Whether federal courts are violating Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and principles of federalism in uniformly refusing to seek guidance from a state's highest court on state law questions relating to COVID-related insurance coverage

QUESTIONS PRESENTED FOR REVIEW There is a centrally compelling reason dealing with principles of federalism that calls for this Court to take action in this case. The question is this: Whether federal courts are violating Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and principles of federalism in uniformly refusing to seek guidance from a state’s highest court on state law questions relating to COVID-related insurance coverage. Tellingly, state courts have dismissed COVID-19 coverage cases 51.8% of the time while federal courts have dismissed them at the astonishing rate of 92.5%. The odds of surviving a motion to dismiss are 5 times greater in state court than in federal court. This is a statistically significant variation (similar to what is encountered in employment discrimination cases), raising a rebuttable presumption of unequal treatment. This disparity is inexplicable, and a return to Erie compliance is mandated. During the COVID-19 pandemic, state and local governments forced business to close their doors in order to slow the spread of the virus. Many of those business, including Goodwill Industries of Central Oklahoma, Inc. (“Goodwill”), filed claims for business interruption coverage under their commercial lines insurance policies. These policies typically provide coverage for “loss of Business Income” when the insured is required to suspend operations during the “period of restoration” due to “direct physical loss of or damage to” covered property. They often also contain virus exclusions which preclude coverage for loss or damage “caused by or resulting from any virus... that induces or is capable of inducing physical distress, illness, or disease.” (i) ll In Goodwill’s case, the Tenth Circuit affirmed the Western District of Oklahoma’s dismissal of Goodwill’s claim for declaratory relief, finding that “direct physical loss of or damage to” requires tangible damage to property. It further affirmed the validity and application of the Virus Exclusion to the policy. It did so despite the fact that phrase “direct physical loss or damage” does not have a settled meaning under Oklahoma law, and the Oklahoma Supreme Court stands poised to enter a ruling in pending cases on accelerated appeal where the meaning of such language is in dispute. The questions presented here are: (1) Whether federal courts are violating Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), as well as principles of federalism, in uniformly refusing to seek answers from a state’s highest court on state law questions relating to COVID-related insurance coverage; (2) Whether the phrase “direct physical loss of or damage to” requires an immediate, perceptible, and tangible destruction or deprivation of property; (3) Whether the courts below properly applied Oklahoma’s rules of contract construction with respect to insurance policies; (4) Whether the phrase “direct physical loss of or damage to” is ambiguous; and (5) Whether the Virus Exclusion precludes coverage.