[00:00:00] Speaker 03:
Still morning.

[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
May it please the court, Michael Levine from Hunting Andrews-Kirth on behalf of appellant Treasure Island.

[00:00:11] Speaker 03:
Your honors, I'd like to reserve three minutes for rebuttal.

[00:00:15] Speaker 03:
We're here today on a contract case, a little bit change of pace.

[00:00:19] Speaker 03:
It's a contract governed by Nevada law, and we asked the court to reverse the dismissal of that case and remand it for trial pursuant to the

[00:00:30] Speaker 03:
approved and signed joint pretrial order that Judge Mahan entered prior to the cases dismissal by Judge Silva.

[00:00:39] Speaker 03:
And we ask that the court exercise its discretion if possible to instruct that the case be assigned to a different judge on remand.

[00:00:49] Speaker 03:
In our briefing, we initially asked that the issue before the court be certified to the Nevada Supreme Court.

[00:00:55] Speaker 03:
That's no longer necessary.

[00:00:58] Speaker 03:
Just last week, the Nevada Supreme Court in the Blumen Brands case, a similar COVID-19 business interruption case, declined to exercise discretion to review a writ taken by the insurance companies in that case, challenging a summary judgment dismissal by the district court.

[00:01:17] Speaker 02:
I think it was a summary judgment denial.

[00:01:20] Speaker 03:
It was a summary judgment denial.

[00:01:22] Speaker 02:
I think you said dismissal.

[00:01:24] Speaker 03:
Sorry.

[00:01:25] Speaker 03:
Denial by the district court.

[00:01:27] Speaker 03:
Insurers challenged it.

[00:01:29] Speaker 03:
Nevada Supreme Court said, no, we're not going to review this.

[00:01:33] Speaker 03:
And why they chose not to review it was important.

[00:01:37] Speaker 03:
They felt that there was no question that needed to be clarified under Nevada law.

[00:01:42] Speaker 03:
Prior to that summary judgment, the Nevada Supreme Court decided the Star Surplus case.

[00:01:48] Speaker 03:
We refer to it as JGB Vegas Star Surplus.

[00:01:51] Speaker 03:
And in that case, the court considered what I will call a standard form

[00:01:56] Speaker 03:
commercial property policy with business interruption coverage, similar to the policies that Your Honor Judge Friedland and Judge Song have looked at in other similar type cases.

[00:02:09] Speaker 03:
I believe the Tao case and the Oregon Clinic case.

[00:02:15] Speaker 03:
This is different.

[00:02:16] Speaker 03:
It's a different type of policy and it's materially different because it includes affirmative coverages for communicable diseases and that's very important.

[00:02:25] Speaker 03:
So the policy that was considered by the Nevada Supreme Court did not include those coverages in the court.

[00:02:30] Speaker 03:
Similar to your honors, analyze that policy according to its plain meaning with all textual clues derived from that policy.

[00:02:38] Speaker 00:
So you might win on the communicable disease provisions, but that's not going to help you very much, right?

[00:02:44] Speaker 00:
Because you can't get very much money under them.

[00:02:46] Speaker 00:
So I understand your argument that that is different and that you might win on that.

[00:02:49] Speaker 00:
Let's just assume that for a second.

[00:02:51] Speaker 00:
I'm really having trouble following why that means you win on the other things.

[00:02:54] Speaker 03:
Right.

[00:02:55] Speaker 03:
And you're right.

[00:02:55] Speaker 03:
We do.

[00:02:56] Speaker 03:
We absolutely should win on that separate issue.

[00:02:59] Speaker 03:
We win on the broader physical loss or damage issue because as the district court recognized in the Blumen Brands case,

[00:03:08] Speaker 03:
The policy must be read as a whole.

[00:03:10] Speaker 03:
And all three of your honors, in other cases and other contexts, have looked at context when interpreting policies, contracts, treaties, statutes, et cetera.

[00:03:22] Speaker 03:
The concept is the same, that we don't look at words in isolation.

[00:03:26] Speaker 03:
Context matters.

[00:03:28] Speaker 03:
And the Nevada Supreme Court has stated this explicitly, and it discussed it in the Star Surplus case, and in that referred back to the Gallardi decision.

[00:03:37] Speaker 03:
And in Ghilardi, the court was very clear that context matters.

[00:03:42] Speaker 03:
And even when terms are not ambiguous, context matters.

[00:03:46] Speaker 02:
So that makes sense.

[00:03:47] Speaker 02:
But I mean, the communicable diseases coverage is an additional coverage that's provided under the contract, correct?

[00:03:55] Speaker 03:
It's an extension of coverage.

[00:03:57] Speaker 03:
So the AFM policy uses both terms.

[00:04:00] Speaker 03:
There are two of these disease coverages.

[00:04:03] Speaker 03:
One's for, it calls it property damage.

[00:04:05] Speaker 03:
The other is for business interruption.

[00:04:07] Speaker 03:
On the property damage side, it calls it an additional coverage.

[00:04:11] Speaker 03:
But when you look at the business interruption coverage in that policy, it clearly calls it an extension.

[00:04:17] Speaker 03:
Coverage is extended.

[00:04:18] Speaker 03:
And this was exactly the issue that was argued for two hours to Judge Williams and Blumen Brands.

[00:04:23] Speaker 03:
And he said very aptly that if you were extending something, what are you extending it from?

[00:04:30] Speaker 00:
But is there any Nevada higher authority that says that the word extended can't be an additional?

[00:04:38] Speaker 03:
I don't believe there's law one way or the other.

[00:04:40] Speaker 00:
We're applying Nevada law.

[00:04:41] Speaker 00:
So we've got to figure out what would Nevada think about this.

[00:04:44] Speaker 00:
And I just, I'm not sure I've found anything that says that what your way of saying that extended must mean it existed over here too, instead of just, this is an additional policy, that there's anything in Nevada law that supports that.

[00:04:57] Speaker 03:
Well, let me, let me look at it this way.

[00:04:59] Speaker 03:
Even if assume it's only additional and extension isn't even in the policy, we still have to give meaning to this in the context of the broader policy.

[00:05:07] Speaker 03:
And even better in this case, unlike Blumenbrand's, we have evidence in this case, and we have a sanctions order in this case, quite frankly, where the insurance company first lied to the court, said we don't have any information that informs of this meeting.

[00:05:23] Speaker 03:
And then when we found it in another case and brought it back to Nevada, they were sanctioned.

[00:05:27] Speaker 03:
And part of that sanction was a preclusion order saying, you are not allowed to argue that a virus like COVID-19

[00:05:35] Speaker 03:
cannot cause physical loss or damage to property.

[00:05:37] Speaker 02:
I think they were not allowed to argue as a categorical manner that communicable disease cannot cause physical loss or damage, correct?

[00:05:45] Speaker 02:
Correct.

[00:05:46] Speaker 03:
Communicable disease as defined in their policy.

[00:05:48] Speaker 02:
They retained the right to argue that the specific disease at issue here, COVID-19, did not cause loss or damage to property.

[00:05:59] Speaker 03:
On the evidentiary level, yes.

[00:06:01] Speaker 02:
And that is the issue that JRB addressed in the context of the language of that policy.

[00:06:07] Speaker 02:
But that is, that was the specific issue addressed by the Nevada Supreme Court, correct?

[00:06:12] Speaker 03:
But only in the context of the JGB policy, which again, didn't inform the broader meaning.

[00:06:18] Speaker 00:
Now we know- But they do talk about this E. coli example in the E. coli case.

[00:06:22] Speaker 00:
And E. coli could be a communicable disease.

[00:06:25] Speaker 00:
And the court says it's different because it's like in the well, in the water, that's part of the physical

[00:06:30] Speaker 03:
Property as opposed to something coming from people from the outside I don't know I'm really struggling with why that wouldn't apply here or E coli doesn't meet the definition of communicable disease in the AFM policy that has a very explicit definition and it has to be a disease transmissible from person to person and

[00:06:47] Speaker 00:
Well, I think E. coli could be, depending on what kind of bodily fluids are helped.

[00:06:53] Speaker 03:
Maybe, but Your Honor is going exactly to where the evidence is.

[00:06:56] Speaker 03:
And four years of litigation before Judge Mahan, the experts have opined on these issues.

[00:07:01] Speaker 03:
So those are factual evidentiary issues that we were going to try.

[00:07:06] Speaker 02:
Are there any facts that were presented that are different from the facts that were described in JGB as to how COVID-19 operates?

[00:07:17] Speaker 03:
So JGB had no facts.

[00:07:19] Speaker 02:
That case... Well, but it described certain aspects of the operation of COVID-19 and said, you know, are there any facts here that

[00:07:31] Speaker 02:
that say, oh, actually they were wrong about how COVID-19 occurred.

[00:07:36] Speaker 03:
Vastly different.

[00:07:36] Speaker 03:
And I say that because we again had a four-year developed record with experts with factual evidence of COVID-19 present.

[00:07:45] Speaker 03:
with the opinions of what it does when it is present and what it takes to remediate.

[00:07:50] Speaker 00:
And so what in JGB was wrong based on what you're saying is in the record here?

[00:07:54] Speaker 03:
It was a different policy.

[00:07:56] Speaker 00:
Okay, but what facts were wrong?

[00:07:57] Speaker 02:
What facts about the impact of COVID-19 on property and its ability to cause loss or damage to property?

[00:08:05] Speaker 02:
Are there any evidence here that they mischaracterized the

[00:08:11] Speaker 02:
specifically the way in which COVID-19 impacts property.

[00:08:17] Speaker 03:
Well, again, they did not have the benefit of a record in JGB.

[00:08:20] Speaker 00:
But they make assumptions like you always do at a motion to dismiss.

[00:08:22] Speaker 00:
So they are assuming various things based on the pleadings about the facts.

[00:08:27] Speaker 00:
What facts did they assume in JGB are disproved by your record?

[00:08:32] Speaker 00:
or even brought into question by your record.

[00:08:34] Speaker 03:
Yeah, and I apologize.

[00:08:36] Speaker 03:
I'm struggling because, again, motion to dismiss and allegations versus motion for summary judgment and evidence.

[00:08:43] Speaker 03:
And the evidence in our case lines perfectly with the policy in this case.

[00:08:50] Speaker 03:
So I'm having a hard time drawing an analogy.

[00:08:53] Speaker 03:
I don't see any similarities, in my mind, looking at different policy, evidence versus naked allegations.

[00:09:02] Speaker 03:
They just don't align.

[00:09:04] Speaker 03:
So I think this case has to be assessed on its own merits, which is a different insurance policy.

[00:09:10] Speaker 03:
Information from the insurance company that specifically says, in their words, predating COVID by years, that a communicable disease, as they use it in their insurance policy, contemplates physical loss or damage caused by that disease.

[00:09:25] Speaker 03:
That's their wording.

[00:09:27] Speaker 03:
That's how they train their insurance adjusters.

[00:09:31] Speaker 03:
And all of that, again, for years preceded COVID-19.

[00:09:34] Speaker 03:
So then COVID-19 comes along, and all of a sudden they say, no, I can't do that.

[00:09:39] Speaker 00:
Can I bring you back to something you said right at the beginning?

[00:09:41] Speaker 00:
I was looking at your briefs.

[00:09:41] Speaker 00:
So when you got up, your first statement was, if we remanded, it should go to a different judge.

[00:09:46] Speaker 00:
Am I right?

[00:09:47] Speaker 00:
That's not in your briefs?

[00:09:49] Speaker 03:
It's not in our briefs, Your Honor.

[00:09:50] Speaker 03:
And I ask it because, and this gets to the very peculiar circumstances that brings us here today.

[00:09:57] Speaker 03:
So this case was

[00:09:59] Speaker 03:
Four years in the making, right?

[00:10:00] Speaker 00:
I understand why you are unhappy that the new judge did something different than the old judge.

[00:10:04] Speaker 00:
But asking for a different judge is a pretty aggressive thing to do, because it would mean that you think there's some bias or some problem with the second judge.

[00:10:11] Speaker 00:
And do you have any evidence of that?

[00:10:13] Speaker 03:
I do not, and I don't know what happened.

[00:10:15] Speaker 03:
I wish I did, but it's very odd.

[00:10:18] Speaker 03:
And I say this for several very specific reasons.

[00:10:22] Speaker 03:
If you look at what Judge Silva did in dismissing the case,

[00:10:28] Speaker 03:
to me that she didn't consider anything in the record because if she did.

[00:10:33] Speaker 00:
It seems like JGB was the new thing that had happened.

[00:10:38] Speaker 03:
But it wasn't new.

[00:10:39] Speaker 03:
It was six months prior.

[00:10:40] Speaker 03:
That decision was handed down in September of 2023 and Judge Mahan denied summary judgment to AFM in March of 2024.

[00:10:53] Speaker 03:
So there was nothing new and in fact

[00:10:55] Speaker 03:
both sides put the JGB decision in front of Judge Mahan as supplemental authority.

[00:11:00] Speaker 03:
He was keenly aware of that decision and chose not to follow it for the reasons that we've articulated in the brief that I'm explaining today.

[00:11:09] Speaker 03:
It is a different policy and it is not controlled.

[00:11:13] Speaker 03:
Judge Williams, in the Blumenbrand's case, did exactly the same thing.

[00:11:18] Speaker 03:
The insurance company said JGB controls.

[00:11:21] Speaker 03:
He listened to the argument and he was

[00:11:23] Speaker 03:
issued a very well-reasoned decision and said, no, it doesn't.

[00:11:26] Speaker 02:
There was a motion for reconsideration that Judge Silva had to address, right?

[00:11:31] Speaker 02:
And the proper scope of that, I know that there are issues that, and we may talk about some of them with your colleague, but there was a motion for reconsideration that had to be addressed upon reassignment.

[00:11:45] Speaker 02:
Presumably in doing so, whether it had already been thought the first time around, obviously the judge

[00:11:52] Speaker 02:
saw JGB and thought, you know, had thoughts about it.

[00:11:56] Speaker 02:
And I know, you know, whether or not that was appropriate, that's not really an issue that's reviewable on appeal, correct?

[00:12:03] Speaker 03:
Right.

[00:12:04] Speaker 03:
So the decision, yes, there was a motion for reconsideration and Judge Mahan chose not to act on it and in fact instead considered and signed the party's joint pretrial order and sent cases going to trial.

[00:12:18] Speaker 03:
And it was then Judge Silva who took that motion.

[00:12:21] Speaker 03:
that it didn't get due consideration because that motion, in that motion, AFM did not even ask that the court do anything about the communicable disease portion of the claim, yet she dismissed it anyway, right?

[00:12:35] Speaker 03:
So it did not get due deference.

[00:12:37] Speaker 03:
It didn't get any deference.

[00:12:38] Speaker 00:
Am I, maybe I'm misremembering, but am I remembering right that the first summary judgment order did not talk about JGB?

[00:12:47] Speaker 03:
It does not mention it explicitly.

[00:12:49] Speaker 00:
And that's why there was reconsideration motion.

[00:12:51] Speaker 03:
That was their argument, right?

[00:12:55] Speaker 03:
But again, prior to Judge Mahan's decision, both sides submitted, we submitted a notice of supplemental authority.

[00:13:03] Speaker 03:
The insurance company opposed it, oddly.

[00:13:05] Speaker 00:
I don't know why, because they now say- But that was, sorry, was the supplemental authority after, I'm not remembering, after the Supreme Court or before?

[00:13:13] Speaker 00:
It was before, right?

[00:13:14] Speaker 03:
It was before Judge Mahan's decision.

[00:13:16] Speaker 00:
Right.

[00:13:17] Speaker 00:
But was the notion motion of for supplemental authority when there was already a Nevada Supreme Court opinion?

[00:13:22] Speaker 03:
Yes, it was it was submitting the Nevada Supreme Court opinion.

[00:13:25] Speaker 03:
So Judge Mahan squarely had it in front of him, both in our filing and possible that it somehow was overlooked because it wasn't mentioned.

[00:13:33] Speaker 03:
He didn't mention it.

[00:13:34] Speaker 03:
I don't know.

[00:13:35] Speaker 03:
He didn't have arguments.

[00:13:36] Speaker 03:
I don't know what the thinking was.

[00:13:38] Speaker 03:
But for Judge Silva to then in her decision, right, the district court failed to consider it.

[00:13:45] Speaker 03:
I don't think Judge Sylvan knows any more than I know how and whether Judge Mahon considered it.

[00:13:50] Speaker 03:
So again, very strange.

[00:13:54] Speaker 02:
Well, one would say that especially in a context without oral argument that the best evidence of what a district court judge has considered is the written opinion that they offer to the parties resolving the issue, correct?

[00:14:06] Speaker 03:
No, I don't agree because there are many things we put in front of courts that don't get mentioned

[00:14:11] Speaker 03:
the decisions, and that does not mean, and I would never presume that the court didn't consider it.

[00:14:16] Speaker 03:
In fact, it's the opposite.

[00:14:18] Speaker 03:
I assume the court considered everything that was put in front of it.

[00:14:22] Speaker 03:
It may not like it and it may not mention it, but that's a different issue.

[00:14:26] Speaker 03:
So again, brings us back to, and I see I've already blown through my time almost, different insurance policy that is informed by the context of that policy.

[00:14:37] Speaker 03:
And if we follow, again, the decisions that your honors have rendered in other cases repeatedly on context, look at what loss code 60 says from the insurance companies on files.

[00:14:50] Speaker 03:
It clearly says, explicitly, physical loss or damage caused by a communicable disease.

[00:14:55] Speaker 03:
If they wrote that years before, how on earth can they argue

[00:14:59] Speaker 03:
that it doesn't happen and can't happen.

[00:15:02] Speaker 03:
We know it can.

[00:15:03] Speaker 03:
It's an evidentiary question for the experts.

[00:15:05] Speaker 00:
I think I better cut you off.

[00:15:06] Speaker 00:
I'll give you a minute for rebuttal, but if you want that, you should stop now.

[00:15:08] Speaker 03:
Yes, thank you.

[00:15:22] Speaker 01:
May it please the court, Scott Johnson.

[00:15:24] Speaker 01:
representing affiliated FM insurance company or AFM for short.

[00:15:29] Speaker 01:
This court should affirm the judgment below because the district court correctly determined that there's no insurance coverage for Treasure Island's claimed losses.

[00:15:40] Speaker 01:
I'd like to address, start by addressing this context argument.

[00:15:44] Speaker 01:
Context is talking about other language in the policy.

[00:15:48] Speaker 01:
And the only language that they point to is the communicable disease provisions.

[00:15:53] Speaker 01:
and the communicable disease provisions do not require physical loss or damage.

[00:15:57] Speaker 01:
So it cannot possibly broaden the scope of physical loss or damage that the court in JGB considered did not include anything caused by COVID-19.

[00:16:07] Speaker 01:
COVID-19, according to the JGB court, does not cause or constitute physical loss or damage.

[00:16:16] Speaker 01:
The Bluing Brands case is,

[00:16:19] Speaker 01:
different factually.

[00:16:20] Speaker 01:
It's also a trial court decision.

[00:16:22] Speaker 01:
And the Supreme Court denied it on procedural grounds.

[00:16:26] Speaker 01:
There was no important rule of law that would impact other cases.

[00:16:32] Speaker 01:
They said if there's going to be an issue on, I mean, a challenge to the legal issues, they can address them on appeal.

[00:16:37] Speaker 01:
And that's what will probably happen.

[00:16:39] Speaker 01:
But it can't be read as saying that the communicable disease coverages were somehow already existent under the AFM policy.

[00:16:48] Speaker 01:
They're not.

[00:16:49] Speaker 01:
The property damage provision is an additional coverage.

[00:16:53] Speaker 01:
If it's an additional coverage, it clearly cannot be part of the original coverage under the policy.

[00:17:01] Speaker 01:
In the business interruption communicable disease provision, it is an extension, but it is providing business interruption coverage that did not otherwise exist under the policy.

[00:17:11] Speaker 01:
It's very clear if you look at the other types of extensions that the policy provides, like attraction property,

[00:17:18] Speaker 01:
Ingress, egress, civil authority, just to name a few, those types of losses, if you have damage to attraction property, can create or provide coverage for business interruption.

[00:17:29] Speaker 01:
That's not a coverage that existed under the base policy.

[00:17:33] Speaker 01:
Ingress, egress, if you're losing business interruption because of the lack of ingress, egress, that coverage doesn't exist under the base policy.

[00:17:43] Speaker 01:
And the same is true with communicable disease provision.

[00:17:46] Speaker 01:
That coverage does not exist under the base policy.

[00:17:50] Speaker 01:
And the JGB case established clearly that physical loss or damage is not caused by COVID-19.

[00:17:58] Speaker 01:
And the reason, you know, council mentioned it was brought to the court's attention in supplemental authority, they brought it to the court's attention.

[00:18:07] Speaker 01:
But Judge Mann had already ruled that he was not going to entertain any more motions.

[00:18:14] Speaker 01:
for supplemental authority.

[00:18:15] Speaker 01:
He was tired of the parties doing that.

[00:18:17] Speaker 01:
That's the reason it was denied.

[00:18:20] Speaker 01:
It's very clear Judge Mayhem did not consider the JGB case.

[00:18:24] Speaker 01:
If you look at his opinion, it's not mentioned.

[00:18:26] Speaker 00:
Is it true that you opposed alerting the court to that opinion?

[00:18:30] Speaker 01:
I'm sorry?

[00:18:31] Speaker 00:
Is it true that you opposed alerting the court to that opinion?

[00:18:34] Speaker 01:
On the grounds that it violated the judge's prior order.

[00:18:38] Speaker 01:
If you look at our opposition to their motion for supplemental authority,

[00:18:42] Speaker 01:
We argued that JGB supported our position.

[00:18:47] Speaker 01:
We didn't think it was not applicable.

[00:18:51] Speaker 01:
But Judge Mayne clearly did not consider it.

[00:18:54] Speaker 01:
He would have mentioned it in his opinion if he did.

[00:18:56] Speaker 01:
And that was the reason we filed the motion for reconsideration, asking the court to reconsider its opinion and consider JGB, which established again that COVID-19 does not cause or constitute physical loss or damage.

[00:19:12] Speaker 01:
And that's the end of the coverages that they seek on provisions that require physical loss or damage as a trigger.

[00:19:19] Speaker 00:
It's a little bit weird.

[00:19:20] Speaker 00:
You told him not to consider it, but then you asked for reconsideration to consider it?

[00:19:25] Speaker 01:
Well, again, there was a court order that said, parties, you may not file any supplemental authorities.

[00:19:34] Speaker 01:
And we pointed that out to the judge.

[00:19:37] Speaker 01:
And they violated that order.

[00:19:39] Speaker 01:
and that's we noted that to the court and that's the basis for the court's rejection of the supplemental authority.

[00:19:45] Speaker 01:
But again in arguing that we alternatively pointed out that JGB supported our position.

[00:19:52] Speaker 01:
We clearly expected the court to consider it

[00:19:56] Speaker 02:
With respect to the communicable diseases coverage provisions that you hadn't expressly sought reconsideration on that order and Judge Silva, nonetheless granted, I think didn't really address them, but the order seemed to dismiss all of the claims, correct?

[00:20:13] Speaker 02:
Grant summary judgment as to all of the claims.

[00:20:15] Speaker 02:
Am I right that on appeal, your only argument in defense of that decision is that Treasure Island failed to provide

[00:20:26] Speaker 02:
sufficient evidence that there was actual presence of COVID-19 at the property prior to the date of closure?

[00:20:33] Speaker 01:
That, Your Honor, along with the absence of any causation.

[00:20:40] Speaker 01:
So we agree.

[00:20:41] Speaker 02:
Again, those are ground summary judgment.

[00:20:45] Speaker 02:
Those are factual issues.

[00:20:46] Speaker 02:
So why was the expert report that they provided and the evidence that they provided that they were planning for an imminent closure not sufficient to at least create a factual dispute that has to go to trial as opposed to being a basis for summary judgment?

[00:21:03] Speaker 01:
Well, again, there's two components.

[00:21:05] Speaker 01:
One, they have to have the actual not suspected presence

[00:21:08] Speaker 01:
of a communicable disease and all they submitted was evidence of some employees had symptoms and some expert who said there was statistically certain that there was COVID on the premises.

[00:21:21] Speaker 02:
And why wouldn't that be sufficient for a jury to conclude that sort of intuitively that COVID was present on those premises of a busy casino prior to March 17, 2020?

[00:21:32] Speaker 01:
The words in the policy are actual.

[00:21:34] Speaker 01:
Actual is defined as existing in fact.

[00:21:36] Speaker 02:
Right, and that's a factual question, though, correct?

[00:21:39] Speaker 02:
I mean, does the policy say, there's nothing in the language of the policy that says actual presence has determined by a contemporaneous test of some kind, correct?

[00:21:50] Speaker 01:
Correct.

[00:21:50] Speaker 01:
But again, actual means existing in fact.

[00:21:52] Speaker 01:
Statistics are not facts.

[00:21:54] Speaker 01:
That's a probability.

[00:21:55] Speaker 02:
No, there are evidence, there are testimony from which one can draw conclusions of fact.

[00:22:00] Speaker 01:
We would disagree with that.

[00:22:01] Speaker 01:
Again, I don't think it meets the standard of actual existing.

[00:22:04] Speaker 01:
In fact, statistics are merely probabilities.

[00:22:08] Speaker 01:
It's not actualities, which is what the policy requires.

[00:22:12] Speaker 01:
And second, the second element.

[00:22:15] Speaker 02:
I mean, is there really a dispute that honestly, is there an honest dispute that there was COVID present in this busy casino property prior to March 17th, 2020?

[00:22:29] Speaker 01:
They haven't established that.

[00:22:31] Speaker 01:
And we cited case law in our brief that a number of policyholders argued, hey, COVID is everywhere.

[00:22:37] Speaker 01:
It had to be everywhere.

[00:22:38] Speaker 01:
And courts have rejected that as being sufficient evidence of establishing the presence of COVID-19.

[00:22:43] Speaker 04:
Well, I've looked into those cases and those cases and they were

[00:22:47] Speaker 04:
bear allegations that you can infer from the fact that COVID was everywhere, that it was here.

[00:22:52] Speaker 04:
And courts said, you know, for example, you didn't allege that there was someone who was sick showing COVID symptoms on the property.

[00:22:58] Speaker 04:
But we do have that here.

[00:23:02] Speaker 01:
I don't think we have that here.

[00:23:03] Speaker 02:
I mean, they have testimony about the at least two individuals who showed symptoms months before.

[00:23:08] Speaker 01:
Yeah.

[00:23:09] Speaker 01:
And as we pointed out in our brief, and the CDC says this, you can't tell the difference between symptoms of a flu and symptoms of COVID without a test.

[00:23:17] Speaker 02:
And what tests were available in early March 2020?

[00:23:23] Speaker 01:
PCR tests that people took.

[00:23:25] Speaker 01:
That's how they discovered the presence of COVID in the U.S.

[00:23:29] Speaker 01:
in January of 2020 through a test.

[00:23:32] Speaker 04:
Right.

[00:23:32] Speaker 04:
At some point, a fact finder has to make a finding of fact about whether there was COVID present.

[00:23:37] Speaker 04:
But I think there's a, you know, we're on your motion for summary judgment.

[00:23:41] Speaker 04:
We're supposed to look at the record in the light most favorable to the nonmoving party.

[00:23:45] Speaker 04:
Couldn't a reasonable fact finder

[00:23:47] Speaker 04:
find based on the evidence here that COVID was actually present?

[00:23:50] Speaker 01:
We think it's insufficient as a matter of law.

[00:23:53] Speaker 04:
That's an argument you can make to the fact finder.

[00:23:56] Speaker 04:
You think it's insufficient as a matter of law?

[00:23:59] Speaker 01:
Yeah, again, we've got two things.

[00:24:00] Speaker 01:
We've got the symptoms.

[00:24:02] Speaker 01:
Two employees apparently had symptoms.

[00:24:06] Speaker 01:
Appellate courts have ruled that's not enough.

[00:24:08] Speaker 01:
That's not the actual presence of a communicable disease.

[00:24:11] Speaker 01:
That's the suspected presence of a communicable disease.

[00:24:12] Speaker 00:
But you have the expert saying that given the demographics and the number of people, the 99.99% certainty, in any other context, that is enough to create a question of fact, right?

[00:24:24] Speaker 00:
When an expert is saying the cause here or the fact here is 99% certain, what you're arguing seems completely frivolous to me.

[00:24:33] Speaker 00:
I don't understand how you could argue that that doesn't create a question of fact.

[00:24:35] Speaker 01:
Well, I'm sorry you think it's frivolous, but I disagree.

[00:24:37] Speaker 01:
I think that's only showing a probability.

[00:24:39] Speaker 02:
And there was no motion.

[00:24:42] Speaker 02:
Did you move to exclude the expert testimony on any grounds under 702?

[00:24:46] Speaker 01:
No.

[00:24:46] Speaker 01:
Motions eliminated had not been filed yet.

[00:24:49] Speaker 02:
But if that was put in that summary judgment in opposition, you didn't say, judge, please disregard this expert's testimony.

[00:24:57] Speaker 02:
It's excludable under 702?

[00:24:59] Speaker 01:
Correct.

[00:25:00] Speaker 01:
We did not as part of the summary judgment motion.

[00:25:02] Speaker 01:
But there's a second component to the communicable disease claim.

[00:25:05] Speaker 01:
causation piece.

[00:25:07] Speaker 01:
So you have to have a causal link between the presence of COVID and the closure of the business.

[00:25:13] Speaker 01:
These employees had symptoms in January of 2020.

[00:25:15] Speaker 01:
They didn't close in January 2020.

[00:25:17] Speaker 01:
The other employee had symptoms in February of 2020.

[00:25:21] Speaker 01:
They didn't close in February 2020.

[00:25:23] Speaker 01:
The expert says COVID was statistically likely since January 1 of 2020.

[00:25:31] Speaker 01:
They didn't close in January.

[00:25:32] Speaker 01:
Because in February but they have someone who's saying who's testifying under oath that they would have closed That's well, that's speculative and that's not what happened they closed only because The state of Nevada ordered all casinos in the state to close again isn't that I mean?

[00:25:52] Speaker 04:
We're not here to resolve credibility disputes you have someone saying we already decided to close so you can argue to the jury that that's

[00:26:01] Speaker 04:
You shouldn't believe that testimony, but that's not our role here on a motion for summary judgment.

[00:26:05] Speaker 04:
Is that correct?

[00:26:06] Speaker 01:
Well, again, that evidence is not what happened.

[00:26:10] Speaker 01:
What happened is they closed because the state of Nevada court ordered all casinos to close statewide.

[00:26:16] Speaker 04:
You're asking us to disregard someone saying we had already decided to close.

[00:26:22] Speaker 01:
Yeah.

[00:26:22] Speaker 01:
And if you look at their complaint, they don't make any mention of that.

[00:26:25] Speaker 01:
If you look at their complaint, all they allege is for the reason they closed,

[00:26:29] Speaker 01:
is the state of Nevada's order.

[00:26:32] Speaker 02:
It seems like you don't have a very strong argument on the factual issue.

[00:26:39] Speaker 02:
Is there case law saying that under a policy like this,

[00:26:43] Speaker 02:
even if a right to coverage would have arisen under the factual circumstances presented, an intervening cause like the shutdown order here results in the denial of coverage?

[00:27:00] Speaker 02:
There's sort of a legal question that seems implicit in what you're arguing, which is,

[00:27:05] Speaker 02:
Let's assume they've put on enough evidence to show they would have closed two days afterwards.

[00:27:10] Speaker 02:
Is there a Nevada law that says the fact that there was this intervening cause means that they are not entitled to coverage under their insurance provision?

[00:27:19] Speaker 01:
No, but there is the ins at the C case in California that this court cited in the Circus Circus case on causation.

[00:27:27] Speaker 01:
And they basically said, you have to look at it this way.

[00:27:28] Speaker 01:
What would have happened if Treasure Island had

[00:27:33] Speaker 01:
completely sterilized its premises the day after the governor ordered the shutdown of the casinos.

[00:27:41] Speaker 01:
What would have happened?

[00:27:43] Speaker 01:
They still would have been closed.

[00:27:46] Speaker 01:
Not because of any presence of COVID-19, but because of this order from the governor.

[00:27:51] Speaker 01:
And they reopened when the governor said, hey, it's okay now to reopen, even though their expert says COVID was on site.

[00:28:00] Speaker 01:
The presence of COVID had absolutely nothing to do with the closure of Treasure Island.

[00:28:06] Speaker 01:
The only thing and the only reason it closed is because the governor ordered it to be closed.

[00:28:13] Speaker 01:
And that's the second piece of this communicable disease coverage claim, the causation piece.

[00:28:17] Speaker 01:
Even if you agree, yeah, okay, there was COVID on the property.

[00:28:21] Speaker 01:
Didn't cause their loss.

[00:28:24] Speaker 01:
There was no coverage under that communicable disease provision.

[00:28:32] Speaker 01:
I think I'm about out of time.

[00:28:34] Speaker 01:
If the panel has any other questions, I'm happy to address those.

[00:28:36] Speaker 01:
Otherwise, I thank you for your time.

[00:28:39] Speaker 00:
Thank you.

[00:28:39] Speaker 00:
Let's put a minute on the clock for rebuttal.

[00:28:46] Speaker 03:
Thank you, Your Honors.

[00:28:47] Speaker 03:
Let me address quickly the points that counsel made, because some of them, quite frankly, are, I can't even say the word, closure.

[00:28:58] Speaker 03:
Treasure Island testified, corporate representatives testified, it was not disputed that they closed prior to any government order instructing anybody to close in Nevada.

[00:29:11] Speaker 00:
By one second or something, though?

[00:29:12] Speaker 03:
Is that what you mean?

[00:29:13] Speaker 03:
No.

[00:29:14] Speaker 03:
I forget the exact period, but it wasn't, oh, gee, we hear an order's coming.

[00:29:19] Speaker 03:
We're going to order closure.

[00:29:21] Speaker 03:
Well, I thought it was something like that.

[00:29:23] Speaker 00:
I thought the order went into effect at midnight, and they closed at 1159 or something.

[00:29:26] Speaker 00:
Is that wrong?

[00:29:27] Speaker 03:
They had made the decision.

[00:29:29] Speaker 00:
OK, that's different, the decision to close, but the actual closure.

[00:29:32] Speaker 00:
You were just saying they closed before.

[00:29:34] Speaker 00:
That's not true.

[00:29:35] Speaker 03:
Right.

[00:29:36] Speaker 03:
Let me correct.

[00:29:37] Speaker 03:
They made the decision to close, which is what matters.

[00:29:40] Speaker 03:
Why did they close?

[00:29:40] Speaker 03:
And this goes to the causation issue, which is 100% a factual issue that was never appropriate and was not decided on summary judgment.

[00:29:48] Speaker 03:
Causation was not the issue.

[00:29:52] Speaker 03:
This was not about causation, so it really shouldn't be an issue here.

[00:29:57] Speaker 03:
In terms of showing presence, again, depositions were taken.

[00:30:01] Speaker 03:
I deposed the corporate representative from the insurance company and

[00:30:07] Speaker 03:
At the time they wrote the policy, which preceded COVID, and you sold this insurance, how did you expect a policyholder to ever establish the requisite elements to trigger this coverage?

[00:30:20] Speaker 03:
And I got a jumbled bunch of answers, but what we finally distilled it down to were there are multiple ways to do it.

[00:30:27] Speaker 03:
You can show somebody's sick, obviously not by any PCR testing because it didn't even exist at the time, right?

[00:30:35] Speaker 03:
Or you could use contact tracing.

[00:30:37] Speaker 03:
And there were several other methods that the designee articulated.

[00:30:41] Speaker 03:
And remarkably, I said, well, did you ever?

[00:30:42] Speaker 00:
No, I think I need to cut you off, because you're over your time, and I think we understand your argument.

[00:30:46] Speaker 00:
So thank you both sides for the helpful arguments.

[00:30:48] Speaker 00:
This case is submitted, and we're adjourned for the day.