have had the opportunity to review
the parties' submissions so you should know I have read
through the briefs. I may have a couple of questions for
both sides as we proceed.
But, Ms. Cain, I guess I'll turn things over to
you. Is there anything you'd like to particularly point
my attention to or emphasize or add to your brief the
arguments in your briefing?
MS. CAIN: Yes, thank you, Judge. As you know,
the plaintiffs are alleging that their business
operations were suspended due to the pandemic and the
government orders limiting their operations to take-out
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and delivery service, and therefore they claim they are
entitled to coverage under the Society policies for their
business income losses.
The policies provide business income and extra
expense coverage when operations are suspended due to,
quote, "direct physical loss of or damage to covered
property," and as I'm sure the Court is aware that's
really the key term that we're here to discuss today.
The plaintiffs claim that the partial temporary
loss of use of their property is direct physical loss of
property and that Covid-19 was, quote, on or around,
unquote, their property, and it was physically damaged by
the presence of Covid-19.
Under Wisconsin law and the cases from a
significant majority of other jurisdictions that have
addressed this term, "physical loss of or damage to
property," the plaintiffs have not sustained either loss
of or damage to their property so as to trigger coverage
under the policies.
As this Court knows, one judge in Wisconsin,
Judge David Weber in Door County, has addressed a similar
situation. He held that a governor's order regulating
the use of property is not a direct physical loss of
property. He thoroughly analyzed the claim of
Al Johnson's, a restaurant in Door County, for business
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income loss when it changed its business operations to
take-out and delivery only due to Governor Evers'
orders. And he said, "The government order is not a
physical loss, and therefore Al Johnson's suspension of
its operations was not caused by a physical loss."
In addition, Judge Weber said that there had
been no physical event at Al Johnson's property that led
to the suspension of its operations such as there was in
the Manpower case, which was cited by the plaintiffs and
which I replied to in our reply brief. In that case the
court found a physical loss did exist because there was a
collapse of the building that the insured's business was
in, and that collapse was a physical event that created a
physical barrier between the insured and its property.
Here, like in the Al Johnson's case, there was
no physical event and no physical barrier between the
plaintiffs and their properties. In fact, they continued
to use their properties throughout the pandemic. The
plaintiffs argue in their brief and I imagine will argue
today that this case is different from Al Johnson's
because Al Johnson's did not make an allegation that
Covid-19 was present on its property, whereas they have
made such an allegation here.
However, the plaintiffs can't rest on
speculative allegations or legal conclusions to survive a
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motion to dismiss. They must allege facts that plausibly
suggest that they're entitled to relief, and their
allegation that Covid-19 was on or around their property
and it has rendered their property unsafe and unfit for
use is nothing more than a speculative allegation and a
legal conclusion.
This Court shouldn't accept that allegation as a
well pleaded fact sufficient to survive a motion to
dismiss. However, even if it could be shown that
Covid-19 was on their premises, it wouldn't be sufficient
to show that Covid-19 caused damage to their
property. The property wasn't damaged or altered in any
way by the virus. They don't say there was a physical
event that affected their property such as in
Manpower. They don't allege that their property is in
need of repair due to a physical change. They don't say
that someone with Covid-19 was ever present on their
property. They don't allege how the virus physically
affected their property at all. They only say it was on
or around the property.
Courts addressing Covid-19 coverage issues in
other jurisdictions have made it clear that the virus
doesn't harm property, and other than a conclusory
allegation that their property was damaged the plaintiffs
do nothing to refute this.
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For example, in the case Uncork & Create, which
was cited in my brief, a case out of West Virginia, the
court stated "The novel Corona virus has no affect on the
physical premises of a business." An Illinois case,
Sandy Point Dental, held that the Corona virus does not
physically alter the appearance, shape, color, structure
or other material dimension of property.
And in Wisconsin the case law interpreting what
physical loss is suggests that without an alteration
there's no physical loss. Judge Weber found those
Wisconsin cases that I've cited in my brief to be
persuasive on what physical loss means. Those cases held
that physical loss means tangible destruction of property
or physical damage to property such as an alteration in
appearance, shape, color or other material dimension.
Even Couchon Insurance, a well known authority, states
that the requirement that the loss be, quote, physical,
closed quote, is widely held to preclude claims when the
insured merely suffers a detrimental economic impact
unaccompanied by a distinct demonstrable alteration of
property. An unfounded allegation that the virus caused
physical property damage or loss cannot be accepted
without support for this proposition, especially in light
of the many cases that it held that it simply doesn't
affect property at all.
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Despite plaintiffs' allegation that their
property was unfit for use, they pointed to absolutely no
damage to or physical change in their property
whatsoever. In fact, they've continued to use their
property to prepare their product and to deliver their
product to customers. Employees continue to work on
their property. Customers and delivery service employees
are collecting orders on their property. The property
hasn't been affected at all. It's in the same condition
today that it was in the day before Governor Evers issued
his order. The only thing that's been affected is how
the plaintiffs can use the property, and that was
affected by a government order, not by any physical
change or intrusion on the property.
Other courts that have addressed complaints that
alleged that the virus was present and that it damaged
property and still denied coverage. For example, in a
recent case in Georgia, Johnson vs. Hartford Financial
Services Group, which is also cited in my brief, the
Northern District of Georgia Federal Court held that even
though the plaintiff alleged there was an infiltration
and proliferation of the virus which caused a physical
loss of or damage to their premises, this wasn't
sufficient to trigger coverage, and the court granted the
insurer's motion to dismiss. The court held that even if
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it considered the mere presence of Covid-19 to be enough
to cause a direct physical loss of or damage to property,
the plaintiff still didn't state a facially plausible
claim. The plaintiff never alleged that Covid-19 was
ever actually on their premises. There was no allegation
of anyone on the premises with the virus. The plaintiffs
just alleged that because of the high number of cases in
Georgia and the ease of person to person transmission it
must have been on their premises. The court said this
was conjecture and speculation, and the plaintiff can't
rely on speculation and conjecture to survive a motion to
dismiss.
The plaintiffs' allegations in this case are
equally speculative, and there's no allegation that
anyone was on their premises at all with the virus at
anytime. This case involves restaurants that had to
temporarily change their operations to take out and
delivery only because the governor ordered them to cease
in-person dining to stop the spread of Covid-19. They
didn't cease to change their operations because there was
physical loss of property or physical damage to their
property. There simply wasn't. The policy requires
direct physical loss of or damage to property that caused
suspension of operations. There's nothing physical about
the governor's orders as Judge Weber and so many other
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courts across the country have recognized. There wasn't
a fire, an earthquake, no collapse that affected the
property that led to the suspension of their operations.
There was simply an order.
Now, the plaintiffs have argued that there can
be loss of property without damage to property. This is
true in some situations, as some courts have found loss
to mean permanent dispossession of property, even without
any damage to the property. Here there was no permanent
disposition. The governor's orders were temporary, not
permanent. Furthermore, the plaintiffs were not
dispossessed of their property at all. They continued to
have access to it. They continued to use it. Their
employees still showed up for work, even when the dining
room was closed to the public. Their property was and
still is in their possession. In fact, nothing prevented
the plaintiffs from using their dining rooms. They just
couldn't use them to serve customers. All that changed
was how their property could be used for a temporary
period of time.
The cases relied on by the plaintiffs that have
found loss of property without physical damage to
property involve some physical force or intrusion that
compromises the property making it uninhabitable or
unusable such as the collapse in Manpower, soot and smoke
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from a wildfire, an accumulation of gasoline that
infiltrated property or rock falls from an unstable
retaining wall, all of which resulted in physical
compromise to property and inability to inhabit the
property. On the contrary, Covid-19 has no effect on the
physical property of plaintiffs' businesses.
Furthermore, unlike those cases, Covid-19 did
not make plaintiffs' property uninhabitable or unfit for
use as I've already stated. They continued to inhabit
the property and to use the property throughout the
pandemic even though the virus was allegedly on or around
the premises.
As one court recently stated, plaintiffs
maintain their inability to use their property
constitutes a direct physical loss. The court does not
agree. Plaintiffs' loss of usability did not result from
an immediate occurrence which tangibly altered or
disturbed their property in some perceptible way. The
order merely temporarily halted plaintiffs' business
operations, and that case is Drama Camp Productions, 2020
West Law, 8018579, out of Alabama, decided on December
30, 2020.
Furthermore, the business income coverage is
triggered when there's a direct physical loss of or
damage to property, which I've explained there wasn't,
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but only for the period of restoration. That period is
defined in the policy as the period of time after direct
physical loss or damage until the date when the property
should be repaired, rebuilt or replaced. Here the
plaintiffs' property did not need repair, rebuilding or
replacement due to the presence of Covid-19, the alleged
presence of Covid-19, or Governor Evers' order. This
provision would make no sense if physical damage did not
occur. A temporary partial loss of use of property, the
loss alleged by the plaintiffs here, is not something
that can be repaired, rebuilt or replaced as those terms
are commonly understood. Judge Weber made specific
reference to this clause in deciding the Al Johnson's
case stating, quote, repaired, rebuilt, replaced. Seems
to me that this means the loss of use without more does
not constitute direct physical loss or damage, closed
quote.
Another court applied common canons of
construction and stated, "If we construe direct physical
loss or damage to require actual harm, it gives effect to
the other provisions of the policy." Considering all
these terms of the policy together, it's clear that there
must be direct physical loss of or damage to plaintiffs'
property which requires repair, rebuilding or replacing
in order to trigger coverage. Loss of use of property
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due to a governor's order is not physical loss of
property, and no property needs to be repaired in order
for the plaintiffs to carry on their operations.
Therefore, under the clear policy language, the business
income and extra expense coverages do not apply.
The plaintiffs also claim they're entitled to
coverage under the civil authority coverage of the
policy. They had merely alleged in their complaint that,
quote, The governor's orders prohibit access to other
venues and businesses in the immediate areas around
plaintiffs' businesses," but do not indicate what those
businesses are, where those businesses are or what type
of physical damage those other businesses have allegedly
sustained. There are multiple requirements to trigger
civil authority coverage and plaintiff doesn't meet any
of them.
First, just as the plaintiffs do not plausibly
allege damage to their own property, they don't plausibly
allege damage to other property. They can only speculate
that Covid-19 was on their own property and can only
speculate it was on other property, and they can't show
that even if it was present it caused any physical damage
at all.
Second, the plaintiffs can't show that any civil
authority prohibited access to their property because of
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damage to other property. They have not alleged the
governor's orders were issued because of damage to any
property, much less property that was in the immediate
area of their property. The orders were issued because
Governor Evers wanted to stop the spread of the virus
among groups of people. It was a ban on mass gatherings
telling people they were safer at home, not that they
couldn't go to restaurants because those restaurants were
physically damaged. Even if there was damage to
neighboring property, plaintiffs have not alleged that
that damage to other property led to an action by civil
authority to prohibit them from accessing their own
property. The orders were not issued in response to
neighboring property that was damaged.
Third, access to the plaintiffs' property was
not prohibited. The order allowed access to the
property. It didn't prohibit access. Limiting access to
a part of the plaintiffs' property for dining service is
not prohibiting access to their property. For these
reasons the civil authority coverage is not applicable.
The plaintiffs also claim they're entitled to
coverage for loss of business income under the
contamination coverage provisions of Society's
policies. Again, there are several requirements to
trigger this coverage which are present here. First and
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most importantly, there was no contamination as that term
is defined in the policy. That term is defined as a
defect, deficiency, inadequacy or dangerous condition in
their products, merchandise or premises. It's illogical
to say that there was a defect, deficiency, inadequacy or
dangerous condition in products that they continued to
produce at property they continued to use on a daily
basis. If the plaintiffs' products were defective,
inadequate or presented a dangerous condition, plaintiffs
couldn't have continued to sell them but they did. If
the plaintiffs' premises were defective where there was a
dangerous condition on the premises, employees, customers
and delivery drivers would certainly not have been
allowed on the premises to prepare food or pick up food,
but they were. The possible speculated presence of
Covid-19 on plaintiffs' premises, which they continued to
use, does not meet the definition of contamination. Even
if it did, however, contamination must result in an
action by a public health or governmental authority to
prohibit access to the premises or production of their
products. That did not happen. There was no prohibition
of access, as I explained, and no prohibition on
production of their products. The governor's orders were
not issued because of contamination. They were issued to
stop the spread of virus among people.
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THE COURT: Ms. Cain, if I could just interrupt
for a moment. Isn't one of the plaintiffs' products
dine-in meal service? Wasn't that a part of the
plaintiffs' product?
MS. CAIN: I don't think that's a part of the
plaintiffs' product. I think that is one of the services
that the plaintiffs --
THE COURT: So isn't it a service that they
provide, then? That's part of their business is
providing full-service dining services. So you seem to
argue that they were able to fully continue to provide
their product or carry on their business, but isn't part
of their business allowing people to come in and sit down
at their tables and order food and drink and stay there
to consume it?
MS. CAIN: That is part of their business. I
can't dispute that that's part of their business, but
they weren't prohibited from operating their
business. They were just told that they had to limit or
restrict the way they operated their business. There
still was no contamination on the premises caused by
Covid-19.
THE COURT: Okay. Let me back up a little bit.
You're using the word "loss" -- the word "damage"
sometimes interchangeably here. There in the policy
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there is coverage for a covered cost of loss. Covered
costs is defined as a direct physical loss. If there is
coverage, and I'm essentially describing my understanding
of the policy, and then I'm going to ask you if I'm
missing something. If coverage, then, a type of loss
that is compensable is direct physical loss of or damage
to covered property. So this language regarding damage
to covered property really isn't language that's
incorporated in the definition of the type of loss that's
covered. It's really a part of the definition of the
damages that are compensable. Do you understand what I'm
getting at? Am I missing something somehow? So there
are kind of two steps. First of all, is there covered
loss? And then the second step, if there is, what is the
insured able to collect for? And my reading of the
policy says that to answer the question of whether
there's a covered loss you look at whether there's a
direct physical loss. If there is, then to answer the
question of what losses, what damages is the insured able
to recover? The answer is they're able to recover their
direct physical loss over damage to covered property. So
there's sort of two different definitions at issue
here. Am I right about that? Do you get what I'm
getting at?
MS. CAIN: I think so. Under the business
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income coverage, they're entitled to recover for the
business income due to suspension of operations caused by
a direct physical loss of or damage to property.
THE COURT: Right. So the first issue is was
the cause of this a direct physical loss?
MS. CAIN: True.
THE COURT: And your argument is essentially
that the plaintiff has not alleged and cannot allege that
they have suffered a direct physical loss, that there's
not a covered cause of loss here?
MS. CAIN: True.
THE COURT: All right. I'd like to -- so our
time is running short, and I do have a remaining calendar
today, and, as I said, I have read the parties'
submissions. So I'd like to give Mr. Urban an
opportunity to respond. I'll give you a chance,
Ms. Cain, on rebuttal briefly, but I'd like to turn
things over to Mr. Urban if I can.
MS. CAIN: Sure. And that's fine because I've
gone through the three types of coverage that they're
alleging they're entitled, and so I think this is a good
time for you to move to Mr. Urban.
THE COURT: Thank you.
Mr. Urban.
MR. URBAN: Thank you, Your Honor. So this
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happens now and then, but what we have here is in the
very early stages of this case a motion to dismiss. A
motion to dismiss is a fatal sanction in a case. It says
not only is the courthouse closed to you, but you don't
even get a chance to describe what your business is. You
don't even get a chance to describe what your losses
are. It's asking you, Your Honor, to put your hand on
the scales of justice and quash it, and they're asking
you to do it, not in this case, in other cases.
So I see this debate all the time of which case
did I bring? Because I'm sitting here looking at
Ms. Cain and I'm sitting here looking at the Society
briefing and I'm sitting here looking at their policy,
and I'm saying to myself, "This ain't my case. These
ain't my clients," because they're not. My clients are
the clients that have a dine-in service only. This
business that they were all engaged in carry-out and they
could instantly flip the switch, I rejected those cases
from time to time. There has to be a situation here
where you cover your losses. I'm actually surprised, and
I know we have some Society people on the telephone
today. I'm actually surprised that Society took such
great lengths to basically corner the market on writing
policies for bars and restaurants to have such little
regard for the various different ways of how bars and
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restaurants work.
I put myself through college and law school
working in bars and restaurants, and what I'm hearing
today has very little to do with the true operations of
those things. For example, we represent bars. You can't
take out drinks from a bar. So when your bar is
closed -- because Covid is everywhere. Covid is in the
air. Covid is worse than smoke. Smoke you can at least
see where it is. Covid is literally every single place,
and even if you don't have Covid, you can still transmit
Covid. And in March of this year, in April of this year,
continuing all the way to this point, we know less than
ten percent about Covid, but we know it is everywhere,
and we know what Society's policy is. We know it doesn't
have an exclusion to Covid. It does not have a virus's
exclusion in its policy. That hasn't even been addressed
or talked about here. So this is an all-risk policy, and
they're trying to reinvent the facts that we pled because
we have pled -- there's two purposes, like you said, of
physical loss. There's direct physical loss and then
there's physical damages. Those are not interchangeable
and we pled both.
If Covid is everywhere, there's lots of ways
that it can be loss. Many of my clients did not go to
their premises. What did they use their open dining
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rooms for? They were supposed to convert their in-house
five-course hopefully someday Michelin star restaurant
into a storage facility? We didn't know back when this
happened what surfaces would do.
Look, Your Honor, look what pains you took in
the Milwaukee County Task Force on Covid to present your
rendered surfaces to antibacterialize, to put up
Plexiglas so much that I've remarked, "It looks like a
hockey rink in there." And these are all of the things
that come out in a case factually. That's not the case
that they're trying to defend against. That's the case
we brought. We've brought the case that the virus is
everywhere. We cited the science in our brief, and
they're trying to make this Court also something that
you're not, Your Honor. Are you the Court of Appeals or
the Supreme Court of Georgia? Are you the U.S. Supreme
Court? There is no case, no case, interpreting the
Society insurance policy. Every single case that they
cited in their thick brief involves a different insurance
policy, a different restaurant, in a different state,
with a different set of laws.
We know what Wisconsin laws require, and that is
any, any, ambiguity in a policy about what physical loss
is or isn't is subject to interpretation. The closest
thing we have is what Judge Edelman ordered in his ruling
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in his case, which wasn't a Society policy. That was an
ISO policy which is really important. The Society could
have adopted ISO forms and had a case exactly like all
those other cases that it cites. It didn't. It chose to
write its own policy.
THE COURT: Mr. Urban, if I could interrupt and
ask you two questions: I'm confused because you're
referring to Judge Edelman. Are you referring to Judge
Weber in the Door County case, or is there a different
case you're referring to that I don't have in mind right
now?
MR. URBAN: On that particular point -- this is
a problem of preparation. We put everything in our heads
and then we spit it out too fast. The Manpower case,
Your Honor, the federal case, where Judge Edelman
addressed the direct physical loss and noted specifically
with that language that it can include loss of use. I
was more or less responding to the question that you
asked Ms. Cain kind of how these things are
different. It sounds like you've already appreciated the
difference in articulation between it's an and/or
proposition to the physical, not just the loss of use.
THE COURT: And can I also ask: So you say that
all of the other cases that have been decided sort of on
this issue related to Covid over the past, I suppose,
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year, nine months, involve other policies. Do any others
involve a Society policy similar to this one?
MR. URBAN: The only case that involves a
Society policy that is this same policy is the
Al Johnson's case, and I'll address that in a moment.
And nobody else has -- Al Johnson's case was about one
business operation that I know because one of the bars
and restaurants that I worked in was in Door County, has
goats on its roof. So just there it's a completely
different business entity. They only asked to analyze
that policy, and their complaint is completely different
than our complaint. We didn't plead the same things that
they pled. Judge Weber in that case, which, again, it's
instructive. It's another circuit court judge that
looked at things. But you're not the Court of Appeals
judge in that case. That judge's job was to apply this
policy to what Al Johnson's alleged, and at the end of
that decision the whole reason for that decision is that
the judge said several times throughout the
hearing. They didn't plead what we pled here, which was
there was contamination of the premises, that there was
loss of use, those kind of things. They didn't plead
that. He asked them to plead it. They didn't amend
their complaint ever.
We analyzed this case and quoted science. The
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closest case that actually we could find about this
situation is the Sentinel Management case that we cite in
the Minnesota Court of Appeals. Again, general
authority, but if you want to look at some general
authority, and it talked about asbestos fibers not
physically altering the business structure, but there was
still a physical loss because of the danger of asbestos
and that it's airborne.
So we're dealing with, just like you said even
before we started the hearing, Your Honor, we're dealing
with some very specific things here, and what Society is
asking you to do is to assume that every single other
policy that they cited in their brief is Society; it's
not, that every single entity is Al Johnson's; they're
not, and our complaint isn't even the same complaint as
Al Johnson's.
Our amended complaint alleges all these things,
and we're only supposed to be looking at the four
corners, and I come into this hearing today in my Zoom,
and I've been to all these restaurants I represent, and
they don't operate in any way that the way Society is
saying that they operate. You even observed yourself
some of them are dine-in, some are other ones. Tandem,
who is the other named plaintiff, for example, also has a
World Central Kitchen component of it, so actually those
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parts of their operations in the pandemic were not
affected. So this is -- these are discussions that we
have at the motion for summary judgment stage. What
we're talking about here is the heavy hand of the courts
saying you're not getting the chance to explore these
cases. At the notice pleading, we pled direct physical
loss. We pled the civil authority. They're just trying
to interpret what that civil authority means. The
governor said, "Stay home." That includes the
restaurateurs. You're to stay safe, stay home, and
they're saying that you can just willy-nilly walk around,
go to your property. I wouldn't do that. You'd have to
have a gun to my head to have me eat at a
restaurant right now. So this just completely is taking
out of context this public health crisis that we've never
been in before. The closest thing we've had is the SARS
virus, where, by the way, a lot of those other policies
cited by Society put virus exclusions in their policy.
Society chose not to. After SARS a whole wave of those
policies came to do that. And now they want to quibble
with what the civil authority means and that you can just
show up to work.
I heard Society argue today that all the
employees just stayed. What? That's baffling to me.
These folks shut down because you have an airborne virus
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that can go anywhere and can affect anything. It can
even transfer it out on me. And you're being asked to
impose the ultimate sanction to say we're not even going
to let the justice system consider what these losses are
and what all these hundreds and thousands of businesses
are throughout the state of Wisconsin based on the
obligations that there is a physical loss under their
individual policy. They're trying to make this case that
case, and so there's five things that they're trying to
do to make you put that hand of justice on you on the
scales.
First, they want you to change or ignore law of
a motion to dismiss which is the four corners of the
complaint and the inferences from that complaint. Notice
pleading. Did we plead the case? Yes. Did we plead
different than Al Johnson's? Yes. We alleged direct
physical loss and damage to the property.
Interpretation of insurance policies also is
well known, and that's an ambiguity taking these things
into consideration. Their policy has not been analyzed
before by the Court of Appeals or the Supreme Court in
this state. You are the de novo person to do that. None
of those other cases are binding because they're not in
Society and the Door County is not binding because it's
not the same case.
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Second, they want you to compare it to that
same case. They want you to say this case is just like
Al Johnson's, and it's not. We both can read the
complaint in that case and the judge said, "If these two
things were pled, I wouldn't be doing this." He even
said, "I think a Court of Appeals might even have to look
at me." It was a skin-of-the-teeth decision. I read it
again this morning. He even said, "Sometimes I have to
make a close call here, but I have to make it on the four
corners of the complaint or the inferences from the
complaint."
Third, they want you to change their policy to
be like these other policies. We can't do that, Your
Honor. Our clients pay good money for these policies,
and they purchased these policies that they had no hand
in drafting that don't have virus exclusions. The
contamination clause is an all-risk policy, and they
defined it as direct physical loss or damage. It's not
an ISO policy.
And then the fourth thing that I already talked
about is what we've already been talking about is they
also want you to change the business's practices, so they
want to embed in their argument that the governor shuts
you down, have everybody show up to work tomorrow and
just start taking out for people. At that point would
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you even order something from a place? We haven't even
gotten into the whole facts of this case of all the food
product that had been spoliated because they had to leave
the process in the property. We don't know at that
point. Do you know what a restaurateur in March was
thinking? Half of my clients closed their properties
before the governor ordered it just because it was
unsafe. If you're told that there's asbestos in your
property and there's fibers in the air, a responsible
business says there's a direct physical loss on my
property here. It's in the air. It's everywhere. If we
knew we could spot it, we wouldn't be in a pandemic
because we could avoid it.
And the fifth thing that they want to do is they
want to change the civil order from the governor and use
that as their heavy hand to kick it out of court to say,
"You can still go to your property. You can still have
all your staff go to your property." Is that really what
we're dealing with here in a pandemic? That we have this
virus that's everywhere. It's airborne. It's
toxic. It's lethal. And we're just supposed to do
business as usual, turn on the spigot, and so all these
arguments that Society is ultimately making that I'm not
going to address here today, but I could, all have to do
with profitability. That's just damages. I think you
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even noted that in your question. Well, if you can't do
dine-in, and could you do dine-in? Could you mitigate
your damages? Could you evolve your restaurant to do
something else?
Right now, for example, there's a bill pending
before the legislature to allow bars to serve cocktails
to go or your restaurants to serve cocktails to go.
Those are damages arguments. Those are damages for a
jury. Those are considerations for summary judgment.
That's after we have discovery. There hasn't been any
discovery in this case. Out of the gate there wasn't
even an answer. It was just denied based on the policy.
Most of these policies were denied within 24 hours of
submitting a claim. There was no investigation.
And so we have a virus, like I said, that is
absolutely everywhere. That is a physical loss. It's a
physical virus. It's airborne and it can't be seen, and
you're being asked to put the heaviest hand on the scales
of justice that there ever is, which is a motion to
dismiss to say you can't even come here and explore all
the allegations that you made based on the facts of this
case and the facts of this policy in the State of
Wisconsin with these laws.
So the closest thing we have is the Edelman
decision, the Manpower decision, that talks about some of
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these issues, but not all of these issues, and that case
allowed the case to go forward because Judge Edelman
ruled that he rejected the ISOP's argument -- ISOP is the
defense insurance policy in that case -- that a peril
must physically damage property. He rejected that. He
said there could also be other types of physical losses
and so forth, including loss of use of the property, and
just because you can go to a property doesn't mean you
can make profit like the year before or even make money
like the year before. I mean, I would imagine that
Society has denied claims before when people tried to
say, "Someone stole my cappuccino machine," and then they
go evaluate the cappuccino machine and your cappuccino
machine was broken. "It wasn't our fault." It's just
like being in a car accident. "Oh, you damaged the
fender of my car." "No, that was preexisting damage.
That damage was there from before." This is a situation
that's different. This has to do with losses arising out
of Covid out of something that's airborne.
So I know that the Court has a calendar and time
is short. I took special attention. I did not want to
read. I think my key did a very nice brief. I thought
their brief was very good, too. It just isn't this case.
And so we, of course, briefed this, but I wanted to just
kind of highlight it for the Court some of the ways that
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this case is pled and how this is really a very important
issue and an issue of very, very first impression for
this Court, and if I were the judge, I would want to have
a lot more information. And I'm not saying we didn't
plead enough because we did. I would be wanting to
consider these issues in the confines of a summary
judgment after there are facts, because right now the
facts that are being stated are the way that you're being
asked to interpret the policies of these facts are not
this policy, and they're not the way that these
businesses operate. Maybe some of them, and maybe those
cases will get rejected down the road. For example, I
don't represent any -- we made some class allegations,
but if somebody has a property that is just a
drive-through -- like the McDonalds drive-through window,
yes, you can eat in the property, but if you can
immediately pivot to being something else, those are
damages arguments, extent of damages arguments.
THE COURT: Thank you, Mr. Urban.
Ms. Cain, anything briefly on rebuttal?
MS. CAIN: Just briefly, Judge. I did refer the
Court several times to the standard on a motion to
dismiss and the Data Key Partners case in Wisconsin is
one we cited in our brief, and it pretty much sets forth
in detail what the Court is looking for on a motion to
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dismiss and what the plaintiff needs to do. And he has
to make well pleaded allegations that establish that he's
entitled to the relief that he's seeking.
Mr. Urban was talking about things that he says
are not in this case. What I can tell you is that many,
many of the decisions cited in my brief and that have
been rendered across this country do interpret the exact
same language as is in the Society policy, that being the
business income coverage language requiring direct
physical loss of or damage to property.
What I heard from Mr. Urban was that the virus
is everywhere, and what I didn't hear from him is how
that causes damage to property or how a government order
causes a loss of property. And I think that it's clear
from Judge Weber's decision that a government order
doesn't constitute a loss of property, and I realize that
Judge Weber is another circuit court judge in Wisconsin,
but he is the only judge thus far who has interpreted
this type of language in a policy. He looked at
Society's policy in great detail, and here we're asking
this Court to look at Society's policy as well as the
allegations they pled in their complaint to see if those
allegations measure up. And based on the fact that the
virus doesn't cause physical damage and the fact that
there was no loss of property in this case the plaintiff
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cannot survive a motion to dismiss.
I just want to speak briefly about Manpower, and
I did talk about it initially, but Mr. Urban claims that
that is the case that this Court should look as most
similar. That case is not similar to this case because
in that case there was a physical event, a collapse that
caused physical damage, and that's why the insured in
that case couldn't use their property. The court
specifically said there was a physical event, a collapse,
that caused a barrier between the plaintiff and his
property. We have nothing like that here.
And, lastly, plaintiff talks about how some of
his clients or maybe even all of his clients did not do
take-out and delivery. He didn't plead anything about
that in his complaint, and we're left with the case that
has Colectivo as a plaintiff, which, as I understand it,
is primarily a coffee and pastry-type business that
clearly could have served customers with take-out and
delivery despite the fact that they may not have been
allowed to have customers dine in at their restaurant.
I think if the Court just looks at the
allegations of the complaint and the language of the
Society policy, it should find, as most other courts have
found, that interpreted similar or exact same language
that there was no physical loss of or damage to property
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and that's fatal to plaintiffs' claim.
Thank you, Judge.
THE COURT: Thank you, Ms. Cain.
I'd like to go off the record for a moment and
talk about how to proceed today. So, madam court
reporter, we're off the record.
(Off the record.)
THE COURT: We're back on the record. First of
all I just want to commend counsel on both sides. I
thought that the briefing and the argument were excellent
on this. This is certainly an interesting and somewhat
novel case, and I thought that both sides have done a
really excellent job of presenting your side.
This is a motion to dismiss, and we're all well
aware of the legal standards on a motion to dismiss.
Ms. Cain references the Data Key Partners case and that
is certainly sort of a leading case on the standard. A
motion to dismiss for failure to state a claim tests the
legal sufficiency of the complaint. Plaintiffs must
allege facts that plausibly suggest that they're entitled
to relief, and that's under Data Key Partners vs. Permira
Advisers, LLC, which is 356 Wis. 2d 665 2014 State
Supreme Court case. I note, however, that in reviewing a
motion to dismiss I'm required to accept as true all well
pleaded facts alleged in the complaint along with all
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reasonable inferences from those facts, and that's under
both Data Key Partners and Kaloti Enterprises, Inc. vs.
Kellogg Sales Company, which is a 2005 State Supreme
Court case, 283 Wis. 2d 555.
I am required to dismiss the claim only if it is
quite clear that under no conditions can the plaintiff
recover. That's under Casteel vs. McCaughtry, 176 Wis.
2d 571, a 1993 State Supreme Court case as well as myriad
other cases, no doubt.
I also consider other important legal
consideration here. The first is that it is a pretty
standard aspect of contract law that any ambiguity in a
contract is to be resolved against the drafter, and in
Wisconsin certainly insurance contracts should be read to
give the broadest possible coverage to the insured,
again, resolving any ambiguities in favor of the insured
and against the insurer who is, in fact, always the
drafter of the policy or at least typically the drafter
of the policy. Here, while I believe the defense raises
a number of very interesting and perhaps ultimately very
fruitful defenses, both in terms of the meaning of the
policy language in this case and the facts surrounding
the Covid-19 Pandemic in Milwaukee and how it affected
the plaintiffs in this case, I do not believe that the
defendants have established what they need to establish
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in order to achieve a dismissal of the case at this
point. I believe it's too early and I believe that the
plaintiff has offered well pled allegations that
certainly resolving any inferences and any ambiguities in
the plaintiffs' favor as I must at this point, are
sufficient to state a claim in this case.
So first let me talk about some of what I see as
the ambiguities in the policy language. On the policy
language applies here only if there is a covered cause of
loss. So there's only coverage if there's a covered
cause of loss, and that is defined in the policy as
direct physical loss. Direct -- and essentially the
defense argues that there's no direct physical loss
that's been pled here, and therefore the plaintiffs' case
must fail at this point. Direct physical loss is not a
term that's defined in the policy. And in this case --
and I don't think it's entirely clear what it means at
this point. Here, defense counsel has both in its
briefing and during today's argument has often conflated
the term "direct physical loss" with "damage." So
essentially asserts that direct physical loss is to be
some kind of physical damage to the property. If you
look, though, elsewhere in the policy, there is a second
sort of definition or separate policy language that
states that the insurer will pay for loss of income, for
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example, that is due to direct physical loss of or damage
to covered property. So elsewhere in the policy there's
a definition or use of the term "direct physical loss"
used as well as the term "damage" to the covered
property. So it would seem that looking at that direct
physical loss must be something other than damage or the
use of the word damage in that policy language would be
surplus language, and one does not construe contract
language so as to allow any of the material language to
be surplus language. So I don't think that it's so clear
that direct physical loss actually requires damage to the
covered property.
I think that other terms in the policy are also
somewhat ambiguous, including the question of what is a
dangerous condition in the premises? That language is
contained in the contamination clause, and an issue that
didn't receive a lot of attention in the briefs and I
think received almost no attention in today's arguments
the meaning of the language contained in the exclusions
in the policy. So I think that there is various
ambiguous language in the policy that under Wisconsin law
is to be construed against the insurer and that I think
forecloses a dismissal today based on that contract
language.
I think that discovery is necessary before sort
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of discovery and perhaps further briefing applying the
particular facts of this case to the policy language are
necessary before the Court makes a decision ultimately as
to whether the policy language applies to the
circumstances here.
In talking about -- speaking of applying the
policy language to the circumstances here, you know, I
think Mr. Urban has sort of put his finger on the issue
here. Each party states a number of cases around the
country, both in connection with Covid-19 and business
losses, both those recent cases and other cases involving
other types of business losses. So the parties have
cited myriad cases from throughout the country holding
that certain types of losses are or are not covered under
certain policy language.
I would say the very fact that there are many
cases coming out in many different respects on these
types of issues illustrates the fact that the legal
issues to be decided here tend to be pretty fact
specific. You tend to look pretty carefully at the
specific policy language and the specific facts, the
specific type of loss and type of damages as a result of
that loss at issue in the case.
I think the fact that there are so many
different cases that each party has been able to find
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from all over the country to try to illustrate its case
simply demonstrates that this is an issue that needs to
be decided on a motion to dismiss, that the issues around
the nature of the policy language here and the particular
facts present here are such that the case is not amenable
to decision on a motion to dismiss.
And I note, in particular, that the parties sort
of differ regarding the upshot of the Manpower case and I
think part of the reason for that difference is that it's
not clear whether this case, the degree to which this
case is like the Manpower case or not like the Manpower
case and what aspects of the holding in Manpower are
really applicable here, and I think it's difficult to
make those decisions without factual discovery and
without an opportunity to develop the facts in this case,
both on the part of the plaintiff and on the defense.
I think that certain case law that's been cited
isn't particularly helpful at this point in the
litigation. For example, the defense cites the Wisconsin
Label Corp. case which basically holds that the word
"physical" has a meaning that it's not surplusage, that
it means physical. And I don't disagree that in the
policy here the word "physical" has meaning, but I don't
believe that the Wisconsin Label Corp. particularly
instructive at this phase in the case regarding what the
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meaning of the term "direct physical loss" is in
connection with this particular insurance policy.
Similarly, I'll note just sort of as an another
example, the defense offers the General Casualty vs.
Rainbow Insulators case which basically said that the
term "physical injury to tangible property is
unambiguous," but that is a different phrase. That's a
different term than the one used in the policy here, so
while the word "physical" used together with "injury to
tangible property" may well be unambiguous in connection
with the policy at issue in the General Casualty Company
case, I don't believe that the holding in that case is
particularly instructive in this one where there's really
entirely different policy language.
You know, and just to remark on the county case.
That's certainly an interesting and not unimportant case
in the context of this one, both because it involves
another policy issued by the defendant in this case and
because it's the only other case that's been decided on
this issue so far in the State of Wisconsin, and I
certainly have all respect for my colleague Judge Weber
in Door County. I don't believe that it is necessarily
clear -- and, first of all, obviously, we all know he's
another circuit court judge. His decision is by no means
binding on me, both because it's not published as circuit
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court decisions in Wisconsin never are, and because he is
not an appellate court that is at a higher level than I
am, but I certainly do take into account the decisions
that my colleagues make. I think that it's important to
consider the analysis and the logic brought to bear by
other people who have looked at these issues. I don't
believe that it's particularly clear that Judge Weber's
analysis applies in this case partly because although the
policy language may be the same, I don't believe the
allegations are necessarily the same. And I will admit
that I have not had the opportunity to go back and pull
out the complaint in that case and sort of parse through
it and compare it to this one, but I think it is likely
that the allegations are different in many respects.
And, in any case, I do, as I've sort of alluded
to you already, I do believe that to make a ruling at
this point, at the motion to dismiss phase, concerning
the meaning of the policy language and the strength, I
should say, of the plaintiffs' allegations in its type of
loss, I think necessarily requires some degree of
resolution of ambiguities, including resolution of
ambiguities in favor of the defense and decision on
certain factual issues, neither of which I think are
appropriate, and I think we would all agree that neither
of which are appropriate on a motion to dismiss.
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So looking at plaintiffs' allegations, I do
think that the plaintiff has included certain well pled
allegations that state a claim in this case. They
include allegations that Covid created the physical loss,
essentially the dining area, that Covid created a
physical danger in and around the plaintiffs' premises,
and the defense essentially argues that these allegations
are speculative, and therefore they are not well pled
allegations that this Court should consider on a motion
to dismiss.
However, the plaintiff includes several pages of
scientific and factual allegation to support that
allegation, that, in fact, Covid was widespread and
likely was present in the plaintiffs' restaurants and the
plaintiffs' premises at the time of the governor's March
2020 orders in this case. And so I don't believe those
allegations are speculative at this time.
And I should note -- and I do want to sort of
note as an aside the defense has cited certain cases from
other states that essentially stand for the proposition
that the presence of microbial or viral contamination
cannot be considered a physical loss. I don't think
those cases are necessarily applicable here. Here Covid
presents or potentially presents a particular type of
harm in that it's not something that's sort of present on
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the surfaces of premises or in the HVAC equipment in
premises can be cleaned and then that's that. It is a
contamination that potentially comes into the dining area
with any given patron of a restaurant or eating
establishment and sort of is newly present potentially
with anybody who comes in and sits down and takes their
mask off and enjoys their meal while perhaps talking with
their friends or family. So at this point I don't think
that we can definitively say that we must follow other
cases that hold that to sort of the presence of microbial
or viral contamination that can be cleaned and dealt with
forecloses a claim for loss to the eating area in this
case, to the dining area.
So I don't believe that the allegations that
there was an actual physical loss, a direct physical loss
of at least a portion of the covered premises, are
speculative at this point. Certainly the defense raises
interesting and very material factual arguments, and
those are arguments that I think are appropriately made
at some point in this lawsuit, but it is certainly not
the rule of this Court at this point to resolve factual
disputes, and so I don't believe that the defendant's
factual arguments are really appropriately taken up at
this point.
I also think that the plaintiff has at least
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potentially alleged that the governor's order caused a
physical loss of its dining areas. The allegation is
that the governor prohibited dining in any restaurants,
and although the defendant essentially says, "Well, that
wasn't really a physical loss of those areas. You could
use those areas for other things. You could still
continue your business unabated and in another manner,"
those again bring factual issues to bear that are not
appropriately considered by this Court in connection with
a motion to dismiss.
Finally, I would note that among other things I
think the plaintiff has appropriately alleged that the
presence of or the potential for Covid in the room
created a dangerous condition that caused the closing of
the dining room. It may have caused the closing of the
dining room on the plaintiff or plaintiffs' own action,
may have caused the closing of the dining room as a
result of the governor's order, but I do think there are
allegations that would bring the contamination clause in
the policy to bear because I think there are allegations
that there was a potential and that there is a potential
for Covid and that that created a dangerous condition in
the premises. I want to make clear that it is not my job
in connection with a motion to dismiss to resolve
conflicting factual or conflicting legal arguments.
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There are arguments that the defense has made that may
well bear fruit down the road in connection with perhaps
limiting a class, perhaps in connection with summary
judgment, and perhaps if the case gets this far in
connection with argument concerning how I should instruct
the jury in connection with these claims, but I do
believe that the complaint contains well pleaded
allegations that if proven true would feasibly allow a
right of recovery for the plaintiffs, and so I will
decline to dismiss the case at this time.
With that, Mr. Urban, would you be so kind as to
submit a proposed order for my signature?
MR. URBAN: Yes, and customarily I just say for
the reasons in the pleadings and the reasons on the
record and I can even share that with Ms. Cain and her
team in advance. I just don't like to quibble.
THE COURT: No, I agree. I would prefer to keep
it simple and state that it's for the reasons stated on
the record. You can either just submit it under the
five-day rule or with a letter saying you've shown it to
defense counsel and they approve as to the form.
So, with that, I think we need to make clear
when the defense will file an answer to the complaint.
Ms. Cain, is ten days enough or would you ask
for more time?
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MS. CAIN: I'd like a little more time than
that, Your Honor. Could we have, say, 21 days?
THE COURT: That's fine. Why don't we say
March 1st, just to give you kind of a round date?
MS. CAIN: That's fine.
THE COURT: Mr. Urban, I assume you'd have no
objection to that?
MR. URBAN: No, not on those kind of things.
And I will say, even in this case, we sort of grant each
other some extensions and so forth so I prefer to
practice that way.
THE COURT: Absolutely. I do want to get us
moving because I do have another case waiting for me, so,
Mr. Urban, if you could include in your proposed order
that the defendant shall file an answer by March 1st that
would be great.
Let's set a scheduling conference in late March,
early April somewhere. And here's where madam clerk is
frantically looking at my calendar trying to figure out
where she can fit something in.
Although, we had that jury trial go away and
perhaps set it that week.
THE CLERK: We can do a scheduling
conference. How is Thursday, March 18th at 9:00 a.m.?
THE COURT: Would that work for everybody?
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MR. URBAN: I have an 8:30 motion by Zoom in
Dane County. I would think it would be over by 9:00.
Can we do 9:30?
THE CLERK: 9:30 a.m.
MS. CAIN: That's fine, too.
THE COURT: You sure that's enough time,
Mr. Urban?
MR. URBAN: You could give me more time. I just
don't know if courts run behind.
THE CLERK: Can we set it at 10:30?
MR. URBAN: That's good.
MS. CAIN: That's fine.
THE COURT: Let's make it 10:30 just so we don't
run the risk of falling behind if Dane County is behind
or there are Zoom issues or it runs long as today's
did. Anything else today?
MR. URBAN: No, nothing from plaintiffs.
MS. CAIN: Nothing from us. Thank you.
THE COURT: Excellent. Thank you, everybody. I
hope you all have a good weekend.
MS. CAIN: Thanks. You, too.
MR. URBAN: Bye.
THE COURT: Bye.
(Proceedings concluded)
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STATE OF WISCONSIN )
) S.S.
COUNTY OF MILWAUKEE )
I, GEORGENE L. LITTLEFAIR, C.S.R., an official
court reporter, in and for the Circuit Court of Milwaukee
County, do hereby certify that the foregoing is a true
and correct transcript of all the proceedings had and
testimony taken in the above-entitled matter as the same
are contained in my original machine shorthand notes on
the said trial or proceeding.
Dated February 1, 2021
Georgene L. Littlefair
(Electronically Signed)
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25File and source
- File
- gov.uscourts.ilnd.392081.124.1.pdf
- Size
- 488,165 bytes
- SHA-256
- 924477dea8241d0bae7dfd543aa6134bc7e4662a837dab5422e4238daad37c21
- Original
- archive.org