interruption insurance litigation are in favor of insurance companies and so discourse should follow suit but since in any fails to acknowledge that its policy in this case is different than the policies and in the overwhelming majority of cases it  to or some other variation where those specific terms in that phrase are left undefined specifically last and to policies that included definition of loss in the insur which is the situation before in our case since you have asked this court to group this policy in with all other standard form policies that are being routinely reviewed in analyzed across the country stemming from the cold in  that actually there's that's one of the one of the variable arguments that we're asking this court time dresses that even in the cases that a founded in favor of with policy language like massive difference it that a specific case that says that no i think the argument underlying that is that there's shows why there's ambiguity in the policy that the issue to oral surgeons a couple cases to that ambiguity point i'm where more courts are reviewing these cases and deciding on both sides so there are there are created it by looking at other policies the insurer has issues other to other insurance i thought ambiguity always turned on whether whether the language within the policy considering all of its terms exclusions and so important are are you know have a clear meaning right that the mc do sick so you're saying we can we can run out and say  would so i worked at a house up high i make that point to say that there are they knew that there's alternative language out there in these policies and that the authorities that are being cited on it's really a distinguishing factor your honor so when we look at and a number of these policies and decisions across the country there they're analyzing policies that are different with different language so when we look and that is the reason why the policy before this court is it is well let me ask you this so i know you  say what last does not mean than what it does one mean one problem is that the policy uses the term loss ok define the term loss and then they went into a discussion of of physical loss or physical damage meaning and this is i think the argument that cincinnati and other carriers are arguing that loss and damage mean a couple of things do are they synonyms or do they mean different things dental practice maybe that creates height problems that would be the physical damage so as assume they mean different things i still don't know where that gets you i think that i think that further proves why this policy is ambiguous in saying that if lost means total loss it's the policy itself defined accidental physical loss or accidental physical damage the argument is losses of deprivation of use of that physical premise which was the world surgeons i think she joins loken i'm not hearing you oh i guess i'm i guess we're going to get worse no it could accepting that the you know they're different words so that you would be inclined to give them different meanings and judge drugs just did that and then back to his and you say well that shows that was and i say i'm asking you to go back to his initial question what was the physical damage here the physical damage defined term because they opted to define that oral surgeons argument is that they have removed this policy from some of the trip the traditional policies out there that you're seeing all over the country that included the collective phrase direct physical loss of or damage to and i think i'm going to have you know i'm going to put you on this because i think i think we're all surgeons s suffice as a physical loss an insurance part so they're after the something physical somebody stole a machine somebody there's a brick thrown through a window the you know the roof was damaged in some way i'm just trying to i guess i'm trying to figure out is there anything physical in this case at all in the record at least in my view of the case would support the argument you're making are right well judge at one level this was a motion to dismiss and so it was done before any discovery was taken place i will point to the the complaint in the petition i think paragraph number nine in paragraph twenty one of our complaint suggested that there could be direct physical damage or loss concerning this code in one thousand community spread of as an allegation so and i think that's an interesting point you make because in one of the court and one of the cases that was it was dust i think the point to your question judge is that in that case there was a rule is a motion for summary judgment and there was expert testimony and a large amount of discovery that took place to determine to try to sort through was there physical damage or physical loss that would trigger the coverage under that policy the other additional point of that that policy was different and i think at the end of the day oral surgeons and we argue in our brief and we argue here that the policy that we're looking at is different than was there now to be ask you this which is the argument you're making is there any evidence that people actually showed up at the practice that the the limitations and the virus the virus imposed limitations on paragraph nine they caused caused by the physical damage or loss of the novel coronavirus coleman nineteen  specifically was not alleged judge that a family came to the office i think to that point and and briefly and i'm running to my time where i want to reserve summer for sponsors but i would propose that because discovery hasn't taken place we can't the evidence before the court of whether physical authorization alterations to the property took place hasn't even been determined because as we know was very common in the cove in one thousand there was social distancing of various changes that would have been taking place to properties to to help stop those that coded spread including measures i'm not i'm not saying that that were both we've alleged that that property had to be renovated necessarily but i'm saying that because of orders and and recommendations the local boards that certainly measures were taken on the physical premises of this property to that point you know i'm practically speaking they were you taking temperatures i'm sure for a while there outside of a premise and and that let me ask you this council  policy that at the precise same terms and a lengthy opinion which relied in part of a circuit case so what else was obviously obviously you're telling us that to follow that what's wrong with the  analysis is quite similar absolutely promotional headwear in our view i look to tooth i look to to to counter so that one the court there jump directly to and both verse state farm hell that held that several courts of examine the issue in that case it was based on was i'm running out of time i want to hit this that several courts of examine the very issue similar circumstances and i've reached differing conclusions supports the conclusion of the phrases ambiguous i guess my point have please the court my name is daniel litchfield i represent the defendant now believe the cincinnati insurance company to be sure these are extraordinary times but even in extraordinary times we have the law in the principles of including the law of contracts this is a contract case when read and interpreted as iowa law requires this contract does not supply any coverage fundamentally the petition and i look back at it based on  what we just heard but i'll stand by this fundamentally the petition asserts oral surgeons appointment book dark in places because of the order of the governor they didn't have as many appointments as the ordinarily would have because of the governor's order there's nothing physical about that moreover although i think there was a little bit of an allusion to this idea i see no place in the petition any allegation that the virus was even present on the premises at any time and not that that would be the be all and end all but i just want to make sure that that is clear to be sure we're dealing with insurance contract language here and the operative phrase that the parties are disputing is direct accidental physical loss or accidental physical damage to property the words need to be read together we know that from the basic iowa law on how to read a contract including an insurance contract the words to be read in context i believe that the just of all of oral surgeons arguments including the arguments about the the textual arguments about the policy the gist of those arguments is to find some way to read the word physical out of that phrase and that would be inappropriate and that would be inappropriate based on a long line of iowa cases about how the contract is to be read the  f has raised these arguments about differences in wording between cincinnatus policy and policies issued by other insurers and and we don't think that that is material at all but let me make a couple of points about  assuming for argument's sake that we would only look at cases that address the exact language that is seen in this cincinnati policy in this case as of a couple of hours ago there are now twenty two decisions involving that language and cincinnati insurance company as a defendant that have favored cincinnati that is dismissed complaints based on the absence of direct physical loss or damage to property we have cited a large number of those cases to the court in our brief and the table attached to our brief and our rule twenty eight dollars j supplementation to all of that so those precedents at the very least even assuming for argument's sake that there's any traction to what  oral surgeon is arguing those cases stand as well reasoned precedents and emotional headwear is one of the best reason precedents of all those cases i submit it as a particularly academic and thorough exposition of the issues here now even if one were to look at cases where the policy language is not precisely word for word the same as cincinnati policy language i don't think anybody could disagree that th language in these other policies is substantially similar language is substantially similar because it utilizes in the phrase in these other cases the words physical and law and damage  those are among the words in the phrase at issue in this case and all of those words exist in the cases and the precedents that cincinnati relies on a large number precedents to be sure and counsel acknowledge the iowa law in this area not only includes the generalized law of how to read a contract that i alluded to already but it includes a line of cases that directly address the issue of direct physical loss or damage words to that effect slight differences to be sure and some of the policies but all those key words in the phrases involved in these cases we start with milligan which is an appellate decision from iowa which the holding is the loss of use is not direct physical loss or damage the info group case from the and then a state case called a condom and then add on top of that the district court's decision in this case those cases as a whole are an edifice showing us what iowa law is when we get to the issue of whether loss of use should be insured under a policy written like our policy or in any substantially similar way all of those cases hold in favor of the proposition that cincinnati asserts all of those cases should be seen as highly persuasive and they have a they have a touchstone in both the federal and the state courts which i think is also very powerful and trying to discern what the iowa law is here we're not dealing with in any case to the to the opposite proposition and i think that's also important the iowa law on interpret insurance policies requires that meaning be given to all parts of the policy that we don't excise a word here and there in order to get to an outcome so the word physical has to be accounted for so does the definition of something called the period of restoration greater pressure ration is just  question i'm not familiar with the business interruption coverage in this case is described as secondary to a particular cause and cause of loss and that's the kind of text in which i've encountered it in the past two years do you know if your does your client often offer what i would might call an all risk business interruption coverage i'm not aware of my client offering a standalone business interruption only coverage the coverage i'm familiar with is the one that we see in this case which is it's related to the core coverage for the direct physical lost or damage to property the paradigm would be a fire to go back to just straw says earlier example if you have a complete loss of the building it's going to take the policyholder a period of time to get on there just was just curious and yeah yeah no i can't defend it if we say that they don't but i've represented them for nearly thirty years and i'm not aware of one and i haven't dealt with one stone back to iowa law if we look at all parts of this policy and look at the definition of period of rest of restoration it requires that the period and when there's a rebuilding replacement or repair of the product that fits very nicely with the requirement of physicality physical law or physical damage it doesn't fit at all with the idea that because there's a lessened number of appointments in a medical practice  that there would somehow be coverage when the requirement is for direct physical law or damage counsel mention the national law and i agree the overwhelming majority of cases nationally both before the pandemic and during support cincinnati's position here particularly the pandemic cases frankly i've never seen anything like this that in a year over one hundred precedents of develop and the large vast majority of those favors cincinnati's position here should the court rule for cincinnati instances favor because of the count of cases no not just because of that but it's because of the underlying reason why that count of cases is where it is is where it is because if one is looking at the ordinary meaning of these words and reading them in context and not taking out the word physical and ignoring it because it might be inconvenient to a policyholders one is outcome if one follows those procedures which are basic and in court insurance law state to state in america it's no surprise and should be no surprise to anybody that the case counts so overwhelmingly favors cincinnati as opposed  law and do not apply i along but reading those cases one does not discern a difference in the basic principle of insurance contract law as between minnesota and iowa elucidated by the supreme courts of each state and without a difference in those basic principles i'd submit that it follows logically and naturally that the outcome and source food and pentair with respect to minnesota law  many cases that support cincinnati around the country indeed we cited in the table to our brief combined with our rule twenty eight supplements eighty six overt coverage just in the covert arena alone  that support cincinnatus position here and a large number of those cases cite and rely on source students and care as did promotional headwear these than the nation from coast to coast in florida minnesota and nearly all states in between counsel mention studio four hundred and seventeen as a case that should be followed and we strongly disagree with that proposition there are a number of points to be made here st at the end of the decision studio and seventeen acknowledges that it expects legal developments will come and that those developments could possibly overtake the ruling in studio four hundred and seventeen dollars and boy happy courts have repeatedly been asked as this court is being asked to follow studio four hundred and seventeen and they just don't do it some comment further the bluegrass oral health decision from the western district of kentucky stated that stew for seventeen makes no sense  the legal seafoods case from the district of massachusetts stated that the league that the school year for seventeen case is a an outlier and it's certainly been treated by an outlier as one can see in case after case nd the case is erroneous in that it purports to be relying on to missouri law decision hampton and mail hampton is a decision from this circuit but in hampton there was physical loss or damage to the building it was in collapse and that's a key fact that that ought to be accounted for in whether hampton signals that mere loss of use alone should be covered under a policy like this melts which is from the eastern district of missouri actually involve that should not support studio for seventeen promotional headwear which was mentioned a little bit ago the chief judge of the district kansas who wrote that opinion stated that another problem with the view for seventeen was that it relied on allegations that fail to raise a right of relief above the speculative level and that criticism can be seen running through multiple other cases addressing studio four hundred and seventeen at bottom i don't think it's fair to say that the district court here erred by not following studio four hundred and seventeen when in fact that court's opinion rather than being consistent with an outlier that had these analytical issues the decision in the court below is consistent with the well reasons well developed body of case law both in iowa and nationally and it is it is not appropriate to reach the conclusion that it should have followed studio or seventeen which it was invited to do and chose not to do before argument was alluded to a moment ago and let me address that this is the idea that because the language has direct physical  accidental physical loss or accidental physical damage because the word or is there that somehow that creates a problem for cincinnati it does not the argument being made by oral surgeon seems to assume that  always mean either or but never both but i think there are plus or of examples of that's not the only way to read a phrase where the word or is used there certainly is some separation and it's just stross pointed out there's a there's a distinction between a loss of total loss for the building has gone and damage the brick through the window and that's that's as we suggested in our brief a good understanding of how this phrase ought to be read i recently saw the word or in the process of applying to become a member of of another u s district court bar their rules stated that we should refer to the court as judge or your honor it never occurred to me that that was ambiguous because of the use of the word or or that somebody is a judge i vice a versa i think that the word or makes perfectly good sense as used here but bottom line amicus the american property casualty insurance association presented a lot of data and information about what the implications of the decision here could be to iowans in iowa ensures the district court was correct in its decision and we ask that this court affirm that decision  thank you mr smith the case has been up early briefed and well argued you used up your time but i think we understand i think we understand the issues but i'll give you a minute if you have something to rebut here and i think you actually have a minute comment about the period of restoration and how that i'll move on to i think and as i just talked about earlier the the  cases do not have to be impacted by this case that the policy language before the court here is different than it was in penton source could finally be the public policy implication goes to that the courts are only looking at a pretty narrow policy here and the implications that are supported by emma case are in oral surgeons you are in consequential with that my time's expired and i think you got all for your time