¶2 On July 12, 2021, this Court designated this case, Cherokee Nation v. Lexington Insurance Company (Case No. 119,359), 2022 OK 71, and Muscogee (Creek) Nation v. Lexington Insurance Company (Case No. 119,701) as companion cases. The sole issue in each of the companion cases is whether the district court correctly determined that business interruption coverage for the insured's losses "caused by direct physical loss or damage... to real and/or personal property" includes losses incurred by some intangible harm that rendered the insured's property unusable for its intended purpose.
¶2 On July 12, 2021, this Court designated this case, Cherokee Nation v. Lexington Insurance Company (Case No. 119,359), 2022 OK 71, and Choctaw Nation of Oklahoma v. Lexington Insurance Company (Case No. 119,413) as companion cases. The sole issue in each of the companion cases is whether the district court correctly determined that business interruption coverage for the insured's losses "caused by direct physical loss or damage . . . to real and/or personal property" includes losses incurred by some intangible harm that rendered the insured's property unusable for its intended purpose.
When an alleged breach is based on an insurer's failure to pay benefits, the insured bears the initial burden of showing that a loss is a covered loss under the insurance policy. Cherokee Nation v. Lexington Ins. Co., 521 P.3d 1261 (Okla. 2022), 2022 OK 71, ¶ 11; Pitman v. Blue Cross & Blue Shield of Oklahoma, 217 F.3d 1291, 1298 (10th Cir. 2000). Summary judgment in favor of the insurer is therefore "proper when the undisputed facts show that the insured has failed to establish a covered claim under its insurance policy."
"Using the de novo standard, we subject the record to a new and independent examination without regard to the district court’s reasoning or result." Cherokee Nation v. Lexington Ins. Co., 2022 OK 71, ¶ 8, 521 P.3d 1261. "All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing summary judgment."
Serra v. Estate of Broughton, 2015 OK 82, ¶ 16, 364 P.3d 637. "Using the de novo standard, we subject the record to a new and independent examination without regard to the district court's reasoning or result." Cherokee Nation v. Lexington Ins. Co., 2022 OK 71, ¶ 8, 521 P.3d 1261. "All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing summary judgment."