How Requests For Publication Of Appellate Opinions Can Help Shape Your Industry

• Published date: 25 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Trials & Appeals & Compensation, Insurance Claims
• Law Firm: Hanson Bridgett LLP
• Author: Josephine Petrick and Ashley Nakai

In the wake of the Coronavirus pandemic, countless policyholders made insurance claims with their carriers based on the closure or interruption of their businesses. The insurers with near-uniformity denied coverage, presenting a united front against their insureds. Thousands upon thousands of cases ensued testing the propriety of the insurers' denial of coverage.

Many business-interruption insurance policies are meant to cover losses tied to the "direct physical loss or direct physical damage" of (or to) the insured's premises. Nationwide, courts are facing a complicated question'whether the COVID-19 virus can be said to cause "direct physical loss or direct physical damage."

In the first wave of cases addressing this issue, one obscure California Court of Appeal case began to dominate the discussion in California's state and federal courts: MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins., 187 Cal.App.4th 766 (2010). Though MRI Healthcare was decided a decade before the pandemic (and has nothing to do with viruses), in some early cases it was treated as a leading authority because of its holding that the phrase "accidental direct physical loss to" personal business property requires a physical change in the property. Id. While that is now changing as appellate courts recognize the unique conditions of the pandemic require a more tailored analysis, the early effects of MRI Healthcare were undeniable.

But there's a hidden story about MRI Healthcare'the opinion was not initially designated for publication. Had it stayed that way, the opinion would have been nonprecedential, and noncitable under California's no-citation rule. See Cal. R. of Ct. 8.1115(a). It took foresight, initiative, and creative appellate lawyering using an obscure procedure'a request for publication by a nonparty to the appeal, see id. R. 8.1120'to make MRI Healthcare relevant a decade later during the COVID-19 pandemic.

Litigators, in-house counsel, and industry leaders should take note of the successful strategy that counsel employed in requesting that the Court of Appeal publish MRI Healthcare, and deploy it when new, favorable unpublished authorities come down the wire. Requests for publication are simple to prepare, and can pay dividends.

An MRI Machine Fails to "Ramp Up"

In MRI Healthcare, a healthcare provider, "MHC," had to demagnetize its MRI machine while repairs were being performed on the building. 187 Cal.App.4th at 769−70. The machine then failed to "ramp...