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

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

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

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

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

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

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

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

Accordingly, it is

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

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

Andrew Borrok, J.