In two different cases, the Ninth Circuit has asked the Supreme Court to answer questions regarding insurance coverage for business losses resulting from the COVID pandemic — Another Planet Entertainment, LLC v. Vigilant Insurance Co. (see here) and French Laundry Partners, LLP v. Hartford Fire Insurance Co. (see here). Both requests are pending.

Meanwhile, two other Ninth Circuit panels in COVID insurance appeals took different approaches yesterday to the coverage issues before them.

In Kevin Barry Fine Art Assocs. v. Sentinel Insurance Co., case number 21-15240, the Ninth Circuit is waiting to see what the Supreme Court does. It stayed the appeal “pending resolution of this court’s certifications to the Supreme Court of California in French Laundry Partners . . . and Another Planet Entertainment . . ., or until further order of the court.”

On the other hand, the panel in Discount Electronics, Inc. v. Wesco Insurance Co. saw no reason for delay. It issued a memorandum holding that “the Virus Exclusion clearly bars coverage” and finding it unnecessary to address the question posed in Another Planet — “whether allegations concerning the presence of COVID-19 on an insured party’s property ‘suffice to state a viable claim for “direct physical loss or damage to property.” ’ ”

The Discount Electronics decision is not necessarily the end of the story in the appeal.  Occasionally, the Ninth Circuit has changed its mind on rehearing or en banc about referring a state law question to California’s high court.  (See  here, here, and here.)

The Supreme Court could decide as early as next Wednesday whether it will answer the Another Planet question.

[Update: Ben Zigterman reports on Law360 about two federal district court coverage cases that have been put on hold until the Supreme Court acts.]

Updates after the Supreme Court agreed to answer the Another Planet question:

[March 7 update: HP Tower Investments, LLC v. Nationwide Mutual Insurance Co. is another case where a Ninth Circuit panel believed it unnecessary to wait for Supreme Court guidance on a COVID insurance issue. In its memorandum decision yesterday, the court said, “Plaintiffs’ theory of coverage is squarely foreclosed by our decision in Mudpie, Inc. v. Travelers Casualty Insurance Co. of America, 15 F.4th 885 (9th Cir. 2021)” and it explained, “Although we recently certified two questions to the California Supreme Court concerning coverage issues relating to the pandemic, neither has any bearing on this case.”]

[March 11 update: Yesterday’s memorandum decision in In-N-Out Burgers v. Zurich American Insurance Co. also finds no coverage and concludes there’s no reason to wait: “Because the contamination exclusion controls the outcome of this case, we decline to stay proceedings and make no holding as to whether the presence of COVID-19 can constitute ‘direct physical loss of or damage to’ property. We also decline In-N-Out’s request to certify a question to the Supreme Court of California that is duplicative of what is contemplated in Another Planet.”]