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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 9:20-80749-CIV-SMITH

ROYAL PALM OPTICAL, INC., on behalf 

of itself and all others similarly situated,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY and STATE FARM 

FLORIDA INSURANCE COMPANY,

Defendants.

____________________________________

PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF

OPPOSITION TO MOTION TO DISMISS 

Royal Palm Optical, Inc. (“Plaintiff”),1 hereby files this Notice of Supplemental Authority in 

support of Plaintiff’s Opposition (ECF 36) (the “Opposition”) to the Motion to Dismiss (ECF 33) (the 

“Motion to Dismiss”) filed by State Farm Mutual Automobile Insurance Company and State Farm 

Florida Insurance Company (collectively “Defendants” or “State Farm”) and in further opposition to 

the Motion to Dismiss. Plaintiff respectfully files this notice of the following case that supports the 

Opposition: Urogynecology Specialist of Fla. LLC v. Sentinel Ins. Co., Ltd., 2020 WL 5939172 (M.D. 

Fla. Sept. 24, 2020) (attached hereto as Exhibit A). 

Urogynecology, a decision from the Middle District of Florida applying Florida law and 

involving the exact issues raised in the Motion to Dismiss and Opposition—is controlling authority that 

supports Plaintiff’s position. 2020 WL 5939172, at *4 (holding that the plain language of an insurance 

 1 All terms not defined herein shall have the meaning attributed to them in the First Amended Complaint 

(ECF No. 25) (the “Complaint”). All references to “Ex.” refer to Exhibits attached to the Complaint. 

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policy with a virus exclusion, did not unambiguously bar coverage for losses stemming from 

governmental orders related to the COVID–19 pandemic). In Urogynecology, plaintiff’s claim, just 

like Royal Palm’s claim, arose after “the Governor of Florida issued an executive order declaring a 

state of emergency in Florida due to the COVID–19 pandemic.” 2020 WL 5939172, at *1. After this 

order was issued, plaintiff “could not operate as intended [and] [w]hile [p]laintiff’s business was shut 

down, [p]laintiff suffered numerous losses including loss of use of the insured property, loss of business 

income, and loss of accounts receivable.” Id. This is the exact loss that Royal Palm has suffered. 

Complaint ¶¶ 4, 7–10, 60–62, 82. Further, like Royal Palm’s Policy, the Urogynecology plaintiff’s 

insurance policy provided coverage for “direct physical loss” to property and coverage for the loss of 

business income and extra expenses. 2020 WL 5939172 at *1. 

Just as Plaintiff argued in the Opposition, the Urogynecology court held that plaintiff 

successfully stated a claim by alleging “the existence of [an] insurance contract, losses which may be 

covered under the insurance contract, and [the insurer’s] failure to pay for the losses.” Id. at *4. As 

State Farm argues here, defendant Sentinel Insurance Company, Ltd. (“Sentinel”), argued that the 

“plain language” of a virus exclusion (nearly identical to the Virus Exclusion at issue here2

), excluded 

coverage for plaintiff’s losses. Id. at *3. As Plaintiff argued in the Opposition, the Urogynecology

court agreed that the virus exclusion did not unambiguously bar claims which do not stem from the 

presence, growth, proliferation, or spread of a virus. See id. at *4 (emphasis added). Applying Florida 

law regarding the interpretation of insurance policies, the court held that “several arguably ambiguous 

aspects of the Policy make determination of coverage inappropriate at this stage” and specifically found 

that “[d]enying coverage for losses stemming from COVID-19 . . . does not logically align with the 

 2 The virus exclusion at issue in Urogynecology excluded coverage for any loss or damage to property 

caused by “[p]resence, growth, proliferation, spread or any activity of ‘fungi,’ wet rot, dry rot, bacteria 

or virus.” Urogynecology, 2020 WL 5939172, at *3.

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grouping of the virus exclusion with other pollutants such that the Policy necessarily anticipated and 

intended to deny coverage for these kinds of business losses.” Id. 

The Urogynecology court also agreed with Plaintiff’s argument in the Opposition that cases 

applying different policy exclusions are not relevant to the application of a virus exclusion.

Specifically, the Urogynecology court found that cases cited by Sentinel concerning the application of 

“pollution exclusions and sewage backups, damage caused by mold, and claims resulting from illness 

or disease, all of which fell under policy exclusions” did not support application of the virus exclusion

to deny claims stemming from COVID–19 business closures. Id. 

Urogynecology further supports that the Motion to Dismiss should be denied. 

Dated: November 12, 2020 Respectfully Submitted,

/s/ Zachary S. Bower

ZACHARY S. BOWER

Florida Bar No. 17506

zbower@carellabyrne.com

CARELLA, BYRNE, CECCHI,

OLSTEIN, BRODY & AGNELLO, P.C.

Security Building

117 NE 1st Avenue

Miami, Florida 33132-2125

Telephone: (973) 994-1700

JAMES E. CECCHI

jcecchi@carellabyrne.com

CARELLA, BYRNE, CECCHI,

OLSTEIN, BRODY & AGNELLO, P.C.

5 Becker Farm Road

Roseland, New Jersey 07068-1739

Telephone: (973) 994-1700

Darren J. Check

dcheck@ktmc.com

Joseph H. Meltzer

jmeltzer@ktmc.com

Melissa L. Troutner

mtroutner@ktmc.com

Natalie Lesser

Case 9:20-cv-80749-RS Document 51 Entered on FLSD Docket 11/12/2020 Page 3 of 5
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nlesser@ktmc.com

Jordan Jacobson

jjacobson@ktmc.com

KESSLER TOPAZ

MELTZER & CHECK, LLP

280 King of Prussia Road

Radnor, Pennsylvania 19087

Telephone: (610) 667-7706

Facsimile: (610) 667-7056

Attorneys for Plaintiff and the proposed 

classes

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CERTIFICATE OF SERVICE

I hereby certify that on November 12, 2020, the foregoing was electronically filed with the 

Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all 

counsel of record.

/s/ Zachary S. Bower

ZACHARY S. BOWER

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