Use this button to switch between dark and light mode.

Experience a New Era in Legal Research with Free Access to Lexis+

Ind. Repertory Theatre v. Cincinnati Cas. Co.

Ind. Repertory Theatre v. Cincinnati Cas. Co.

Court of Appeals of Indiana

January 4, 2022, Decided; January 4, 2022, Filed

Court of Appeals Case No. 21A-PL-628

Opinion

 [*404]  May, Judge

P1 The Indiana Repertory Theatre ("IRT")2 appeals the trial court's decision denying IRT's motion for partial summary judgment and granting partial summary judgment for Cincinnati Casualty Company ("Cincinnati Casualty").3 IRT presents multiple issues on appeal, one of which we find dispositive: whether the trial court erred when it determined the contract language "direct physical loss or direct physical damage" did not encompass IRT's claim for loss of use of its facilities during the COVID-19 pandemic. While we sympathize  [*405]  with the plight of IRT as well as other small businesses and not-for-profit entities in similar situations, the plain language of the insurance contract does not support coverage for COVID-19-related loss of use. We affirm.

Facts and Procedural History4

P2 As stated in the record, IRT

is the largest professional nonprofit theatre in Indiana. IRT presents live theatre performance September through May and rents its facilities for other performances and events the rest of the year. IRT employs approximately 65 full-time year-round and seasonal employees in the design and production of theater [**3]  sets, scenes, costumes, lighting and sound effect, in addition to actors, writers, directors and other artists. IRT also welcomes nearly 40,000 school children from across the state to student matinees each season.

(Appellant's App. Vol. II at 62-3.) IRT is located in downtown Indianapolis. At all times relevant to this appeal, IRT had an insurance policy5 ("Policy") with Cincinnati Casualty. The Policy is 379 pages and contains multiple subtypes of coverage, each called a "form." (Appellant's App. Vol. III at 27.)

P3 On March 6, 2020, the first case of COVID-19 was reported in Indiana. The rapid spread of COVID-19 caused federal, state, and local governments to issue a series of executive orders and actions to attempt to contain the transmission of the virus. Indiana Governor Eric Holcomb also issued an Executive Order on March 6, 2020, declaring a public health emergency for the State of Indiana. On March 10, 2020, IRT held a performance of the production Murder on the Orient Express ("The Play") and hosted a pre-show happy hour event. On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic. On March 12, 2020, Indianapolis Mayor Joseph Hogsett [**4]  and the Marion County Health Department ("MCHD") ordered a thirty-day suspension of all non-essential gatherings of more than 250 people. IRT had scheduled performances of The Play on March 12, 13, and 14. After Mayor Hogsett's order, IRT advised patrons that seating would be limited to 250 attendees for each upcoming performance of The Play.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

180 N.E.3d 403 *; 2022 Ind. App. LEXIS 2 **

Indiana Repertory Theatre, Appellant-Plaintiff, v. The Cincinnati Casualty Company and McGowan Insurance Group LLC,1 Appellees-Defendants

Subsequent History: Rehearing denied by Ind. Repertory Theatre, Inc. v. Cincinnati Cas. Co., 2022 Ind. App. LEXIS 108 (Ind. Ct. App., Apr. 5, 2022)

Prior History:  [**1] Appeal from the Marion Superior Court. The Honorable Heather A. Welch, Judge. Trial Court Cause No. 49D01-2004-PL-013137.

CORE TERMS

physical loss, coverage, theatre, physical damage, premises, trial court, pandemic, partial summary judgment, summary judgment, policy language, loss of use, alteration, formatting, insurance policy, accidental, insure, definitions, restoration, provisions, terms

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Motions for Summary Judgment, Cross Motions, Appeals, Summary Judgment Review, Standards of Review, Judgments, Entitlement as Matter of Law, Standards of Review, De Novo Review, Insurance Law, Policy Interpretation, Ambiguous Terms, Construction Against Insurers, Claim, Contract & Practice Issues, Ordinary & Usual Meanings, Exclusions, Unambiguous Terms, Coverage Favored, Question of Law, Governments, Courts, Judicial Precedent, Business Insurance, Commercial General Liability Insurance, Property Claims, Property Insurance, Coverage, Property Damage