This has to be the most unique case involving coverage in connection with Covid-19. 

Theodore Cooperstein was a U.S. Attorney.  On four occasions, between June 22, 2021 and October 6, 2021, he appeared before Judge Carlton Reeves in the Southern District of Mississippi.  Each time, at the beginning of the proceedings, Judge Reeves asked the parties and counsel on the record whether they were vaccinated against COVID-19.  Cooperstein gave conflicting responses each time and ultimately acknowledged that he was not vaccinated. 

Following an order to show cause, Judge Reeves sanction Cooperstein $6,000.  Cooperstein also incurred costs as part of an investigation by the U.S. DOJ’s Office of Professional Responsibility.

Cooperstein sought coverage, under a federal employee professional liability policy, for his costs of defending against the proceedings before Judge Reeves and the OPR investigation.

The insurer disclaimed coverage on the basis that Cooperstein’s alleged misrepresentation did not qualify under the policy as “misconduct arising from an act, error or omission in professional services rendered.”  As the insurer saw it, Cooperstein “was not engaged in furthering the affairs or services of his employer when he allegedly misrepresented his personal medical status to the court.”

Cooperstein filed a coverage action.  The insurer argued that, because Coopestein’s “misrepresentations were not themselves made in furtherance of the affairs or services of the United States, the Policy does not cover the Plaintiff’s defense costs.”

However, the court in Cooperstein v. Scottsdale Ins. Co., No. 21-780 (S.D. Miss. March 7, 2023) didn’t break a sweat in concluding otherwise.  In finding that coverage was owed, the court explained:  

“The Court finds, however, that the misrepresentations were clearly made while the Plaintiff was furthering the affairs or services of the United States because he was in court appearing for the United States, the cases the Plaintiff was prosecuting had been called by the court, and he was responding on the record to questions posed by the presiding Judge in each instance.  This lines up with the relevant Policy language, which states that the Defendant insurer will pay the costs of defense arising out of any disciplinary proceeding or investigation into the Plaintiff's alleged misconduct regarding services rendered within the course and scope of employment and performed while engaged in and furthering the affairs or services of the United States.”