Mohegan Tribal Gaming Auth. v. Factory Mut. Ins. Co.

Mohegan Tribal Gaming Auth. v. Factory Mut. Ins. Co.

Opinion

MEMORANDUM OF DECISION RE MOTION TO STRIKE, # 117

Before the court, pursuant to Practice Book § 10-39, is the motion of the defendant, Factory Mutual Insurance Company (FM), to strike the complaint of the plaintiff, the Mohegan Tribal Gaming Authority (the Authority). The complaint seeks damages for breach of an insurance contract, as well as for FM's bad faith in failing to pay for economic loss, occasioned by the closure of the Authority's operations due to the immediately impending presence of coronavirus at its insured property. The following facts and procedural history are relevant to this decision.

The present action was commenced on June 15, 2021, by complaint dated June 9, 2021, which was subsequently amended on November 4, 2021. The amended complaint (complaint) remains the operative complaint. The court accepts the following allegations set forth in the complaint as true.

The Authority is the instrumentality of the Mohegan Tribe of Indians of Connecticut (Mohegan Tribe), a sovereign, federally recognized Indian tribe. The Authority conducts gaming activities for the Mohegan Tribe by ownership and operation of an integrated entertainment resort (Resort) in Uncasville, [*2]  Connecticut, that includes, inter alia, hotels, gaming operations, restaurants, and a convention center. On March 17, 2020, because of the virtually guaranteed risk of the spread of COVID-19¹ from visitors to the Resort, the Authority shut down all its operations at the Resort until March 31, 2020. The cessation of operations was done pursuant to a declaration of the Mohegan Tribe at a time when "there was an immediately impending risk that persons infected with COVID-19 would enter the Resort and that those persons, in turn, would cause the actual presence of communicable disease at the Resort." (Emphasis omitted.) Compl., ¶ 59. The closure was done "[t]o prevent the immediately impending actual presence of communicable disease at the Resort . . . ."² (Emphasis omitted; footnote added.) Id., ¶ 61.

FM sold the Authority a policy of insurance covering the real and personal property of the Authority, in effect from March 1, 2020, through March 2021, that "covers property . . . against ALL RISKS OF PHYSICAL LOSS OR DAMAGE, except as hereinafter excluded . . . ." Id., Ex. C, p. 1. The Policy was attached in full to the complaint, allowing the court to consider its terms in ruling on FM's [*3]  motion to strike. See Dlugokecki v. Vieira, 98 Conn. App. 252, 258 n.3, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006) (for purposes of a motion to strike, a complaint includes all attached exhibits).

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