Update: Insurers Continue To Succeed On Appeal On COVID-19 Property Claims

By Melinda S. Kollross

The body of federal and state appellate precedent keeps growing, with nearly every appellate tribunal holding that there is no property insurance coverage for pandemic related economic losses in the absence of physical loss or damage.

There are just two contrary decisions nationwide: A New York appellate decision favoring an insured, but not involving the physical loss or damage issue (New York Botanical Garden), and a split 3-2 Louisiana Court of Appeals decision (Cajun Conti) finding coverage through policy ambiguity.

State Appellate Tribunals:

California

United Talent Agency LLC v. Vigilant Ins. Co., No. B314242 (Cal. App. 4-22-22)

Adhering to Inns-by-the-Sea v. California Mutual Ins. Co, 71 Cal.App.5th 688 (2021), the Court ruled that it is now widely established that temporary loss of use of property due to pandemic related closure orders, without more, does not constitute direct physical loss or damage.

Florida

Commodore Inc. v. Certain Underwriters at Lloyd’s London, No. 3D21-0671 (Fla. App. 5-11-22)

Under Florida law and the plain language of the policy, loss of intended use alone does not constitute “direct physical loss.” Instead, “direct physical loss of or damage to property” requires actual, tangible alteration to the insured property for coverage to be triggered. The insured’s allegation that it suffered economic losses due to closure orders did not satisfy this requirement. According to the Court, the difference between the insured’s loss of use theory and something clearly covered—like a hurricane—is that the insured’s property did not change; the world around it did.

Illinois

ABW Development, LLC v. Continental Casualty Co., 2022 IL App (1st) 210930

The Court held that “physical loss of or damage to” property required that the property has been altered in appearance, shape, color or in other material dimension. The insured failed to meet this requirement because the mere presence of the virus on surfaces did not constitute “physical loss of or damage to property.” COVID-19 did not physically alter the appearance, shape, color, structure, or other material dimension of the property.

Alley 64 Inc. v. Society Ins. Co., 2022 IL App (2d) 210401

The Court rejected an insured’s attempt to pigeonhole its COVID-19 losses into a contamination coverage provision holding that the insured’s failure to allege the presence of the virus in its products, merchandise, or premises defeated the claim for contamination coverage. The contamination coverage required that the insured’s operations be suspended due to contamination. The insured never alleged that its premises were contaminated. Without contamination, there was no contamination coverage.

Firebirds Int’l, LLC v. Zurich Am. Ins. Co., 2022 IL App (1st) 210558

The insured alleged property damage and business losses due to the presence of the COVID-19 virus on its properties. But, according to the plain language of Zurich’s policies, the COVID-19 virus was not a covered cause of loss. Each of the provisions under which the insured sought recovery—time element, civil authority, and protection and preservation—required physical loss or damage caused by a covered cause of loss, and there was no such damage or loss in this case.

GPIF Crescent Court Hotel LLC v. Zurich Am. Ins. Co., 2022 IL App (1st) 211335-U

The Court applied Sweet Berry Cafe, Inc. v. Society Ins. Inc., 2022 IL App (2d) 210088, and Lee v. State Farm Fire & Casualty Co., 2022 IL App (1st) 210105, holding those cases controlling. The insured’s allegations were, in all material respects, no different than those made by the insureds in those two cases: containment measures and government orders limited its use of its property, creating an economic loss in the form of lost income and added expenses. Without an allegation of a change to the physical nature of the existing property, those allegations were insufficient to establish a physical loss.

Ortiz Eye Assoc., P.C. v. Cincinnati Ins. Inc., 2022 IL App (1st) 211312-U

The Court applied Sweet Berry Cafe, Inc. v. Society Ins. Inc., 2022 IL App (2d) 210088, and other Illinois and Seventh Circuit COVID-related cases in holding that the insured failed to plead any facts showing that the presence of the COVID-19 virus caused any direct accidental physical loss or direct accidental physical damage to property that altered its appearance, shape, color, structure or material dimension necessitating any repairs or requiring a move to a new location.

Ark Restaurants Corp. v. Zurich Am. Ins. Co., 2022 IL App (1st) 211147-U

Applying Illinois law, the Court held that the insured did not suffer direct physical loss of or damage to property within the meaning of its commercial property insurance policy when the insured suspended or scaled back restaurant operations in early 2020 as required by government-imposed restrictions intended to curb COVID-19 pandemic.

Louisiana

Cajun Conti LLC v. Certain Underwriters at Lloyds London, No. 2021-CA-0343 (La. App. 6-15-22)

In a 3-2 split decision, the Court held that direct physical loss of or damage to property was ambiguous in the context of the presence of COVID-19 and construed coverage in favor of the insured. Of the three-judge majority, one judge concurred in the judgment, while just two others in the opinion. Two other judges dissented on the basis that there was no coverage for the insured’s pandemic related economic losses.

Maryland

GPL Enters., LLC v. Certain Underwriters at Lloyd’s, — A.3d —, 2022 WL 1638787 (Md. Ct. Spec. App. 5-24-22)

In this first opinion by a Maryland state court addressing pandemic related lost business income claims, the Maryland Court of Special Appeals held that although no Maryland appellate court had decided this specific question of whether COVID-19 or the closure orders constituted physical loss or damage, hundreds of courts throughout the United States have decided it in interpreting policies that were substantially identical to the policy in this case. Although the policies do not define the operative terms, those courts have held, almost unanimously, that the phrase “physical loss of or damage to” property is unambiguous and that the policies afforded no coverage for pandemic related economic losses.

New Jersey

Mac Property Group LLC et al. v. Selective Fire and Casualty Ins. Co., No. A-0714-20 (N.J. App. 6-20-22)

The New Jersey Appellate Division disposed of 6 appeals in favor of various insurers holding that under New Jersey law, the insured’s business losses were not caused by physical loss or damage to their properties, as required for coverage under their insurance policies with defendants, but by governmental restrictions imposed to curb the COVID-19 pandemic.

Rockleigh Country Club LLC v. Hartford Ins. Group, No. A-1826-21 (N.J. App. 6-21-22)

The Court ruled for the insurer holding that the insured had not shown that it suffered any physical loss or damage, and that in any event, a virus exclusion barred the entirety of the claim.

New York

Consolidated Restaurant Operations, Inc. v. Westport Ins. Corp., No. 450839/21 (N.Y. App. 4-7-22)

The issue of whether business interruptions due to COVID-19 was caused by direct “physical” damage to property presented an issue of first impression for an appellate court in New York. The Court found though that previous New York decisions construed the phrase “direct physical loss or damage” in other contexts involving similar insurance contracts. Accordingly, the Court held that where a policy states that coverage is triggered only where there is “direct physical loss or damage” to the insured property, there must be actual, discernable, quantifiable change in the property. Here, there was no such change because of exposure to the virus, and thus the insured had no coverage.

New York Botanical Garden v. Allied World Assur. Co., No. 2021-04319 (N.Y. App. 6-14-22)

In a ruling for an insured under a “Pollution Legal Liability” policy, the insurer had admitted that COVID-19 was a pollution incident under the policy, and the Court held that the insurer had failed to show that contingent business interruption coverage was available only if the insured had been completely denied access to its property. According to the Court, the policy contemplated coverage for periods when the insured had some temporary access to its property.

Virginia

Crescent Hotels & Resorts, LLC v. Zurich Am. Ins. Co., No. 211074 (Va. Sup. Ct. 4-14-22)

The Virginia Supreme Court refused to review a trial court’s ruling that a hotel management company failed to show physical loss or damage in its COVID-19 coverage suit against its insurers, finding “no reversible error in the judgment complained of.” Under Virginia procedure, a denial of a petition for appeal based on “no reversible error” is a decision on the merits. Although not precedential, it may still be cited as a decision on the merits.

Wisconsin

Colectivo Coffee Roasters, Inc. v. Society Ins., No. 2021AP463 (Wis. S. Ct. 6-1-22)

In a unanimous decision, the Wisconsin Supreme Court ruled for the insurer holding that for a harm to constitute a physical loss of or damage to the property, it must be one that requires the property to be repaired, rebuilt, or replaced and it must alter the property’s tangible characteristics. The Court further held that a contamination provision was inapplicable because the insured did not close its business specifically because its site was contaminated, but rather from the governmental closure order.

Federal Appellate Tribunals:

First Circuit

Legal Seafoods, LLC v. Strathmore Ins., No. 21-1202 (1st Cir. 6-3-22)

American Food Systems, Inc. v. Fireman’s Fund Ins. Co., No. 21-1307 (1st Cir. 6-3-22)

SAS Int’l Ltd. v. General Star Indem. Co., No. 21-1219 (1st Cir. 6-3-22)

In these cases, arising under Massachusetts law, the Court found that the recent decision in Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266 (Mass. 2022), was controlling. Verveine held that direct physical loss of or damage to property required some distinct, demonstrable, physical alteration of the property. Here there was no such damage to any insured property, and thus no coverage for any of the insured’s pandemic related economic losses.

Second Circuit

BR Restaurant Corp. v. Nationwide Mut. Ins. Co., No. 21-2100 (2d Cir. 4-8-22)

Adhering to its prior decision in 10012 Holdings, Inc. v. Sentinel Ins. Co., 21 F.4th 216, 220 (2d Cir. 2021), the Court found its decision was consistent with New York state law that economic losses arising from loss of use did not constitute physical loss or damage.

Abbey Hotel Acquisition LLC v. National Surety Corp., No. 21-2609 (2d Cir. 5-27-22)

Applying Florida law, the Court held that the insured’s COVID-19 losses were not covered as a “covered communicable disease event” because even if it were true that a communicable disease event occurred, the insured would still be entitled to reimbursement only for “direct physical loss or damage” “caused by or resulting from” such an event. And “physical loss or damage” did not extend to the mere presence of COVID-19 particles in the air or on surfaces.

Farmington Village Dental Assoc., LLC v. Cincinnati Ins. Co., No. 21-2080 (2d Cir. 6-8-22)

The Court held that under Connecticut law, the insured’s deprivation of the use and benefits of its property was not enough to trigger coverage. Further, the insured’s allegations that COVID caused physical loss or physical damage to its property by way of its transmissibility through physical particles in the air and on surfaces failed to allege how the presence of those virus-transmitting particles tangibly altered or impacted the property.

Fourth Circuit

The Cordish Companies, Inc. v. Affiliated FM Ins. Co., No. 21-2055 (4th Cir. 4-14-22)

National Coatings and Supplies, Inc. v. Valley Forge Ins. Co., No. 21-1421 (4th Cir. 6-2-22)

Summit Hospitality Group, Ltd. v. The Cincinnati Ins. Co., No. 21-1362 (4th Cir. 6-2-22)

Bel Air Auto Auction, Inc. v. Great Northern Ins. Co., No. 21-1493 (4th Cir. 6-14-22)

Adhering to its previous decision in Uncork & Create LLC v. Cincinnati Ins. Co., 27 F.4th 926 (4th Cir. 2022), the Court held in each of these appeals that there was no coverage for an insured’s pandemic related economic loss in the absence of physical loss or damage to insured property.

Fifth Circuit

Louisiana Bone & Joint, L.L.C. v. Transportation Ins. Co., No. 21-30300 (5th Cir. 3-29-22)

Adhering to its prior decision in Q Clothier New Orleans, LLC v. Twin City Fire Ins. Co., 2022 U.S. App. LEXIS 7565, __ F.4th __ (5th Cir. 2022), the Court held that the insured’s losses from the closure of its clinic during the COVID-19 pandemic were not covered in the absence of any physical loss or damage to insured property.

Ferrer & Poirot, GP v. The Cincinnati Ins. Co., No. 21-11046 (5th Cir. 6-9-22)

In a case arising under Texas law, the Court adhered to its previous decision applying Texas law in Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 6 22 F.4th 450 (5th Cir. 2022), and held that the insured’s COVID related economic losses were not covered in the absence of physical loss or damage to insured property.

Sixth Circuit

Renaissance/The Park, LLC v. Cincinnati Ins. Co., No. 21-6016 (6th Cir. 5-20-22)

Adhering to its prior decision applying Kentucky law in Estes v. Cincinnati Ins. Co., 23 F.4th 695, 699 (6th Cir. 2022), the Court rejected the insured’s argument that Estes was wrongly decided under Kentucky law holding that until the Kentucky Supreme Court holds differently that physical loss or damage does not mean tangible destruction or deprivation, Estes would remain the law of the Sixth Circuit.

Troy Stacy Enter. Inc. v. Cincinnati Ins. Co., No. 21-4008 (6th Cir. 6-8-22)

Adhering to its prior decisions in Santo’s Italian Café LLC v. Acuity Ins. Co., 15 F.4th 398 (6th Cir. 2021), and Dakota Girls, LLC v. Phila. Indem. Ins. Co., 17 F.4th 645 (6th Cir. 2021), the Court held that the insured’s pandemic related economic losses were not covered by its property policy in the absence of physical loss or damage to insured property.

Henderson Road Restaurant Sys. v. Zurich Am. Ins. Co., No. 21-4148 (6th Cir. 6-13-22)

In a case arising under Ohio law, the Court adhered to its previous decision applying Ohio law in Dakota Girls, LLC v. Phila. Indem. Ins. Co., 17 F.4th 645 (6th Cir. 2021), and ruled for the insurer. According to the Court, unambiguous policy language required the insured to demonstrate either destruction of the property or the insured’s dispossession to show loss and a direct physical alteration of the property to show damage. Loss of use alone does not meet this requirement under Ohio law.

Seventh Circuit

East Coast Entertainment of Durham LLC v. Houston Casualty Co., 31 F.4th 547 (7th Cir. 2022)

The Court here found that its prior decision in Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021), barred coverage for the insured’s pandemic related losses, despite the insured’s contention that Sandy Point involved Illinois law, and its case involved the law of North Carolina. According to the Court, the growing national consensus regarding the meaning of “direct physical loss” underscored that this case did not turn on variations in state contract law.

Paradigm Care and Enrichment Center, LLC v. West Bend Mut. Ins. Co., No. 21-1695 (7th Cir. 5-3-22)

In a case arising under Michigan law, the Court applied Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021), barring coverage for the insured’s pandemic related losses, holding that the Michigan Supreme Court would agree with its decision. According to the Court, the Michigan Court of Appeals reached the same conclusion as Sandy Point in Gavrilides Mgmt. Co. v. Mich. Ins. Co., __ N.W.2d __, __, No. 354418, 2022 WL 301555, at *4 (Mich. Ct. App. Feb. 1, 2022), holding that a “direct physical loss,” must “have some manner of tangible and measurable presence or effect in, on, or to the premises.” Additionally, the unanimity of decisions from other federal courts of appeals reinforced the prediction that the Michigan Supreme Court would rule the same way.

Green Beginnings LLC v. West Bend Mut. Ins. Co., No. 21-02186 (7th Cir. 5-27-22)

ABC Diamonds Inc. v. Hartford Casualty Ins. Co., No. 22-1026 (7th Cir. 6-3-22)

Melcorp, Inc. d/b/a Great Steak & Potato Co. v. West Am. Ins. Co., No. 21-2448 (7th Cir. 6-8-22)

In these cases, arising under Illinois law, the Court applied Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021), holding that the insured’s economic losses did not arise from physical loss or damage to insured property and thus were not covered. The Court in Green Beginnings also rejected the insured’s claim that a communicable disease provision afforded coverage holding that the insured’s business was closed by governmental order as a prophylactic measure for the entire state and not just because of conditions at the insured’s business.

Windy City Limousine Co., LLC v. Cincinnati Fin. Corp., No. 21-3296 (7th Cir. 6-6-22)

The Court applied Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021), and East Coast Entm’t of Durham, LLC v. Houston Cas. Co. & Am. Claims Mgmt., Inc., 31 F.4th 547 (7th Cir. 2022), holding that under Illinois law, “direct physical loss” requires a “physical alteration” to property. Because the insured never alleged any physical alteration to property, its complaint was properly dismissed. The Court also rejected the insured’s attempt to apply definitions from the commercial general liability part of the policy to the terms under the first-party property part of the policy holding that there is a difference between a policy’s third-party liability coverage and its property coverage, and the insured could not simply import contractual language from one policy section to another.

AFM Mattress Co. LLC v. Motorists Commercial Mutual Ins. Co., No 21-1865 (7th Cir. 6-16-22)

The Court adhered to its prior decision in Mashallah, Inc. v. West Bend Mut. Ins. Co., 20 F.4th 311 (7th Cir. 2021), holding that all the insured’s losses were barred by a virus exclusion in the policy.

Eighth Circuit

United Hebrew Congregation of St. Louis v. Selective Ins. Co. of Am., No. 21-2752 (8th Cir. 4-5-22)

Monday Restaurants et al. v. Intrepid Ins. Co., No. 21-2462 (8th Cir. 4-22-22)

Glenn R. Edwards Inc. v. Travelers Casualty Ins. Co., No. 21-3035 (8th Cir. 5-13-22)

In these appeals all arising under Missouri law, the Court found in each that pandemic related economic losses did not constitute a direct physical loss of property under Oral Surgeons, PC v. Cincinnati Ins. Co., 2 F.4th 1141, 1144 (8th Cir. 2021), which held that direct physical loss required some physicality to the loss or damage of property and mere loss of use without physical loss or damage did not suffice.

Planet Sub Holdings, Inc. v. State Auto Property & Casualty Ins. Co., Inc., No. 21-2199 (8th Cir. 6-6-22)

In a case involving Kansas, Missouri, and Oklahoma law, the Court found that the law of each state was similar and not different than the Court’s holding in Monday Restaurants et al. v. Intrepid Ins. Co., No. 21-2462 (8th Cir. 4-22-22), that direct physical loss required some physicality to the loss or damage of property, such as physical alteration, physical contamination, or physical destruction and mere loss of use without physical loss or damage did not suffice.

Ninth Circuit

Circus Circus LV, LP v. AIG Specialty Ins. Co., No. 21-15367 (9th Cir. 4-15-22)

Rialto Pockets, Inc. v. Beazley Underwriting Ltd., No. 21-55-196 (9th Cir. 4-20-22)

In these two appeals, the Ninth Circuit found Inns-by-the-Sea v. California Mut. Ins. Co., 71 Cal. App. 5th 688, 699 (2021), review denied (Mar. 9, 2022), controlling in ruling for the insurers and against the insureds.

Circus Circus arose under Nevada law, but the Court found that Nevada courts often look to California decisions for guidance on insurance issues. The controlling California decision regarding an insured’s pandemic related losses is Inns-by-the-Sea, which held that an insured’s economic losses caused by closure orders did not constitute any physical loss or damage. Because the insured here suffered no district alteration of its property, it was not entitled to coverage.

Rialto Pockets arose under California law and Inns-by-the-Sea was dispositive against the insured because its losses were economic only and not arising from any physical loss or damage.

Palmdale Estates, Inc. v. Blackboard Ins. Co., No. 21-15258 (9th Cir. 5-2-22)

This appeal was governed by Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885 (9th Cir. 2021), and Chattanooga Prof’l Baseball LLC v. Nat’l Cas. Co., No. 20-17422, 2022 WL 171936 at *2 (9th Cir. Jan. 19, 2022), which held that a virus exclusion was applicable barring all the insured’s losses because the insured could not show that the government’s response to the virus in closing businesses was the product of anything other than the virus.

Eleventh Circuit

Henry’s Louisiana Grill, Inc. v. Allied Ins. Co. of Am., No. 20-14156 (11th Cir. 6-3-22)

In a case arising under Georgia law, the Court found that the Georgia Court of Appeals interpreted “direct physical loss of, or damage to” in AFLAC Inc. v. Chubb & Son, Inc., 260 Ga. App. 306, 307 (2003). The term required proof of “an actual change in insured property.” Being “physical” meant that the loss or damage had to make the property “unsatisfactory for future use” or meant that the property would need “repairs” before it would be usable again. So, under Georgia law, “direct physical loss” always involves a tangible change to property. Here, there was no such change and thus no coverage for the insured’s pandemic related economic losses.

Dukes Clothing, LLC v. The Cincinnati Ins. Co., No. 21-11974 (11th Cir. 6-6-22)

In a case arising under Alabama law, the Court found that Alabama courts would agree with its decisions in SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, No. 20-14812, 2022 WL 1421414 (11th Cir. 5-5-22), and Henry’s Louisiana Grill, Inc. v. Allied Ins. Co. of Am., No. 20-14156 (11th Cir. 6-3-22), and hold that the insured’s economic pandemic related losses without any tangible damage to insured property are not covered under a property policy.

Restaurant Group Management, LLC v. Zurich Am. Ins. Co., No. 21-12107 (11th Cir. 6-6-22)

In a case arising under Georgia law, the Court found that its decision in Henry’s Louisiana Grill, Inc. v. Allied Ins. Co. of Am., No. 20-14156 (11th Cir. 6-3-22), resolved the case in the insurer’s favor because there was no coverage for the insured’s pandemic related losses.

Café Int’l Holding Co. v. Westchester Surplus Lines Ins. Co., No. 21-11930 (11th Cir. 5-13-22)

Gio Pizzeria & Bar Hospitality, LLC v. Certain Underwriters, No. 21-12229 (11th Cir. 5-17-22)

Left Field Holdings III v. Colony Ins. Co., No. 12124 (11th Cir. 5-24-22)

Frontier Dev. LLC v. Endurance Am. Specialty Ins. Co., No. 21-13449 (5th Cir. 6-1-22)

The Eleventh Circuit disposed of these appeals in favor of the insurers adhering to SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, No. 20-14812, 2022 WL 1421414 (11th Cir. May 5, 2022). The Court held that intangible or incorporeal losses were excluded from coverage to preclude any claim against a property insurer when the insured merely suffers a detrimental economic impact unaccompanied by a distinct, demonstrable, physical alteration of the property.

First Watch Restaurants, Inc. v. Zurich Am. Ins. Co., No. 21-10671 (11th Cir. 5-24-22)

Royal Palm Optical, Inc. v. State Farm Mut. Auto. Ins. Co., No. 21-11335 (11th Cir. 5-25-22)

Town Kitchen LLC v. Certain Underwriters, No. 21-10992 (11th Cir. 5-27-22)

PF Sunset View LLC et al. v. Atlantic Specialty Ins., No. 21-11580 (11th Cir. 6-2-22)

The Eleventh Circuit disposed of these appeals in favor of the insurers holding that the recent decision by the Florida Court of Appeals in Commodore Inc. v. Certain Underwriters at Lloyd’s London, No. 3D21-0671 (Fla. App. 5-11-22), demonstrated that its decision in SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, No. 20-14812, 2022 WL 1421414 (11th Cir. May 5, 2022), was consistent with Florida law, requiring actual alteration to insured property to trigger coverage.

Learning Point: In my prior reports on COVID-19 appellate decisions, I have provided various “appellate recommendations” for appeals going forward involving these property policy pandemic related claims such as:

—  Stressing the public policy considerations.

—  Stressing the (now nearly) unanimous body of federal and state appellate precedent.

—  Stressing the admonition that once a federal appellate decision is made, future panels in that Circuit should not lightly disregard the prior decision merely because three different judges might be deciding another case.

Based upon my analysis of these recent decisions, I can now make an additional recommendation for all future appeals:

— To rebut any Erie type arguments by insureds that only state appellate tribunals should decide these cases, stress the finding made by the Seventh Circuit in East Coast Entertainment of Durham LLC v. Houston Casualty Co., No. 21-2947 (7th Cir. 4-12-22), that the growing national consensus regarding the meaning of “direct physical loss” underscores that these cases do not turn on variations in state contract law.