COURT. I'M MRIEND FULL OF THE CHIEF JIS CHIS ADMONISHMENT. I WANT TO FOCUS JUST ON TWO
ISSUES, ONE OF WHICH RELATES TO AN EXAMPLE I WANT TO USE TO THE TIME ELEMENT COVERAGE
AND THEN SECOND I VOLUNTEERED TO DO A BIT OF HOUSEKEEPING AND ANSWER THE COURT'S QUESTION
ABOUT A LOCATION WHERE THE CONTAMINANT LANGUAGE APPEARS. CHIEF JUSTICE RABNER:
WE FOUND ONE. LET'S SEE IF WE'RE ON THE SAME PAGE. KEITH MOSKOWITZ: I
WILL NOT HOLD YOU IN SUSPENSE THEN, YOUR HONOR. WE FIND AN EXAMPLE AT D A 98 WHICH IS
SECTION 50217, THE LAND AND WATER CONTAMINANT, CLEANUP, REMOVAL OF DISPOSAL.
I'D LIKE TO GO BACK AND SPEAK BRIEFLY ABOUT. THE ISSUE RELATED TO THE PLEADING AND THE
GOVERNMENT ORDERS. IT'S CLEARLY PLED IN THE COMPLAINT AND THE PANEL WENT THROUGH THE
SECTIONS OF THE COMPLAINT THAT TALK ABOUT THIS, THAT THE CASINO WAS SHUT DOWN, SUSPENDED
OPERATIONS TO COMPLY WITH THE GOVERNMENT ORDER AND IT REOPENED P THE DAY OF THE GOVERNMENT
ORDER WAS LIST LIFTED. AND WHILE THERE WAS A DISCUSSION ABOUT ALLEGATIONS RELATED TO
COVID ON THE PROPERTY AROUND OR ABOUT THE TIME OF THE GOVERNMENT ORDER, THERE WAS NO
CONVERSATION ABOUT A COINCIDENT REASON WHY ANY ALLEGED DIRECT PHYSICAL LOSS OR DAMAGE WAS
ADDRESSED TO ALLOW THE CASINO TO OPEN UP WHEN IT DID PURSUANT TO PARAGRAPH 28 (KAIS CASINO
) THE ONLY AND THE SOLE ALLEGATION IN THE COMPLAINT ABOUT THE REOPENING, THERE IS NO
OTHER ALLEGATION IS FOUND IN PARAGRAPH 28. AND THAT ALLEGATION IS DIRECT, CLEAR AND NOT
SUBJECT TO ANY DID HE BAIT OR DISCUSSION. IT SAYS ON JULY 2ND, 2020, IN COMPLIANCE WITH
THE NEW JERSEY EXECUTIVE ORDER 157, OCEAN CASINO RESORT REOPENED FOR BUSINESS.
SO THERE'S NO A SINGLE OTHER ALLEGATION ANYWHERE IN THE COMPLAINT TO SUGGEST THAT THE CASINO
WAS OPENED, REOPENED FOR ANY OTHER REASON. NOW, IF YOU GO BACK INTO THE
LANGUAGE OF THE POLICY, THERE'S REASON WHY AND THAT'S BECAUSE IF, FOR EXAMPLE, WE LOOK
AT THE TIME ELEMENT COVERAGE WHICH I FIND IN MY CLIENT'S POLICY AT D A-256, IN ORDER FOR THAT
COVERAGE TO APPLY, THERE HAS TO BE A COVERED CAUSE OF LOSS THAT CAUSES THE SUSPENSION
OF THE BUSINESS AND THEN THE EN INSURANCE IS ONLY PAID DURING THE PERIOD OF LIABILITY.
AND THE PERIOD OF LIABILITY IS FOUND ON PAGE D A-26 OF MY CLIEN'S POLICY, THIS IS SECTION
4.03.01.01, AND IT'S THE PERIOD STARTING FROM THE TIME OF PHYSICAL LOSS OR DAMAGE OF THE
TYPE AND INSURED AGAINST AND ENDING WHEN WITH DUE DILIGENCE AND DISPATCH, THE BUILDING
AND EQUIPMENT COULD BE REPAIRED OR REPLACED AND MADE READY FOR OPERATIONS UNDER THE SAME
ORDER EQUIVALENT PHYSICAL AND OPERATING CONDITIONS THAT EXISTED PRIOR TO HE THE DAMAGE.
AND THAT SECTION FTD POLICY TELLS US THAT IN ORDER FOR THERE TO BE
INDEMNIFICATION, THERE MUST BE A PERIOD OF LIABILITY. AND FOR THERE TO BE A PERIOD OF
LIABILITY, WE HAVE TO HAVE A DIRECT PHYSICAL LOSS OR DAMAGE TO PROPERTY THAT CAN EITHER
BE REPAIRED OR REPLACED. AND, VORPS, IT ONLY. (WHEREUPON, AN OFF-THE-RECORD
DISCUSSION TOOK PLACE.) OF COURSE, IT ONLY FOLLOWS THAT THE BUSINESS OPERATIONS WOULD BE
REMOVED FROM THEIR PERIOD OF SUSPENSION WHEN A ROW PAIR OR REPLACEMENT OCCURS. CONSISTENT
WITH 4.03.01.01. HERE, OF THE BUSINESS OPERATIONS ARE NOT ALLEGED TO HAVE
RESUMED AFTER ANY REPAIR OR REPLACEMENT OF PROPERTY. AND INDEED, AS MR. ROTH OUTLINED,
WE CONTEND THERE ARE NO ALLEGATIONS THAT ANY PROPERTY WAS REPAIRED OR REPLACED. THE O
NLY ALLEGATION IN PARAGRAPH 28 GIVES THE ONLY REASON THAT THIS IS RESUMED OPERATION, THE
ONLY ONE. IT WAS SOLELY LIFTING OF GOVERNOR MURPHY'S ORDER, THE NEW EXECUTIVE ORDER THAT
ALLOW THE BUSINESS TO RESUME OPERATIONS. I THINK THAT WELL ILLUSTRATES WHY THIS PLEADING
AS A MATTER OF LAW ACCEPTING THOSE WELL PLED FACTS, INCLUDING SPECIFICALLY PARAGRAPH 28,
CANNOT ESTABLISH A DIRECT PHYSICAL LOSS OR DAMAGE. JUSTICE NORIEGA: BUT
THEY COULDN'T OPEN ANY SOONER THAN THE EN OF THE SKEK CIVILIAN ORDER. SO SENATE POSSIBLE
THAT IF THE CASE WERE TO PROCEED TO TRIAL AND THERE WERE OTHER FACTS ALLEGED IN DISCOVERY
COULD BE DETERMINED THAT REIMMEDIATE YAEGS WAS ACCOMPLISH, MAYBE REMEDIATION KAU ACCOMPLISH
AT THE END OF, MIDDLE OF JUNE, THEY STILL WOULDN'T BE ABLE TO OPEN UNTIL THE EXECUTIVE
ORDER PERMITTED IT. SO WOULDN'T THB A FACT THAT WOULD BE LATER BROUGHT TO BEAR?
KEITH MOSKOWITZ: FIRST OF ALL THIS IS AN EVENT THAT HAS NOW OCCURRED, THERE IS, WE HAVE
A DEFINED ALLEGATION THAT BUSINESS CEASED WHEN THE SKEK TESTIFY ORDER FIRST SKEK CIVILIAN
ORDER WAS ISSUED, IT ENDED WHEN THE SECOND SKEK CIVILIAN ORDER WAS ISSUED. AND SO WE HAVE
THAT DEFINED PERIOD OF TIME. WE DON'T HAVE A SINGLE ALLEGATION IN THIS
COMPLAINT THAT THERE WAS IN FACT ANY REPAIR OR REPLACEMENT OF ANY PROPERTY THAT WAS SUBJECT
TO DIRECT PHYSICAL LOSS OR DAMAGE. AND THAT'S WHY THE PLEADINGS SHOULD NOT SURVIVE A
MOTION TO DISMISS. JUSTICE PATTERSON: WHAT HAPPENS IN A REALLY MORE
TRADITIONAL SETTING OF, I WON'T SAY FLOOD BECAUSE I KNOW THERE ARE ALL KINDS OF RULES THAT
APPLY TO FLOOD, LETS ANY SAY THERE WAS A MINOR FIRE DAMAGE THAT FOR A WHILE IT REQUIRES
EVERYBODY TO BE OUT OF THE BUILDING AND FOR OPERATIONS TO CEASE, BUT IN THE END THERE'S
NOT MUCH DAMAGE AND THEY DECIDE TO FOREDPOE REPAIRING THE PROPERTY OR ROW PLACING SOME
ASPECT OF THE PROPERTY. ARE YOU SAYING THERE'S NO COVERAGE FOR THE LACK OF --
KEITH MOSKOWITZ: NOT AT ALL, I THINK THAT PARTICULAR QUESTION IS ILLUSTRATIVE OF WHAT'S
MISSING HERE MUCH LETS A TAKE THE EXAMPLE OF A FIRE THAT A REST SFRAUPT, ONE OF TWO THINGS
CAN HAPPEN WITH A FIRE IN THE RESTAURANT. I CAN HAVE A FIRE IN THE RESTAURANT THAT CAUSES
DIRECT PHYSICAL LOSS OR DAMAGE. SO, FOR EXAMPLE, I COULD HAVE EQUIPMENT THAT IS BUFRNED,
A WALL THAT IS BUFRNED AND I HAVE, WHY HAVE TO REPAIR OR ROW PLACE THAT PROPERTY, THAT
WOULD BE THE EXPECTATION. THAT'S COVERED PTD THE PROPERTY DAMAGE SEK OF THE POLICY.
NOW, TO GET THE BUSINESS INTERRUPTION COVERAGE, THAT, WHAT HAS TO
HAPPEN IS BECAUSE OF THAT FIRE DAMAGE, BECAUSE OF THE PHYSICAL LOSS OR DAMAGE TO THE
RESTAURANT, THAT THE FIRE SUFFERED, I CAN'T OPEN UP THE RESTAURANT THE NEXT DAY. AND IF
THAT OCCURS, I'M GOING TO BE ENTITLED TO THIS BUSINESS INTERRUPTION OR TIME ELEMENT LOSS
COVERAGE IF I COMMENCE REPAIR OR REPLACEMENT OF THE PROPERTY -- JUSTICE
PATTERSON: WHAT HAPPENS IF, I'M NOT REFERRING TO THE PROPERTY DAMAGE ASPECT OF IT, BUT
LET'S ASSUME IT'S CLOSED, THE RESTAURANT IS CLOSED FOR A WEEK, SMOKE, ETCETERA, BUT WHEN
THE SMOKE CLEARS THIS TIME NOT LITERALLY, BUT LITERALLY RATHER THAN FIGURATIVELY, THERE'S
REALLY NOT A LOT OF DAMAGE, NOTHING NEEDS TO BE REPLACED OR ROW PAIR. SO REPAIRED. SO
NOW THE BUSINESS RESUMES. IF NECESSARY FOR THE INSTHUR HAVE REPAIRED OR ROW PLACED IN ORDER
TO GET THE COVERAGE, BECAUSE IT SEEMS TO ME WHAT YOU'RE SAYING IS THAT IT DOESN'T MAKE
ANY SENSE IN THE COVID SETTING BECAUSE THE END POINT OF THE BUSINESS INTERRUPTION IS THE
MOMENT WHEN IT'S DECLARED TO BE REPAIRED OR ROW PLACED. BUT WHAT IF THERE DOESN'T HAPPEN
TO BE, THERE'S A BUSINESS INTERRUPTION CLAUSE BY PHYSICAL DAMAGE BUT IT DOESN'T NEED TO BE
REPAIRED OR REPLACEMENT RGS DOES THAT MEAN THE BUSINESS INTERRUPTION COVERAGE DOESN'T
APPLY? KEITH MOSKOWITZ: AS YOU EX SPES IT, YES. BUT WE HAVE TO LOOK AT
THIS EXAMPLE IN THE CONTEXT OF THE BUSINESS INTERRUPTION LOSS IT GENERATES OF THE SO IF
I CAN'T OPEN MY RESTAURANT, SO, FIRST OF ALL, IT IS SOMEWHAT DIFFICULT TO CONCEIVE OF
A FIRE THAT CREATES THAT MUCH SMOKE, THE RESTAURANT ACTUALLY SHUT DOWN RS CONSERVE ITS
PATRONS, IN THE ABSENCE OF SOME DAMAGE, I THINK THAT'S THE POE. JUSTICE
PATTERSON: THEORETICALLY. KEITH MOSKOWITZ: WHEN WE GET INTO THIS COVID
WORLD IT BECOMES THESE COMPLETELY HYPOTHETICAL COLLOQUY YOU HAD WITH MY COLLEAGUE ABOUT,
THE YOU'RE GOING TO CLAIM YOU OPENED UP OR YOU CLOSED BECAUSE YOU HAD DAMAGE, YOU OPENED
UP AND THAT. IT'S A PURELY HYPOTHETICAL EVENT. SO IT IS DIFFICULT FOR ME TO CONCEIVE
OF ANY REAL WORLD CIRCUMSTANCE IN WHICH THERE IS A COVERED CAUSE OF LOSS. SO AN EVENT
THAT CAUSES DIRECT PHYSICAL LOSS OR DAMAGE THAT REQUIRES NO REPAIR OR NO REPLACEMENT TO
THE PROPERTY. SO I CAN'T CONCEIVE OF THAT. THE ONLY, THE OHMLY HYPOTHETICAL
ONE MIGHT THING AND OF IS THIS ISSUE OF COMPLETE UNINHABIT ABILITY. DOES THAT RISE TO THE
LEVEL AND CERTAINLY THIS WOULD BE A MINOR NOR ARE THE POSITION NATIONALLY BUT ESPOUSED
BY THE DISTRICT COURT IN GREGORY PACKING, YOU CAN COULD HAVE A CONDITION WHERE IT'S A
COMPLETE UNINHABIT ABILITY OF THE PROPERTY. BUT AGAIN, YOU KNOW, THAT IS A PURELY HYP
OTHETICAL CIRCUMSTANCE THAT WOULD BE IMPLICATED THERE. BUT HERE --
JUSTICE PATTERSON: JUST SO I MAKE SURE I UNDERSTAND YOUR ARGUE PT, YOOR ARGUMENT
SAYING UNDER THE D A 264.0301, THE BUSINESS INTERRUPTION IS IN PART DEFINED BY THE
NECESSITY OF A REPAIR OR REPLACEMENT BECAUSE IT'S, IT'S THE EVENT, THOSE, ONE OF THOSE
TWO EVENTS IS WHAT TRIGGERS THE END OF THE BUSINESS INTERRUPTION? KEITH
MOSKOWITZ: CORRECT. AND THE POINT HERE, JUST BEING VERY SPECIFIC TO THAT ACTUAL PLEADINGS
IN THIS CASE, THEE RET COMPLEE TRY TO PLEAD, WHAT IS ACTUALLY PLED HERE IS THAT THE RE
SUMPTION OF THE BUSINESS WAS CAUSED BY ONE AND ONLY ONE EVENT, AND THAT WAS GOVERNOR MURPHY
ISSUING A NEW EXECUTIVE ORDER THAT ALLOWED ALL DIFFERENT TYPES OF BUSINESSES, NOT JUST
THIS BUSINESS, BUT ALL DIFFERENT TYPES OF BUSINESSES TO REOPEN. AND THAT, AND SO
GOVERNED BY THIS PLEADING, AND IT IS PLED VERY CLEARLY ON THIS POINT, THERE IS NO OTHER
ALLEGATION IN THIS PLEADING, IT IS ONLY ONE, AND THAT'S RESUMPTION ONLY IN COMPLIANCE
WITH THE GOVERNOR'S OR, THERE IS NO OTHER ALLEGATION. OF. JUSTICE
PATTERSON: CAN THERE AND BUSINESS INTERRUPTION COVERAGE WITHOUT A, WITHOUT A LOSS THAT
REQUIRES PHYSICAL DAMAGE COVERAGE? SEE WHAT I MEAN? KEITH MOSKOWITZ: RIGHT.
IN ORDER FOR BUSINESS INTERRUPTION COVERAGE TO ATTACH, THERE NUMBER A DIRECT PHYSICAL
LOSS OR DAMAGE TO THE PROPERTY CAUSE THE BY A NONEXCLUDED, OF COURSE, YOUR ULTIMATELY
EEVEN IF YOU GOT PAST ALL THE TRAPS, WE CONCLUDE IT IS EXCLUDED PARA VIRUS, THERE MUST BE
PURCHASE SOUP TO THE SECTION OF 4.01.01 ON D A-256, THE SUSPENSION MUST BE CAUSED BY
A COVERED CAUSE OF LOSS AT THE LOCATION WHICH IS A CAUSE, A DIRECT PHYSICAL LOSS OF DAMAGE.
AND THEN IN ORDER TO GET PAID, BECAUSE THAT'S THE KEY ELEMENT OF THE COVERAGE OBVIOUSLY
IS TO GET THE INSURANCE BENEFIT, THAT INSURANCE BENEFIT IS ONLY PAID FOR THE PERIOD DURING
THE PERIOD OF LIABILITY. SO THAT'S WHY YOU HAVE TO HAVE A PERIOD OF LIABILITY. AND,
OF COURSE, THAT MAIN SENSE. LET'S SAY, FOR EXAMPLE, I HAVE DAMAGE TO MY
RESTAURANT, SO I HAD A FIRE IN MY BAR, AND I, IT HAPPENED IN JANUARY AND I DIDN'T, AND
I HAD SOME DIRECT PHYSICAL LOSS OR DAMAGE BUT I JUST DECIDED I DON'T LIKE JANUARY IN MUCH
NRNGS I'D RATHER HAVE JANUARY IN FLORIDA, SO I MOVE, FRN THEN I CAME PACK A MONTH LATER
AND SAID I WANT MY BUSINESS INTERRUPTION COVERAGE RNS I OPENED MY BUSINESS BACK UP. NO,
YOU HAVE TO BE ROW PAIRING OR ROW MRAFK THE DAMAGE TO THE PROPERTY. AND THAT MAKES
COMPLETE SENSE, AS A LOGICAL NATURE OF THE CONTRACT, IT'S PAYING AN INSURANCE BENEFIT.
TO ADDRESS A PERIOD OF TIME WHICH DIRECT PHYSICAL LOSS OR DAMAGE HAS OCCUR, BUT ONLY
THAT PERIOD OF TIME. CHIEF JUSTICE RABNER: DOES IT OPENLY APPLY, THE PERIOD
ONLY APPLY WHEN THE REPAIRS ARE MADE OR IS THERE A CUT OFF IF THEY COULD HAVE BEEN MADE
BUT WEREN'T. KEITH MOSKOWITZ: THERE'S A CUTOFF, IF YOUR HONOR LOOKS AT,
IT PROTECTS AGAINST A MALL HAZARD. CHIEF JUSTICE RABNER: BEGS THE NEXT
QUESTION, DOES IT HAVE TO BE PLED, DOES DOES THE END SDAT HAVE TO BE PLED? KEITH
MOSKOWITZ: WHAT HAS TO BE PLED IN ORDER TO IMPLICATE THE COVERAGE IS THAT THERE WAS A
DIRECT PHYSICAL LOSS OR DAMAGE THAT CAUSE THE SUSPENSION OF THE BUSINESS SO WE WOULD ARGUE
HERE THE CAUSE OF THE SUSPENSION OF THE BUSINESS WAS A GOVERNMENT ORDER AND THAT IS NOT
A DIRECT PHYSICAL LOSS OR DAMAGE, BUT EVEN IF YOU PLED A DIRECT PHYSICAL LOSS OR DAMAGE,
YOU MUST FURTHER PLEAD TO GET THIS COVERAGE, FACTS, THAT IF PROVEN AND WE ACCEPT THEM
AS TRUE, WOULD ESTABLISH THE COVERAGE AND THOSE FACTS WOULD HAVE TO BE I HAD A DIRECT
PHYSICAL LOSS OR DAMAGE, I REPAIRED OR ROW PLACED THE PROPERTY OR COULD HAVE REPAIRED
OR REMRAF THE PROPERTY AND, THE LATTER ARGUMENT WOULD BE ANYONE INSURANCE COMPANY ARGUMENT
SAYING YOU SHOULD HAVE DUVEN IT FASTER, BUT WHAT A LIT GAPT, THE POM SEE OWNER WOULD HAVE
TO PLEAD IS EE REPAIRED OR REPLACED MY PRORNTS IT TOOK ME TWO WEEKS, I THEN WEE RESUMED
MY OPERATIONS AND I'M ENTITLED TO 2 WEEKS OF BUSINESS INTERRUPTION INSURANCE. AND THAT,
THOSE SIMPLE PLED FACTS, IF PROVEN, WOULD ESTABLISH THE COVERAGE. JUSTICE
PATTERSON: I SUSPECT ONE ARGUMENT FROM YOUR COLLEAGUES OVER HERE WOULD BE, WELL, WE
DIDN'T JUST REOPEN, WE WENT IN AND FWLAUT A SERVICE TO DEACON TAM 98 THE PROPERTIES, WE
WERE DOING THAT IN ANTICIPATION OF REOPENING AND YES WE REOPENED ON THE DAY YOU COULD BUT
WE ALSO WERE DOING WHAT WE WOULD CONTEND, THIS IS THE ENSURED TALKING, CONSTITUTED A REPAIR,
WE BROUGHT IN PEOPLE TO SCRUB DOWN THE PLACE SO IT WAS AS VIRUS FREE A POSSIBLE.
KEITH MOSKOWITZ: SO WHY ANSWER THAT QUESTION IF 2 PARTS THERE, IS NOT A SINGLE ALLEGATION
IN THIS COMPLAINT TLN IS NOT EVEN AN ABILITY TO READ AN ALLEGATION INTO THE COMPLAINT
THAT ANYTHING OF THAT SORT WAS DONE. IN FACT, TO THE CONTRARY -- JUSTICE
PATTERSON: HYPOTHETICALLY YOU HAD AN AMENDED COMPLAINT THAT SAID THAT. SO WHERE WOULD
THAT LEAVE YOU ON THIS ARGUMENT? KEITH MOSKOWITZ: I WOULD RESPECTFULLY.
JUSTICE PATTERSON: HYPOTHETICAL, I UNDERSTAND. KEITH MOSKOWITZ:
YUFT TO MAKE A POINT OF THE AMENDED COMPLAINT, THAT TYPE OF AMENDED WOULD IN FACT ESPECIALLY
CONTRADICT WHAT HAS ALREADY BEEN PLED SO YOU HAVE THAT PROBLEM TO AGAIN WITH, WE HAVE
TO ASSUME THEY SAY WAS PLED INTO THE CASE -- JUSTICE PATTERSON: HYPE THET
DMREE A DIFFERENT CASE, IF THAT WERE THERE, WHAT WOULD THAT DO, IF ANYTHING, TO THE ARGUMENT
YOU'RE MAKING ABOUT THE RESUMPTION? KEITH MOSKOWITZ: SURE. IF THEY PLED,
SO THAT WOULD HAVE TO START WITH THE PLEADING AS TO WHAT PROPERTY SUFD A PHYSICAL LOSS
OR DAMAGE, GIVE SOME FACTS TO SHOW THIS PROPERTY, THIS PIECE OF PROPERTY, STAND AT THIS
LECTERN, IF THIS LECTERN I EMPHATICALLY MADE A POINT AND I PUNCHED A HOLE IN IT WOULD
SUFFER DIRECT PHYSICAL LOSS OR DAMAGE. AND THEN IF I PLED, I SPENT THE NEXT BALANCE OF
MY TIME REPAIRING IT, THAT WOULD BE A SET OF FACTS THAT WOULD STAY I HAD DIRECT PHYSICAL
LOSS OR DAMAGE, AND THEN I FIXED IT, IF THE COURT COULDN'T OPERATE FOR SOME PERIOD OF TIME,
I APPRECIATE NOW TSHS I'M THROWING PACK AN XUL EQUALLY I AM MRIS ABL HEAP THET CAN YOU TELL,
BUT THE POINT IS YOU START WITH PHYSICAL LOSS OR DAMAGE WHICH DOES NOT EXIST HERE, IF
YOU ALLEGE FACTS AND SO AGAIN, NOT TOO DIFFICULT IS THE PROPERTY INSURANCE POLICY, WHAT
PHYSICALLY WAS ALTERED OR DAMAGED WITH THE CASINO AND THEN WHAT DID THEY DO, SO IF THEY
ESTABLISH THAT FIRST PREDICATE TACT WULED PLEADING RGS THEN THEY WOULD MITIGATING FACTOR
TO WHAT STEPS DID THEY TAKE, IF THEY DID THAT AS WELL, AND WE'RE IN THE ABSENCE OF GOVERNMENT
ORDERS, SURE, I WOULD SUGGEST THAT'S JUST TRACKING THE LANGUAGE OF THE INSHURPS POLICY.
BUT THAT'S NOT IN FACT WHAT THEY'VE PLED AND IN FACT THEY CANNOT PLEAD IT, BECAUSE THEY HAVE
VERY CLEARLY PLED WHY THEY SHUT DOWN, THEY HAVE NOT PLED THAT THEY DID ANYTHING, THEY
DIDN'T DNTS IF I ANY SPECIFIC PART OF THEIR PROPERTY THAT SUFFERED A PHYSICAL LOSS OR
DAMAGE THAT COULD BE REPAIRED OR REPLACED, AND THEY PLEAD NOTHING, OF COURSE, THAT THEY
DID TO ADDRESS THAT. CHIEF JUSTICE RABNER: IF HAD YOU A COMPLAINT THAT
ADEQUATELY PLED PHYSICAL LOSS OR DAMAGE BUT THE OWNERS OF THE PROPERTY DECIDED IT WAS
TIME TO MOVE ON, THEY WEREN'T GOING TO REHAB IT, DID THEY HAVE TO PLEAD IN ORDER TO HAVE
A VIABLE CLAIM, THAT BACK END PIECE, DO THEY HAVE TO PLEAD THAT IT COULD HAVE BEEN REPAIRED
BUT WASN'T REPAIRED? KEITH MOSKOWITZ: YEAH, TO GET THE BUSINESS
INTERRUPTION COVERAGE, I WOULD SAY YES FOR THIS REASON TO, IT'S A CONTRACT CLAIM, THAT
IS THE GRANT OF COVERAGE, UNDER NEW JERSEY LAW THE BURDEN FALLS ON THE POLICYHOLDER TO
PROVE FACTS THAT WOULD BRING THE CLAIM WITHIN THAT COVERAGE AND SO WHAT THE POLICY OLDER
WOULD HAVE TO PLEAD WAS HIGH A HIGH A COVERED CAUSE OF LOSS THAT CAUSED THE SUSPENSION
OF MY BUSINESS AND HIGH I HAD A PERIOD OF LIABILITY BECAUSE IF THEY WANT THE INDIM
OCCASION UNDER THE CONTRACT THEY HAVE TO PLEAD FACTS THAT WOULD SUPPORT THAT ESSENTIAL
TERM OF THE COVERAGE GRAPT WHICH IS THE PERIOD OF LIABILITY. CHIEF JUSTICE RABNER:
IF THEY PLEAD ALL OF THAT WITHOUT THE LAST PART OF THE QUESTION THAT WAS SKOOSHGS HI A
PERIOD WHERE IT WAS UNINHABITABLE, COULD NOT BE REMARD IN THAT SLICE OF TIME.
KEITH MOSKOWITZ: WELL, I THINK THEY'D HAVE TO DEMONSTRATE AT LEAST THE PLEADING YOU
ARTICULATE WHICH IS I AM PLEADING A SET OF FACTS THAT WOULD ESTABLISH I COULD NOT, IF I
UNDERSTAND THE HOOP THET CAN YOU TELL CORRECTLY, I COULD NOT DO IT. NOW FSHS THEY CHOSE
NOT DO IT, I THINK THEY HAVE TO PLEAD THAT SIMPLY BECAUSE THAT FACT, IF KNOWN TO THEM,
THEY HAVE A GOOD-FAITH PLEADING OBLIGATION THAT, WOULD IN FACT DEFEAT THEIR CLAIM. BECAUSE
THEY'RE CHOOSING NOT TO DO IT, AND, WELL, FAKE A STEP BACK, LET ME REFRAME THAT ANSWER
BECAUSE I REALIZED THAT WAS TOO, THAT WAS TOO TRUNG KATSED. THE CONTACT
LICHLTS IN THE PERIOD OF RECOVERY WHEN YOU EITHER REPAIR OR REPLACED OR YOU COULD HAVE.
SO IF THEY PLEAD A DIRECT PHYSICAL LOSS OR DAMAGE AND THEY PLEAD EITHER THAT I TOOK STEPS
TO REPAIR OR REPLACE THE PROPERTY OR I TOOK NO STEPS TO ROW PAIR AND REPLACE THE PROPERTY,
I THINK THAT MATTER COULD BE SUFFICIENT BECAUSE, BUT THE ARGUMENT WOULD BE I JUST FILED
A MOTION TO DISMISS WHICH THEY'D R TO COME BACK ON. I THINK IF THAT ANSWERS YOURS HYP
OTHETICAL. CHIEF JUSTICE RABNER: I'M TRYING TO DETERMINE HOW MUCH WEIGHT
TO GIVE TO YOUR ARGUMENT ABOUT PARAGRAPH 28 AND THAT'S WHY I ASK IF YOU HAVE A CASE WHERE
PLEADING AS TO THE PHYSICAL LOSS, THE FRONT PART IS ADEQUATELY PLED, NO DISPUTE AS TO
THAT, THAT CASE CAN BE DISMISSED ON A MOTION TO DISMISS, IF YOU DON'T ADD AN ALLEGATION
THAT, THEY CHOSE NOT TO, ONCE THEY COULD HAVE COMPLETE THE REPAIRS? KEITH
MOSKOWITZ: YEAH, I THINK THERE HAS TO BE A FACTUAL PLEADING ABOUT WHAT TRANSPIRED AFTER
THE DRESHTH PHYSICAL LOSS OR DAMAGE TO SUPPORT THE POLICYHOLDERS BURR DEVEN OF PLEADING
FACTS WHICH WOULD ESTABLISH COVERAGE UNDER THE TIEMENT ELEMENT PROVISION WHICH REQUIRES
A PERIOD OF LIESHLT. SO SOME FACTS MUST BE PLED THAT WOULD IF, AK SEPTD AS TRUE, ESTABLISH
THAT THE PERIOD OF LIABILITY WAS MET. THE COURT: PROPERTY SUFFERED A PHYSICAL
LOSS OR DAMAGE RS COULDN'T BE REPAIRED FOR A PERIOD OF TWO WEEKS, NO ALLEGATION AS TO
WHEN IT WAS REOPENED, WHY IT WAS REOPENED, WHAT REPAIRS WERE DONE, SUBJECT TO A SUCCESSFUL
MOTION TO DISMISS? KEITH MOSKOWITZ: NO ALLEGATIONS THERE, I WOULD SAY THAT
THAT IS MORE LIKELY NOT THE SUBJECT AVENUE MOETHS TO DISMISS BECAUSE IT COULD BE REPAIR.
BUT I DO THINK, SO IN TWO DISTINGUISHING POINTS HERE, FIRST, THIS IS A CASE THAT WHICH
WE HAVE AN AFFIRMATIVE PLEADING AS TO THE RESUMPTION OF THE OPERATION OF THE BUSINESS,
AND IN THE HYPOTHETICAL THAT I APPRECIATED, NIERS PLEADING AT ALL, ETS A SILENT.
SO I THINK THERE NEEDS TO BE SOME PLEADING THAT SAYS MY OPERATION WAS CLOSED FOR SOME PERIOD
OF TIME, THEY COULD PLEAD AND SAY IT'S STILL CLOSED. IT'S STILL CLOSED.
HERE, THE DIFFERENCE IN THIS PARTICULAR COMPLAINT IS IT'S AFFIRM TELEPHONE AVENUE FIFRM
TIFFLY PLED WHEN OPERATION PGS RESULD P WHY THE OPERATIONS WERE RESUMED. AND THERE IS
NO ALLEGATION THE OPERATIONS WERE RESUMED BECAUSE OF A REPAIR OR REPLACEMENT TO PROPERTY
THAT SUFFERED DIRECT PHYSICAL LOSS OR DAMAGE. CHIEF JUSTICE RABNER: PLEASE
GO AHEAD. KEITH MOSKOWITZ: THAT WRAPS UP THE COMMENTS I WANT TO MAKE UNLESS
THE PANEL HAS 8 QUESTIONS? CHIEF JUSTICE RABNER: THANK YOU COUNSEL. MR.
SOLBERG. BRETT SOLBERG: THANK YOU MACHINE CHIEF JUSTICE, MAY IT PLEASE THE
COURT, YOUR HONOR'SES THE DISADD SLAN TICH SLASH ADVANTAGE IS THERE'S NOT A LOT LEFT TO
SAY. I JUST WANT TO THE MAKE ONE POINT THN IS IN PART TO ANSWER JUSTICE PATTERSON'S LAST
QUESTION ABOUT WHAT IF MR. ORLOFSKY GOT BACK UP AND SAID, WELL, WE COULD AMEND AND WE
COULD PLEAD THAT WE DID EXTENSIVE CLEANING IN BETWEEN GUESTS AND WE CONTINUE TO DO THIS
CLEANING EVEN AFTER WE REOPENED BECAUSE RS OF COURSE, COVID IS STILL PRESENT IN THE SAME
WAY IT WAS PRESENT DURING THE CLOSURE PERIOD, PROBABLY EVEN IN HIGHER QUANTITIES NOW IN
THIS ROOM AND EVERY OTHER SPACE THAT HUMANS OCCUPY. THAT QUESTION HAS BEEN POSED TO
THOUSANDS OF COURTS AROUND THE COUNTRY AND HAS NEVER BEEN ACCEPTED BY ANY SUPREME COURT
AS BEING REPARZ OR REPLACEMENT. AND I WANTED TO READ YOU JUST VERY BRIEFLY
FROM THE NEVADA NEVADA NEVADA SUPREME COURT MOST EVENT HE STAR SURPLUS LINES WHICH IS
2023 WEST LAW 5989929 AND IT'S THE MOST RECENT PRONOUNCEMENT FROM SUPREME COURTS AR ROUVEN
THE COUNTRY ON THIS ISSUE. THEY'RE ADDRESSING IN PARTICULAR AN ARGUE MG THAT YOU SAW
FROM AMICI WHICH IS THE REINTRODUCTION ARGUMENT, THE ARGUE WE CAN CLEAN IT AND THE VIRUS
COMES BACK BECAUSE MORE PEOPLE SNEEZE IN THE ROOM. THEY SAY EVEN THEN THE SHOPS OR THE
INSURED IN THIS CASE REMAIN PHYSICALLY INTACT AND FUNCTIONAL AND THE MROPT IS NEITHER
LOST NOR CHANGED DPU TO THE PRESENCE OF THE VIRUS IN THE INTERIM. AND DEED IF DIRECT
DPIZ CAN YOU TELL LOSS OR DAMP TO THE PROPERTY EXISTED BECAUSE PEOPLE ON OR INSIDE IT
MAY SPREAD ILLNESSES IN SHORT ON THATTING A SCHOOL, HOSPITAL, GYM OR DORMITORY CONVERT
ITS PROPERTY POLICY. STPHAO: IN A MAINTENANCE FOR THE INEVITABLE RIFBLG
ILLNESS IN PUBLIC SYSTEMS, THIS CANNOT BE RIGHT. IP DEED THAT WOULD BE THE
CASE EVERYWHERE IN THE WORLD WITH A HOST OF VIRUSES THAT NOBODY HAS EVER MADE A PROPERTY
INSURANCE CLAIM ON. THE DIFFERENCE HERE IS THE ORDERS. THAT'S THE SOURCE OF THEIR LOSS,
THAT'S THE CAUSE OF THEIR LOSS, AND THAT IS NOT A COVERED LOSS UNDER THIS POLICY.
SO UNLESS THE COURT HAS ANY POLICY I WILL YEED BACK THE REMAINDER OF MY TIME.
CHIEF JUSTICE RABNER: MR. ORLOFSKY, REBUTTAL? STEPHEN M. ORLOFSKY: MR.
CHIEF JUS TISZ, THANK YOU FOR YOUR PATIENCE. I WILL TRY TO BE AS BRIEF AS POSSIBLE, MR.
CHIEF JUSTICE BECAUSE I DO KNOW THAT BREF IS THE HAVE THE IS THE SOUL OF WIT. SO LET ME
RESPOND TO A FEW OF THE POINTS THAT DOWN SELL HAVE RAISED, SOME OF THE QUESTIONS THAT
HAVE BEEN RAISED. JUSTICE WAVEN IN OTHER WORDS APTER RAISED THE QUESTION
OF REGULATORY ESTOPPEL. OF AS I POINTED OUT RS THERE WAS A DISCUSSION, ZURICH DID PRESENT
THIS CLAUSE TO THE LOUISIANA REGULATOR. THE LOUISIANA REGULATOR SAID, NO, YOU CAN'T,
YOU CAN'T EXCLUDE A VIRUS WITH THIS TRADITIONAL ENVIRONMENTAL POLLUTION EXCLUSION CLAUSE,
YOU HAVE TO DO SOMETHING ELSE. IT DID NOT DO THAT IN LOUISIANA. IT'S COINSURED, NATIONAL
FIRE, HAD A MOTION TO DISMISS WHICH WAS GRANTED BY JUDGE STEIN, DID COME UP WITH A SPECIAL
PT VIRUS EX SOLUTION, SO IT COULD BE DONE. MY POINT IN RAISING THIS IS THAT WE HAVE NOT
ANY DISCOVERY, WE DON'T KNOW WHAT ZURICH OR THE OTHER CARRIERS SAID TO THE NEW JERSEY
REGULATORS ABOUT THIS PARTICULAR CLAUSE. BUT THE FACT THAT ONE REGULATOR RACE ARAISED
QUESTION AND SAID YOU COULDN'T DO IT AND SO THEIR KOIN INSURED DECIDED NOT TO RELY ON
IT AND TO ADD A SPECIFIC VIRUS EXCLUSION I THINK SUGGESTS THAT WE SHOULD HAVE AN OPPORTUNITY
TO AMEND AND WE SHOULD HAVE AN OPPORTUNITY TO CONDUCT DISCOVERY. YOU KNOW.
YOU KNOW, IEFSH LISTENING TO THE LEARNED DISSERTATIONS OF COUNSEL ABOUT THE PLEADING
AND I THOUGHT, MY GOD, I'M IN A CIVIL PROCEDURE CLASS. YOU KNOW, YOU DIDN'T PLEAD THIS,
YOU PLEAD THAT, YOU SHOULD HAVE PLEAD GIS, YOU DIDN'T PLEAD THAT, WE WEREN'T GIVEN AN
OPPORTUNITY TO AMEND WHICH IS TRADITIONALLY DONE AND IN FAIRNESS SHOULD BE DONE TO TU
TORE WHATEVER PLEADING DEFICIENCIES THE DEFENSE HAS DOM COME UP WITH, I THINK AETS IMPORTANT
TO, NOT THAT, I THINK IT'S IMPORTANT TO STRESS WHAT THE STANDARD IN PRINTING MART SAID.
AND WHAT THE COURT LASS TO DO. IT SAYS, HOWEVER, REVIEW "SEFRPS THE COMPLAINT IN DEPTH
AND WITH LIBERALITY TO ASCERTAIN WET THE FUND MENLT OF A CAUSE OF ACTION MAY BE CLEANED
FROM AN OB ACCIDENT OCCUR STATEMENT OF CLAIM, OPPORTUNITY BEING GIVEN TO AMEND, IF
NECESSARY. I THINK THAT'S A PRETTY CLEAR COMMAND AND MANDATE THAT THE COURT
THOOS DO A DILIGENT AND THOROUGH SEARCH BEFORE IT GRANTS A MOTION TO DISMISS AND IF IT
FINE THE PLEADING TO BE DEFICIENT, TO GIVE LEAVE TO AMEND. AND THAT CAN BE DONE, OKAY,
MAYBE IT WASN'T A PERFECT PLEADING, BUT WE ARE A NOTES PLEADING INJURES DIKDZ AND WE SHOULDN'T
BE THROWN OUT OF COURT BASED ON A MOTION TO DISMISS WHEN IT SEEMS TO ME LISTENING TO THE
ARGUE PS WHICH LEARNED COULDN'T SELL HAVE MADE COULD EASILY BE CURED ON WITH AN ACHLDED
COMPLAINT. VEN THEN THE CASE COULD BE DECIDED ON THE MERITS. LET ME SAY,
AND I THINK THAT'S IMPORTANT, I THINK THAT'S CRITICAL, I THINK THAT'S PROBABLY THE MOST
CRITICAL QUESTION THE COURT HAS TO CONFRONT. LET ME TALK I WAS LA LITTLE
BIT ABOUT THE EXCLUSION. THE ATE BURDEN OF AVEN EN INSURANCE COMPANY WHEN IT WRITES AN
EXCLUSION TO DRAFT THE EXCLUSION IN A DIRECT AND CONCISE MANNER SUCH THAT ONLY ONE CONCLUSION
CAN BE DRAWN AS TO ITS MEANING. THAT DIDN'T HAPPEN HERE. THE LOUISIANA REGULATOR FOR
ONE, CONCLUDED THAT A VIRUS EXCLUSION SHOULD BE INCLUDED IN THIS PARTICULAR EXCLUSION
CLAUSE. THEIR COINSURED, NATIONAL FIRE, DECIDED IT WASN'T SUFFICIENT AND CAME UP WITH
ITS OWN SPECIFIC VIRUS EXCLUSION AND JUMP WING KEL STEIN, ANOTHER AMERICAN WHO IS ENTITLED
TO SOME CONSIDERATION REVIEWED IT AND SAID NO, YOU CAN'T DO THIS AND BASED ON NAV-ITS,
THESE EXCLUSIONS CAN ARE WRITTEN NARROWLY AND THEN ONLY COVER ENVIRONMENTAL POLLUTION
AND YOU CAN HAVE A VIRUS WITH ENVIRONMENTAL POLLUTION, FOR EXAMPLE, I THINK IT WAS, YOU
KNOW, WE'VE HAD NEEDLES ON THE BEACH IN NEW JERSEY AND MEDICAL WASTE AND SO ON AND SO FORTH.
BUT IF YOU WANT A SPECIFIC VIRUS EXCLUSION, YOU KNOW, AS LOUISIANA REGULATOR SAID, YOU
NEED HAVE A SPECIFIC VIRUS EXCLUSION AND AS NATIONAL FIRE DID COME UP WAY VIRUS EXCLUSION
ON WHICH JUDGE WING KEL STEIN GRANTED THE MOTION TO DISMISS. PARAGRAPH SO, YOU KNOW,
GIVEN ALL OF THESE POINTS, I THINK IT'S FAIR TO SAY THAT AT A MINIMUM, NOT ONLY SHOULD
THE APPELLATE DIVISION BE REVERSED, BUT EVEN IF YOU DON'T WANTS TO GET TO THAT POINT,
WE SHOULD BE GIVEN LEAVE TO AMEND, TO CORRECT WHAT I THINK ARE REALLY TECHNICAL, AT MOST,
AT BEST, TECHNICAL DEFICIENCIES IN THE PLEADING. YOU KNOW, REMEMBER, CORONA VIRUS IS
A VERY NEW PHENOMENON FOR ALL OF US. IF I PLED AMMONIA DID THIS, WE WON'T HAVE THE SAME KIND
OF THING, SO IF I PLED THAT MY BUILDING WAS SO INFUSE THE WITH ASBESTOS THAT I HAD TO CLOSE
THE BUILDING DOWN AND CLEAN IT, AND, YOU KNOW, IN DISCOVERY, WE CAN FLUSH OUT WHAT RE
MEDIATION STEPS THE CASINO TOOK AND WHY THE OPENED AND WHEN IT OPENED. REMEMBER, IT HAD
TO CLOSE AND WE DON'T SAY THAT WE JUST CLOSED IN THE PLEADING, I READ THE PLEADING TO
THE COURT, I DON'T SAY WE JUST CLOSED, WE OPENED AND CLOSED BASED ON THE PLEADING, WE
HAD IN CHOICE WITH THE JUDGE, WE HAD TO CLOSE, WE DO SAY WE HAD TO CLOSE BECAUSE OF THE
PLEADING BUT WE ALSO SAY AS A MUTABLE REASON, WE HAVE TO CLOSE BECAUSE OF THE CORONA VIRUS
AND WE SHOULD BE GIVEN AN OPPORTUNITY TO PROVE THAT POINT FRLT AND IF THE DEFENDANTS
DISPUTE, IF HE THEY WANT TO TAKE THE POSITION THAT WE OPENED AND CLOSED THIS CASINO BASED
SOLELY ON THE GOVERNMENTS ORDERS, THAT HE HAVE ANTS OPPORTUNITY TAKE DISCOVERY AND TAKE
DEPOSITIONS AND PROVE THAT POINT. MY POINT IS THAT SHOULD NOT BE RESOLVED
ON A MOTION TO DISMISS. THAT AT A MINIMUM, WE SHOULD BE GIVEN LEAVE TO AMEND THE COMPLAINT,
THE CASE SHOULD GO, PROCEED THROUGH DISCOVERY AND, YOU KNOW, THE DEFENDANTS CAN TAKE ALL
THE DISCOVERY THEY WANT, THERE WILL BE EXPERT TESTIMONY AND SO AND ON SO FORTH AND THEY CAN
MOVE FOR SUMMARY JUDGMENT AND WE'LL PROBABLE END UP BACK HERE AGAIN BUT INITIALLY I THINK
THE THRESHOLD QUESTION IS, OKAY, POINTING, PRINTING MART IMPOSES A DEMANDING STANDARD
ON THIS COURT. I READ IT TO YOU, IT'S NOT FRIVOLOUS, IT REQUIRES A, YOU KNOW, A VERY
SEARCHING COMPLAINT, SEFRPING EXAMINATION OF THE COMPLAINT BEFORE IT CAN BE DISMISSED.
SO ALSO IN THE COURT HAS ANY QUESTIONS, I'LL THANK IT FOR ITS TIME AND PATIENCE.
CHIEF JUSTICE RABNER: THAUFRJT I THANK YOU TO ALL COUNSEL FOR THE EVIDENT PREPARATION
AND SKILLS THAT WENT INTO THE TODAY ARC MENT THE COURT WILL TAKT UNDER ADVISEMENT,