Virginia Lawyers Weekly VA Lawyers Weekly
Where a candymaker moved to reconsider the court’s decision dismissing its suit for coverage over Covid-19 business losses, and to certify the question to the Virginia Supreme Court, its motion was denied. It failed to present an intervening change in controlling law, clear error of law or manifest injustice. And there was ample state and federal authority to guide the court’s analysis.
Background
Mars Incorporated sought a declaratory judgment that its properties suffered “physical loss or damage” due to the presence of COVID-19. On Oct. 6, 2022, the court granted defendant’s motion to dismiss. Now before the court is plaintiff’s motion to reconsider and to certify the question of Virginia law to the Virginia Supreme Court.
Reconsider
Plaintiff asserts “[f]ailing to consider certification was a clear error of law warranting relief under Rule 59(e).” Plaintiff emphasizes that this court “should have considered certification instead of opting to adopt the interpretation of the Fourth Circuit from a case applying a different state’s law.”
Additionally, plaintiff criticizes this court for reliance on Fourth Circuit precedent, Uncork & Create LLC v. Cincinnati Ins. Co., 27 F.4th 926 (4th Cir. 2022), because that case relies on West Virginia law. This position seems ironic, as plaintiff asks this court to follow district court cases that rely on Maryland and South Carolina law. Even further, plaintiff offers no assertion that West Virginia and Virginia law differ significantly on the relevant issues.
As an initial matter, the court notes that at no point in plaintiff’s briefing or during oral argument at the Oct. 6, 2022, hearing did plaintiff request that this court certify the posed question to the Virginia Supreme Court. Additionally, plaintiff cites no authority indicating that a court commits a clear error of law when it does not sua sponte certify a question to a state’s highest court.
In support of its assertion of “disagreement among federal courts,” plaintiff cites Elegant Massage, LLC v. State Farm Mut. Auto. Ins. Co., 506 F. Supp. 3d 360 (E.D. Va. 2020) as a case that “more faithfully hews to Virginia principles of insurance policy interpretation.” The court disagrees.
The Fourth Circuit has affirmed decisions in West Virginia, Maryland and North Carolina district courts holding that as a matter of law, the coronavirus does not cause “physical loss or damage.” While those decisions are not binding, the court finds those Fourth Circuit decisions persuasive. Moreover, as stated at the Oct. 6, 2022, hearing, the Virginia Supreme Court had the opportunity to address this issue and declined.
Plaintiff further argues that not certifying the question “was also clear error in light of the significance of this issue to this case and to this state’s policyholders and insurers.” Plaintiff again offers no authority to support this proposition. In sum, plaintiff fails to present an intervening change in controlling law, clear error of law or manifest injustice present in this case.
Certification
Although there is no binding decision of Virginia law that answers the question posed in this case, the court finds that this question does not merit certification to the Virginia Supreme Court. There is ample state and federal authority to guide the court’s analysis, and the court did in fact consider the state-law question extensively.
Plaintiff’s motion to reconsider and certify denied.
Mars Incorporated v. Factory Mutual Insurance Company, Case No. 1:22-cv-626, March 10, 2023. EDVA at Alexandria (Giles). VLW 023-3-121. 8 pp.
