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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

ATMA BEAUTY, INC., individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

HDI GLOBAL SPECIALTY SE, AXIS 

SPECIALTY EUROPE SE, 

UNDERWRITERS AT LLOYD’S LONDON 

SUBSCRIBING TO POLICY NUMBER 

RSK003959, and UNDERWRITERS AT 

LLOYD’S LONDON KNOWN AS 

SYNDICATES AFB 2623, AFB 623, APL 

1969, ARG 2121, BRT 2987, BRT 2988, HIS 

33, KLN 510, MMX 2010, MSP 318, NVA 

2007, TRV 5000, XLC 2003,

Defendants.

Civil Action No.: 1:20-cv-21745-DPG

Judge: Darrin P. Gayles

DEFENDANTS CERTAIN UNDERWRITERS AT LLOYD’S, LONDON SUBSCRIBING 

TO POLICY NO. RSK003959’S MOTION TO DISMISS THE COMPLAINT AND 

INCORPORATED MEMORANDUM OF LAW

Plaintiff in this putative class action, Atma Beauty, Inc. (“Plaintiff”), seeks insurance 

coverage for business interruption related to the COVID-19 pandemic from Defendants HDI 

Global Specialty SE, Underwriter’s at Lloyd’s London Subscribing to Policy Number 

RSK003959, and Underwriters at Lloyd’s London known as Syndicates AFB 2623, AFB 623, 

APL 1969, ARG 2121, BRT 2987, BRT 2988, HIS 33, KLN 510, MMX 2010, MSP 318, NVA 

2007, TRV 5000, and XLC 2003 (“Underwriters”). 

Plaintiff’s Complaint must be dismissed for several reasons:

(1) The insurance policy at issue is a Commercial Property policy that insures Plaintiff’s 

property against direct physical loss or damage. The policy does provide “Business 

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Income” coverage, but in order for that coverage to apply, consistent with the property 

coverage being provided, there must be direct physical loss of or damage to the insured 

property. Plaintiff’s Complaint fails to sufficiently allege that fundamental predicate, 

nor could it ever do so under the alleged circumstances.

(2) The policy also provides Business Income coverage if a civil authority prohibits access 

to insured property because of direct physical damage to nearby property. Again, 

Plaintiff fails to allege direct physical damage to nearby property or that access to the 

insured property has been prohibited by a civil authority because of such direct physical 

damage. 

(3) Even if the policy’s requirements discussed above had been met, coverage is excluded 

by the policy’s microorganism exclusion, which excludes coverage for any claim 

arising directly or indirectly out of a microorganism. The novel Coronavirus, also 

known as SARS-CoV-2, is unquestionably a microorganism. 

(4) Additionally, the policy contains pollution exclusions, which preclude coverage for 

any claim related to substances that pose a threat to human health. Here, Plaintiff’s 

insurance claim arises out of SARS-CoV-2, which poses a threat to human health.

(5) The Complaint fails to sufficiently allege causes of action for breach of contract, as 

Plaintiff provides no supporting facts to support its claim.

Accordingly, Underwriters’ Motion to Dismiss should be granted

I. FACTUAL BACKGROUND

A. THE POLICY

Plaintiff owns and operates a beauty salon and spa named “Atma Beauty” in Miami Beach, 

Florida. Underwriters subscribed to a policy that insures the property on which the beauty salon is 

located. Policy No. RSK003959, issued to Plaintiff, provides coverage for direct physical loss of 

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or damage to the property located at 1874 West Avenue, Miami Beach, Florida 331391(the 

“Property”) effective for the policy period of December 19, 2019, to December 19, 2020 (the 

“Policy”). (Exhibit A).2 

The Policy’s insuring clause provides: 

A. Coverage 

We will pay for direct physical loss of or damage to Covered Property at the 

Premises described in the Declarations caused by or resulting from any Covered 

Cause of Loss. 

(Policy, Exhibit A, Form CP 00 10 10 12, at p. 1 of 16). “Covered Cause of Loss” is defined in 

the Policy as “risks of direct physical loss unless the loss is... excluded... or...limited.” (Policy, 

Exhibit A, Form CP 10 30 06 07, at p. 1 of 10). 

While the Policy does provide coverage for loss of “Business Income,” the loss must also 

arise out of direct physical loss or damage to the insured property as identified in the “declarations” 

page of the Policy. With respect to business income, the Policy’s “Business Income” coverage 

states, in part: 

1. Business Income 

* * *

We will pay for the actual loss of Business Income you sustain due to the 

necessary “suspension” of your “operations” during the “period of restoration”. 

The “suspension” must be caused by direct physical loss of or damage to 

property at premises which are described in the Declarations and for which a 

Business Income Limit of Insurance is shown in the Declarations. The loss or 

damage must be caused by or result from a Covered Cause of Loss. With respect 

to loss or damage to personal property in the open or personal property in a 

vehicle, the described premises include the area within 100 feet of such 

premises.

(Policy, Exhibit A, Form CP 00 30 10 12, at p. 1 of 9) (emphasis added). 

The Policy also provide coverage for “Extra Expense” which is defined, in part, as:

1 The insured property is identified on the Schedule of Locations of the Policy. 

2 The Policy is attached to the Complaint and reattached here for the Court’s convenience.

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2. Extra Expense 

a. Extra Expense means necessary expenses you incur during the “period of 

restoration” that you would not have incurred if there had been no direct 

physical loss or damage to property caused by or resulting from a Covered 

Cause of Loss. 

(Policy, Exhibit A, Form CP 00 30 10 12, at p. 1 of 9) (emphasis added)). As noted above, 

“Business Income” and “Extra Expense” coverages are only provided during the “period of 

restoration” which is defined as: 

... the period of time that:

a. Begins:

(1) 72 hours after the time of direct physical loss or damage for Business 

Income Coverage; or

(2) Immediately after the time of direct physical loss or damage for Extra 

Expense Coverage;

caused by or resulting from any Covered Cause of Loss at the described 

premises; and

b. Ends on the earlier of:

(1) The date when the property at the described premises should be repaired, 

rebuilt or replaced with reasonable speed and similar quality; or

(2) The date when business is resumed at a new permanent location.

(Policy, Exhibit A, Form CP 00 30 10 12, at p. 9 of 9) (emphasis added). In other words, the 

Policy does not provide coverage for business income and extra expense if the loss is caused by 

something other than direct physical loss or damage resulting from a covered cause of loss. And 

coverage is only provided for that time needed to repair, rebuild, or replace the damaged property.

The Policy provides “Civil Authority” coverage but, and again consistent with the 

fundamental principle of a property insurance policy, direct physical loss or damage to property is 

required as the civil authority action must result from damage to property caused by a Covered 

Cause of Loss:

a. Civil Authority

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In this Additional Coverage, Civil Authority, the described premises are 

premises to which this Coverage Form applies, as shown in the Declarations. 

When a Covered Cause of Loss causes damage to property other than property 

at the described premises, we will pay for the actual loss of Business Income 

you sustain and necessary Extra Expense caused by action of civil authority that 

prohibits access to the described premises, provided that both of the following 

apply:

(1) Access to the area immediately surrounding the damaged property is 

prohibited by civil authority as a result of the damage, and the described 

premises are within that area but are not more than one mile from the 

damaged property; and

(2) The action of civil authority is taken in response to dangerous physical 

conditions resulting from the damage or continuation of the Covered Cause 

of Loss that caused the damage, or the action is taken to enable a civil 

authority to have unimpeded access to the damaged property.

Civil Authority Coverage for Business Income will begin 72 hours after the 

time of the first action of civil authority that prohibits access to the described 

premises and will apply for a period of up to four consecutive weeks from the 

date on which such coverage began. 

Civil Authority Coverage for Extra Expense will begin immediately after the 

time of the first action of civil authority that prohibits access to the described 

premises and will end:

(1) Four consecutive weeks after the date of that action; or

(2) When your Civil Authority Coverage for Business Income ends;

whichever is later.

(Policy, Exhibit A, Form CP 00 30 10 12, at p. 2 of 9) (emphasis added).

The Policy contains an endorsement that modifies the Civil Authority coverage. However, 

none of those modifications change the basic coverage requirements of direct physical loss or 

damage to nearby property and a prohibition on access to the insured property because of such 

damage. The Policy modifies the Civil Authority extension as follows:

The following applies to the Additional Coverage – Civil Authority under the 

Business Income (And Extra Expense) Coverage Form, Business Income (Without 

Extra Expense) Coverage Form and Extra Expense Coverage Form:

1. The Additional Coverage – Civil Authority includes a requirement that the 

described premises are not more than one mile from the damaged property. 

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With respect to described premises located in Florida, such one-mile radius 

does not apply.

2. The Additional Coverage – Civil Authority is limited to a coverage period of 

up to four weeks. With respect to described premises located in Florida, such 

four-week period is replaced by a three-week period.

3. Civil Authority coverage is subject to all other provisions of that Additional 

Coverage.

(Policy, Exhibit A, Form CP 01 25 07 08, at p. 2 of 2). Thus, among the requirements to trigger 

civil authority coverage, damage to property must prohibit access to the Property.

The Policy contains certain applicable exclusions. Among those exclusions are the 

microorganism exclusion (Policy, Exhibit A, Form LMA 5018), and broad pollution exclusions 

(Policy, Exhibit A, Form NMA 2340 and Form CP 10 30 06 07, at p. 4 of 10). 

B. THE INSURANCE CLAIM 

On April 2, 2020, Plaintiff submitted a claim seeking recovery for business income loss as 

a result of local and state orders related to COVID-19 (the “Claim”). (Exhibit B, Notice of Loss). 

A short time later, before Underwriters could conduct any investigation into the Claim, Plaintiff 

filed this lawsuit. (Doc. 1). In the Complaint, Plaintiff alleges that

The presence of COVID-19 caused direct physical loss of and/or damage to the 

covered premises...by...damaging the property, denying access to the property, 

preventing customers from physically occupying the property, causing the property 

to be physically uninhabitable by customers, causing its function to be nearly 

eliminated or destroyed, and/or causing suspension of business operations on the 

premises.

(Doc. 1 ¶ 46). The Complaint also alleges that “Plaintiff was forced to suspend business operations 

at the [Property], as a result of COVID-19” and that “[r]elated actions of civil authorities also 

prohibited access to and occupancy of the [Property].” (Id. at ¶ 8). Notably, however, the 

Complaint fails to provide any description of the “direct physical loss and damage”, but instead 

gives an incomplete recitation of the various orders. All the referenced government measures were 

put in place to promote social distancing and slow the spread of COVID-19 by minimizing contact 

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between residents. These orders were not issued as a result of any “direct physical loss of or 

damage” to property, as required under the Policy to trigger coverage. Moreover, the orders did 

not “prohibit access” to the Property, as they only restricted public access to the Property, but did 

not restrict Plaintiff, nor its employees, from entering the premises. 

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency 

of the complaint. Jacobs v. Tempur-Pedic Int’l., Inc., 626 F.3d 1327, 1332-33 (11th Cir. 2010). A 

complaint must include “a short and plain statement of the claim showing that the pleader is 

entitled to relief,” but must allege more than “labels and conclusions,” “formulaic recitation of the 

elements of a cause of action,” or “[t]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements.” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts are not required to accept 

the labels and legal conclusions in the complaint as true. Sinaltrainal v. Coca-Cola Co., 578 F.3d 

1252, 1261 (11th Cir. 2009).

To survive a motion to dismiss, a complaint must contain facts that, when assumed to be 

true, sufficiently “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 

(emphasis added). “A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Id.; see also Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) 

(explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions 

masquerading as facts will not prevent dismissal”). A complaint that does not “contain sufficient 

factual matter, accepted as true, to state a claim . . . plausible on its face” is subject to dismissal. 

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Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (citing Twombly, 550 U.S. 

at 570).

Moreover, “when the allegations of the complaint, however true, could not raise a claim of 

entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure 

of time and money by the parties and the court.” Twombly, 550 U.S. at 558 (citation and quotations 

omitted).

III. ARGUMENT

A. PLAINTIFF’S COMPLAINT FAILS TO ALLEGE DIRECT PHYSICAL 

LOSS OF OR DAMAGE TO PROPERTY COVERED BY THE POLICY 

The Complaint contains no plausible allegations that the Property has suffered “direct 

physical loss or damage.” The Policy provides coverage for business income and extra expense 

losses only if such losses are the result of “direct physical loss of or damage to” the insured 

Property. (Policy, Exhibit A, Form CP 00 30 10 12, at p. 1 of 9). Further, business income and 

extra expense coverages are only provided during the “period of restoration”, which is the time it 

takes to repair, rebuild or replace the Property. (Policy, Exhibit A, Form CP 00 30 10 12, at p. 9 

of 9). Here, there has been no direct physical loss or damage to the Property, as evidenced by the 

fact that there is nothing to repair, rebuild or replace at the Property. 

The plain language of the Policy “requires direct physical loss or damage to the properties 

in order to trigger payment” for a business income loss. See Lubell & Rosen LLC v. Sentinel Ins. 

Co., Ltd., No. 0:16-CV-60429-WPD, 2016 WL 8739330, at *4 (S.D. Fla. June 10, 2016). Florida 

law places the initial burden on an insured seeking to recover under an all-risk policy of proving 

that a loss occurred. See S.O. Beach Corp. v. Great Am. Ins. Co. of New York, 305 F. Supp. 3d 

1359, 1364 (S.D. Fla. 2018), aff’d, 791 F. App’x 106 (11th Cir. 2019). An insured’s pleading must 

sufficiently allege that its losses are covered within a policy’s insuring agreement. See Timber 

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Pines Plaza, LLC v. Kinsale Ins. Co., 192 F. Supp. 3d 1287, 1293 (M.D. Fla. 2016). “A complaint

that does not ‘contain sufficient factual matter, accepted as true, to state a claim . . . plausible on 

its face’ is subject to dismissal.” Id. at 1292 (quoting Am. Dental Ass’n, 605 F.3d at 1289). 

Accordingly, to recover for business income loss, Plaintiff must plead and then prove that 

it sustained damage to property that is insured by its Policy, that the damage was caused by a 

covered cause of loss, and that there was an interruption to its business that was caused by the 

property damage. Dictiomatic, Inc. v. U.S. Fid. & Guar. Co., 958 F. Supp. 594, 602 (S.D. Fla. 

1997); cf. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Texpak Grp. N.V., 906 So. 2d 300, 302 

(Fla. 3d DCA 2005) (holding that business interruption and extra expense losses are covered “only 

if ‘resulting from’ damage or destruction of real or personal property caused by a covered peril.”).

In the Complaint, Plaintiff merely alleges that “COVID-19 caused direct physical loss of and 

damage to [the Property].” (Doc. 1 ¶¶ 77, 87, 97, and 107). Plaintiff also alleges that “[t]he 

presence of COVID-19 caused direct physical loss of and/or damage” to the Property “by, among 

other things, damaging the property, denying access to the property, preventing customers from 

physically occupying the property, causing the property to be physically uninhabitable by 

customers, causing its function to be nearly limited or destroyed, and/or causing the suspension of 

business operations on the premises.” (Doc. 1 ¶ 46). 

Under the federal rules, pleading the bare elements of a claim is insufficient—Plaintiff 

“must include some supporting facts.” N.P.V. Realty Corp. v. Nationwide Mut. Ins. Co., No. 8:11-

CV-1121-T-17TBM, 2011 WL 4948542, at *4 (M.D. Fla. Oct. 17, 2011). Here, Plaintiff makes 

conclusory allegations that it has suffered direct physical damage, but the Complaint is devoid of 

any mention of what physical damage occurred, how the physical damage occurred, and when the 

physical damage occurred. Moreover, Plaintiff appears to assert that the presence of COVID-19 

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somehow inexplicably caused property damage by “denying access to the property” and 

“preventing customers from physically occupying the property." (Doc. 1 ¶ 46). None of Plaintiff’s 

allegations, however, even if taken as true, state a plausible claim that Plaintiff has suffered a 

“direct physical loss or damage” as required to trigger coverage under the Policy. See Timber 

Pines Plaza, LLC v. Kinsale Ins. Co., No. 8:15-cv-1821-T-17TBM, 2016 WL 8943313, at *2 

(M.D. Fla. Feb. 4, 2016) (“[I]t is not sufficient to plead that the Plaintiff has suffered damages in 

the form of ‘direct physical damage to its property.’”). 

The phrase “direct physical loss or damage” “must be given its common meaning.”

Rockhill Ins. Co. v. Northfield Ins. Co., 297 F. Supp. 3d 1279, 1286 (M.D. Fla. 2017). This Court 

has concluded that “[a] direct physical loss ‘contemplates an actual change in insured property 

then in a satisfactory state, occasioned by accident or other fortuitous event directly upon the 

property causing it to become unsatisfactory for future use or requiring that repairs be made to 

make it so.”’ Mama Jo’s, Inc. v. Sparta Ins. Co., No. 17-cv-23362-KMM, 2018 WL 3412974, at 

*9 (S.D. Fla. June 11, 2018) (quoting Healthcare Ctr. of Glendale, Inc. v. State Farm Gen. Ins. 

Co., 187 Cal. App. 4th 766, 779 (2010)). If the property can be cleaned and restored to its original 

function, no covered loss has been suffered. Id. (“cleaning is not considered direct physical loss”). 

The relevant inquiry is whether the structure continues to function. Indeed, “[t]he fact that the 

restaurant needed to be cleaned more frequently does not mean [the plaintiff] suffered a direct 

physical loss or damage.” Id. Furthermore, as stated by the oft-cited Couch on Insurance, and as 

explicitly adopted by this Court: 

The requirement that the loss be “physical,” given the ordinary definition of that 

term, is widely held to exclude alleged losses that are intangible or incorporeal and, 

thereby, to preclude any claim against the property insurer when the insured merely 

suffers a detrimental economic impact unaccompanied by a distinct, demonstrable, 

physical alteration of the property.

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Id. (quoting 10A Couch on Ins. § 148:46 (3d. Ed. West 1998)); see also Port Auth. of N.Y. & N.J. 

v. Affiliated FM Ins. Co., 311 F.3d 226, 235 (3d Cir. 2002) (“In ordinary parlance and widely 

accepted definition, physical damage to property means ‘a distinct, demonstrable, and physical 

alteration’ of its structure.”). 

In the context of a lawsuit seeking injunctive relief against an insurer for business income 

coverage related to COVID-19, one court already found that the disease, and the virus that causes 

it, do not cause physical loss or damage. Teleconference, Order to Show Cause at 4-5, Soc. Life 

Magazine, Inc. v. Sentinel Ins. Co. Ltd., No. 20-CV-3311-VEC (S.D.N.Y. May 14, 2020) 

(Transcript with oral findings attached hereto as Exhibit C). With regard to COVID-19, the Court 

in Soc. Life Magazine noted: “It damages lungs. It doesn’t damage printing presses.” (Id. at 4:25-

5:4). Additionally, another court recently granted summary disposition in favor of an insurer, 

finding there was no coverage for the plaintiff’s COVID-19 related business income loss, since 

there was no direct physical loss of or damage. See Hearing, Motion for Summary Disposition, 

Gavrilides Mgmt. Co. v. Mich. Ins. Co., No. 20-000258-CB (Mich. Cir. Ct. July 1, 2020) (“Plaintiff 

just can’t avoid the requirement that there has to be something that physically alters the integrity 

of the property. There has to be some tangible, i.e. physical damage to the property.”). (Transcript 

with oral findings attached hereto as Exhibit D).3

Moreover, the Policy only provides coverage for business income and extra expense losses 

incurred during the “period of restoration” which begins with the “direct physical loss or damage” 

and ends on the earlier of “(1) The date when the property at the described premises should be 

repaired, rebuilt or replaced . . . or (2) The date when business is resumed at a new permanent 

3 Plaintiff attempts to argue that the presence of COVID-19 somehow caused “direct physical loss of and/or damage” 

to the Property, by “causing the property to be physically uninhabitable” and “causing its function to be nearly 

eliminated or destroyed. Such creative interpretations fail as this Court, in Mama Jo’s, rejected the notion that loss of 

use equates to physical damage. Mama Jo’s, 2018 WL 3412974, at *9. 

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location.” (Policy, Exhibit A, Form CP 00 30 10 12, at p. 9 of 9). Thus, it follows that for there to 

be coverage under the Policy’s business income or extra expense coverage, Plaintiff’s loss must 

involve some physical damage to covered property that needs to be repaired, rebuilt, or replaced. 

As explained by the Southern District of New York, “the words ‘repair’ and ‘replace’ contemplate 

physical damage to the insured premises as opposed to loss of use of it.” Newman Myers Kreines 

Gross Harris, P.C. v. Great N. Ins. Co., 17 F. Supp. 3d 323, 332 (S.D.N.Y. 2014) (citations 

omitted); see also Phila. Parking Auth. v. Fed. Ins. Co., 385 F. Supp. 2d 280, 287 (S.D.N.Y. 2005) 

(‘“Rebuild,’ ‘repair’ and ‘replace’ all strongly suggest that the damage contemplated by the Policy 

is physical in nature.”).

Any other reading of the Policy to allow recovery for Plaintiff’s Claim would render 

central contract terms superfluous. Under Florida law, “insurance contracts are construed 

according to their plain meaning.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 

532 (Fla. 2005). Further, “courts must not construe insurance policy provisions in isolation, but 

instead should read all terms in light of the policy as a whole, with every provision given its full 

meaning and operative effect.” Office Depot, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 

734 F. Supp. 2d 1304, 1314 (S.D. Fla. 2010) (citations omitted). Courts may not “rewrite contracts, 

add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” 

Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998). 

Thus, under the plain language of the Policy, coverage is only afforded for business income 

and extra expense losses if those losses are caused by direct physical loss or damage. Here, 

Plaintiff’s Claim is solely economic in nature and does not relate to any sort of physical damage, 

and, therefore, is not covered under the Policy. See Bahama Bay II Condo. Ass’n, Inc v. United 

Nat’l Ins. Co., 374 F. Supp. 3d 1274, 1278 (M.D. Fla. 2019) (“cost of security guards and security 

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fencing . . . is not property damage, or ‘physical loss . . .’ but is an economic loss. There is nothing 

in the Policy that covers economic loss.”); see also Exhibit C, Order to Show Cause at 15 (“[T]his 

kind of business interruption needs some damage to the property . . . this is just not what’s covered 

under these insurance policies.”).

Accordingly, Plaintiff’s Complaint does not allege any facts that trigger coverage under 

the Policy and its claims fail as a matter of law. 

B. PLAINTIFF HAS NOT PLED A VALID CIVIL AUTHORITY CLAIM 

As the basis for its civil authority claim, Plaintiff points to governmental orders issued by 

the State of Florida, Miami-Dade County, and the City of Miami Beach throughout the months of 

March and April 2020. (Doc. 1 ¶¶ 39-45). On March 1, 2020, Florida Governor Ron DeSantis 

issued Executive Order 20-51 directing the State Health Officer and Surgeon General to declare a 

public health emergency. (Exhibit E, Florida Executive Order 20-51).4 Then, on March 9, 2020, 

Governor DeSantis issued Executive Order 20-52, declaring a state of emergency. (Exhibit F, 

Florida Executive Order 20-52). On March 12, 2020, the City of Miami Beach also declared a 

State of Emergency. (Doc. 1 ¶ 41; Exhibit G, City of Miami Beach Declaration of State of 

Emergency). 

The City of Miami Beach then issued an emergency order on March 16, 2020, requiring 

non-essential business to limit their hours of operation and occupancy. (Exhibit H, City of Miami 

Beach Emergency Order March 16, 2020). On March 18, 2020, the City of Miami Beach issued 

another emergency order, requiring message therapy centers and spas to be “closed to the public.” 

(Exhibit I, City of Miami Beach Emergency Order March 18, 2020). On March 19, 2020, Miami4 These government orders are a matter of public record. When ruling on a motion to dismiss, a district court may 

consider evidence if its authenticity is a matter of public record. See Myers v. Foremost Ins. Co., No. 8:15-CV-1363-

MSS-JSS, 2015 WL 12830477, at *3 (M.D. Fla. Oct. 23, 2015) (citing SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 

600 F.3d 1334, 1337 (11th Cir. 2010)).

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Dade County issued Emergency Order 07-20, requiring the closure of all non-essential businesses. 

(Doc Exhibit J, Miami-Dade Emergency Order 07-20). Beauty salons were not deemed essential 

businesses. (See id.). 

On March 30, 2020, Governor DeSantis issued Executive Order 20-89, requiring MiamiDade, Broward, Palm Beach, and Monroe Counites to “restrict public access” to non-essential 

businesses pursuant to the guidelines established by Miami-Dade County Emergency Order 07-

20. (Doc. 1 ¶ 44; Exhibit K Florida Executive Order 20-89). On April 23, the City of Miami Beach 

extended the State of Emergency declaration. (Doc. 1 ¶ 41; Exhibit L, City of Miami Beach 

Declaration of State of Emergency Extended). Plaintiff alleges that the City of Miami Beach 

extended the State of Emergency, allegedly in part because of “the propensity of COVID-19 to 

‘caus[e] property loss and damage in certain circumstances.’” (Doc. 1 ¶ 41). However, the 

Emergency Order does not state it was issued in response to any property damage, but was issued 

to “take immediate action to control and reduce threats associated with the COVID-19 [sic], to 

protect the public health, safety and welfare of the people of the City of Miami Beach.” (Exhibit 

L). In fact, none of the above-referenced orders were issued as a result of any “direct physical loss 

of or damage” to property, nor did the orders “prohibit access” to the Property for Plaintiff or its 

employees.

Plaintiff’s allegations fail to trigger the Policy’s civil authority coverage. In Florida, the 

“policyholder bears the initial burden of proving that a loss occurred under the insuring agreement 

during the policy period.” Somethings Fishy Enter., Inc. v. Atl. Cas. Ins. Co., 415 F. Supp. 3d 1137, 

1142 (S.D. Fla. 2019). The civil authority coverage requires physical loss or damage to property 

near the insured property, and further requires that access to the insured property is prohibited 

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because of that damage.5 Plaintiff’s effort to obtain civil authority coverage fails because (1) it 

alleges no such physical loss or damage, and (2) access to the Property has never been prohibited.

In the Complaint, Plaintiff alleges that “the presence of COVID-19 caused direct physical 

loss of and/or damage to covered premises under the Policy.” (Doc. 1, ¶ 46). Plaintiff argues that 

the orders of Mayor Gimenez, Governor DeSantis, and the City of Miami Beach trigger the “Civil 

Authority” coverage under its Policy. (See Doc. 1, ¶ 118). As noted above, the civil authority 

coverage requires that a “Covered Cause of Loss causes damage to property other than property at 

the described premises.” A “Covered Cause of Loss” is defined as “risk of direct physical loss.” 

Accordingly, the first requirement of the civil authority coverage is that there be direct physical 

loss that causes damage to property other than the insured property. Next, because of that damage 

to nearby property, a civil authority must prohibit access to the insured property. The action of the 

civil authority must also be “taken in response to dangerous physical conditions resulting from the 

damage or continuation of the Covered Cause of Loss that caused the damage.” (Policy, Exhibit 

A, Form CP 00 30 10 12, at p. 2 of 9). In other words, because of direct physical loss that causes 

damage to other property, the civil authority must prohibit access to the insured location because 

the nearby property damage has created a dangerous condition. Plaintiff fails to sufficiently allege 

these necessary elements. 

The plain language of the Policy makes clear that the civil authority coverage requires 

damage to property other than the described premises and an order of civil authority prohibiting 

access to the insured’s property because of such damage. See, e.g., Dickie Brennan & Co. v. 

Lexington Ins. Co., 636 F.3d 683, 686-87 (5th Cir. 2011) (“Civil authority coverage is intended to 

5 Plaintiff may contend that the Policy’s language does not require the damaged property to be near the insured 

premises. Even if this were true, Plaintiff’s civil authority claim fails because it does not allege direct physical loss or 

damage to any property, near or far.

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apply to situations where access to an insured’s property is prevented or prohibited by an order of

civil authority issued as a direct result of physical damage to other premises in the proximity of 

the insured’s property.”). As explained above, COVID-19 does not cause physical damage or loss 

to property, and therefore, Plaintiff cannot satisfy the conditions of the civil authority coverage 

extension. Even looking beyond that shortcoming, there are two more reasons why Plaintiff cannot 

fulfill the conditions of the civil authority coverage extension: (1) access to the Property has not 

been “prohibited;” and (2) the subject government orders were not taken “in response” to damaged 

property.

While the subject government orders prohibited Plaintiff from allowing customers into the 

Property for business purposes, no government order prevented Plaintiff itself, or its employees, 

from entering the Property. Although Florida courts do not appear to have considered the issue, 

numerous other courts have recognized that government orders that hamper access to insured 

property—but do not entirely prohibit it— are insufficient to trigger civil authority coverage. See, 

e.g., S. Hosp., Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1140 (10th Cir. 2004) (upholding denial 

of hotel operators’ claim for lost business income sustained when customers cancelled visits due 

to order grounding of flights after the 9/11 attacks); Kean, Miller, Hawthorne, D’Armond 

McCowan & Jarman, LLP v. Nat’l Fire Ins. Co. of Hartford, No. 06-770-C, 2007 WL 2489711, 

at *1 (M.D. La. Aug. 29, 2007) (holding that civil authority provision was not triggered by 

Louisiana government order prior to Hurricane Katrina advising residents to stay off the streets 

because advisories did not “prohibit access” to the insured premises); By Dev. Inc. v. United Fire 

& Cas. Co., No. Civ. 04-5116, 2006 WL 694991, at *6 (D.S.D. Mar. 14, 2006) (finding that road 

closures after wildfire did not prohibit access to insured’s business); 54th Street Partners v. Fid. & 

Guar. Ins. Co., 305 A.2d 67, 67 (N.Y. Super. Ct. App. Div. 2003) (holding that civil authority 

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extension did not apply to insured who made lost business income claim due to city government’s 

diversion of vehicular and pedestrian traffic in the proximity of its restaurant, because access to 

the restaurant was not denied). Since the civil authority extension requires Plaintiff to demonstrate 

that access to its Property was “prohibited” by civil authority, and Plaintiff did not make any such 

allegations (nor indeed could it), the civil authority extension does not apply.

Second, the subject government orders were not issued “in response” to dangerous physical 

conditions resulting from physical property damage to nearby property. Rather the orders were 

issued as precautionary measures to prevent the further spread of COVID-19. In such situations, 

the civil authority extension is not triggered. See Syufy Enter. v. Home Ins. Co. of Ind., No. 94-

0756 FMS, 1995 WL 129229 (N.D. Cal. Mar. 21, 1995). As detailed in Syufy, after the return of 

the Rodney King verdict and subsequent riots, the cities of Los Angeles, San Francisco, and Las 

Vegas imposed dawn-to-dusk curfews. Id. at *1. An insured movie theater operator, who ran 

theaters in all three cities, submitted a business interruption claim because it closed its theaters 

during these curfew periods. Id. The court concluded there was no civil authority coverage because 

not only did the civil orders not specifically prohibit individuals from entering the theaters, but the 

“requisite causal link between damage to adjacent property and denial of access to a Syufy theater 

[was] absent.” Id. at *2. In other words, Syufy had closed its theaters as a “direct result of the citywide curfews,” not as a result of adjacent property damage. Furthermore, the court noted that even 

though the curfews were imposed to “prevent” property damage, they were not the result of the 

damage itself. Id. at *2. Other courts have reached similar conclusions. See United Airlines, Inc. 

v. Ins. Co. of State of Pa., 385 F. Supp. 2d 343, 353 (S.D.N.Y. 2005) (holding civil authority 

coverage did not apply to airport’s business interruption claim arising from grounding of flights 

after the 9/11 attacks because the order to ground flights and bar access to the airport was “to 

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prevent further attacks and as a matter of national security,” not because of damage to the 

Pentagon); City of Chi. v. Factory Mut. Ins. Co., No. 02-C-7023, 2004 WL 549447, at *4 (N.D. 

Ill. Mar. 18, 2004) (“The business interruption . . . was due to the ground stop order imposed by 

the FAA in order to prevent further terrorist attacks.”); cf. Prime Alliance Grp., Ltd. v. Hartford 

Fire Ins. Co., No. 06-22535-CIV-UNGARO, 2007 WL 9703576, at *4 (S.D. Fla. Oct. 19, 2007) 

(“[A] plain language reading of this section provides coverage when a peril—such as a 

windstorm—causes damage to property and, as a result, access to property is precluded by a civil 

authority order. The order of civil authority cannot in any reasonable manner be construed as a 

‘peril.’”).

Plaintiff cannot establish that physical damage occurred due to COVID-19, nor can it 

establish that the government orders prohibited access to the Property. Moreover, these 

government orders were not taken in response to covered physical damage but were instead 

preventative measures issued for public health purposes. Accordingly, the Policy’s civil authority 

coverage extension is not triggered. 

C. COVERAGE IS BARRED BY THE MICROORGANISM EXCLUSION

The Complaint must be dismissed because Plaintiff’s Claim is excluded from coverage by 

the plain language of the Policy. When resolving insurance coverage disputes, courts “routinely 

dismiss complaints for failure to state a claim when a review of the insurance policy and the 

underlying claim for which coverage is sought unambiguously reveals that the underlying claim is 

not covered.” Cammarota v. Penn-Am. Ins. Co., No. 17-CV-21605-Williams, 2017 WL 5956881, 

at *2 (S.D. Fla. Nov. 13, 2017); see also Arias-Bonello v. Progressive Select Ins. Co., No. 0:17-

CV-60897-UU, 2017 WL 7792704, at *5 (S.D. Fla. Aug. 8, 2017) (dismissing putative class 

member’s breach of contract claims because the claims were expressly excluded from the policy);

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MJCM, Inc. v. Hartford Cas. Ins. Co., No. 8:09-CV-2275-T-17TBM, 2010 WL 1949585, at *7 

(M.D. Fla. May 14, 2010) (granting motion to dismiss under Rule 12(b)(6) because underlying 

lawsuit was not covered under the subject insurance policy). Here, even if Plaintiff could 

demonstrate a claim within the Policy’s coverage grant (which it cannot), coverage nonetheless is 

barred by the Microorganism Exclusion.

The Microorganism Exclusion provides:

This policy does not insure any loss, damage, claim, cost, expense or other sum 

directly or indirectly arising out of or relating to:

mold, mildew, fungus, spores or other micro-organisms of any type, nature, 

or description, including but not limited to any substance whose presence 

poses an actual or potential threat to human health.

This exclusion applies regardless whether there is (i) any physical loss or damage 

to insured property; (ii) any insured peril or cause, whether or not contributing 

concurrently or in any sequence; (iii) any loss of use, occupancy, or functionality; 

or (iv) any action required, including but not limited to repair, replacement, 

removal, cleanup, abatement, disposal, relocation, or steps taken to address medical 

or legal concerns.

This exclusion replaces and supersedes any provision in the policy that provides 

insurance, in whole or in part for these matters.

(Policy, Exhibit A and B, Form LMA 5018). As set forth below, SARS-CoV-2, which causes 

COVID-19 is a microorganism. Therefore, the plain language of this exclusion bars Plaintiff’s 

Claim, which directly or indirectly arises from SARS-CoV-2. 

Florida law requires that the Microorganism Exclusion be applied as written. See Taurus 

Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (“[I]f a policy provision 

is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy 

provision or an exclusionary provision”). Stated differently, when interpreting unambiguous 

policy terms, “there is no special construction or interpretation required, and the plain language of 

the policy will be given the meaning it clearly expresses.” Phila Indem. Ins. Co. v. Yachtsman’s 

Inn Condo Ass’n, Inc., 595 F. Supp. 2d 1319, 1323 (S.D. Fla. 2009). 

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The only two jurisdictions to have substantively addressed similar microorganism 

exclusions, with one being a Florida circuit court, both found the exclusion to be valid and 

enforceable. See Certain Underwriters at Lloyd’s of London Subscribing to Policy No. SMP 3791 

v. Creagh, 563 F. App’x 209, 211 (3d Cir. 2014) (holding that the district court correctly applied 

the microorganism exclusion to the plaintiff’s claim); Certain Underwriters at Lloyd’s, London 

Subscribing to Policy No. W15F03160301 v. Houligan’s Pub & Club, Inc., No. 2017-31808-CICI, 

2019 WL 5611557, at *11 (Fla. Cir. Ct. Oct. 24, 2019) (concluding that “the Microorganism 

Exclusion bars coverage for the claims in this case”). In Creagh, the insured’s claim arose after a 

tenant of its building died and the decomposition of the tenant’s body damaged his apartment unit. 

Creagh, 563 F. App’x at 209. The United States District Court for the Eastern District of 

Pennsylvania held that the subject microorganism exclusion applied because the fluids that 

escaped the tenant’s body and contaminated the unit contained bacteria, which are 

microorganisms. See Certain Underwriters at Lloyd’s London v. Creagh, No. 12-571, 2013 WL 

3213345, at *3 (E.D. Pa. June 26, 2013). The Third Circuit upheld the decision on appeal. Creagh, 

563 F. App’x at 211.

A Florida circuit court similarly recognized the unambiguous nature and enforceability of 

microorganism exclusions in the Houligan’s case. In Houligan’s, an insured suffered damage 

when its building was flooded with sewage and waste following a hurricane. Houligan’s, 2019 

WL 5611557, at *1. In applying the microorganism exclusion to the plaintiff’s claim, the 

Houligan’s court stated:

For better or worse, the parties bargained for an insurance policy that contains an 

extremely broad Microorganism Exclusion, one which supersedes and replaces any 

language in the Policy that might otherwise provide coverage for the loss in 

question. As noted, the exclusion applies even in the presence of an insured peril 

or cause that contributes concurrently to the insureds’ loss. This Court must apply 

the Policy in a manner consistent with its plain language. Doing so leads the Court 

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to conclude that the Microorganism Exclusion bars coverage for the claims in this 

case.

Id. at *11. Significantly, the Houligan’s court looked to the Center for Disease Control’s website 

and dictionary definitions to find that E. Coli and enterococcus, both of which were present in the 

sewage and waster, are bacteria, and thus, microorganisms that cause an actual or potential threat 

to human health. Id. The decision in Houligan’s provides a legal roadmap for this Court because 

SARS-CoV-2 is a microorganism that causes an actual or potential threat to human health, and 

any claim arising out of SARS-CoV-2, regardless of whether physical damage occurred or whether 

there is some other contributing or concurrent cause, is therefore excluded from coverage. 

Secondary sources, like those relied upon by the Houligan’s court, support a determination 

that SARS-CoV-2 is a microorganism. No less than the foremost U.S. governmental authorities in 

the fight against COVID-19—the U.S. Department of Health and Human Services, National 

Institutes of Health and National Institute of Allergy and Infectious Diseases—defined 

microorganism as “microscopic organisms, including bacteria, viruses, fungi, plants, and 

animals.”6 This is consistent with the findings of other governmental agencies.7 Adding additional 

support, scientific journals and textbooks also state that viruses are microorganisms.8 Even nonscientific sources such as Encyclopedia Britannica, for instance, lists the following “major groups 

of microorganism”: bacteria, archaea, fungi, algae, protozoa, and viruses.9

6

 Understanding Microbes in Sickness and in Health, U.S. DEP’T OF HEALTH & HUMAN SERVS., NAT’L INST. OF 

HEALTH 47 (Jan. 2006) (Attached hereto as Exhibit M).

7

 What is a Microorganism? NAT’L PARK SERV., U.S. DEP’T OF INTERIOR, 2 (April 2014), 

https://www.nps.gov/common/uploads/teachers/lessonplans/What%20is%20a%20Microorganism%20Activity%20

Guide2.pdf (listing viruses as one of the five categories of microorganisms).

8

 See, e.g., Wendy Keenleyside, MICROBIOLOGY: CANADIAN EDITION, § 1.3 (June 23, 2019) (“Viruses are acellular 

microorganisms.”); Kathryn Nixdorff, et al., Critical Aspects of Biotechnology in Relation to Proliferation, 150 NATO 

SCI. SERIES II: MATHEMATICS PHYSICS & CHEMISTRY, 33, 33 (2004) (“Viruses are microorganisms”).

9

 See Types of Microorganisms, ENCYCLOPEDIA BRITANNICA (last visited May 6, 2020), 

https://www.britannica.com/science/microbiology/Types-of-microorganisms.

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As a result, the Microorganism Exclusion unambiguously excludes coverage for the 

Plaintiff’s Claim.

D. COVERAGE IS BARRED BY THE POLLUTION EXCLUSIONS

In addition to the Microorganism Exclusion, the Policy contains two enforceable 

exclusions barring coverage for contaminants and contamination. First, the Policy contains the 

Seepage and/or Pollution and/or Contamination Exclusion, which provides:

SEEPAGE AND/OR POLLUTION AND/OR CONTAMINATION EXCLUSION

USA & CANADA

Notwithstanding any provisions to the contrary within the Policy of which this 

Endorsement forms part (or within any other Endorsement which forms part of this 

Policy, this Policy does not insure:

(a) any loss, damage, cost or expense, or

(b) any increase in insured loss, damage, cost or expense, or

(c) any loss, damage, cost, expense, fine or penalty, which is incurred, sustained or 

imposed by order, direction, instructions or request of, or by agreement with, 

any court, government agency or any public, civil or military authority, or threat 

thereof, (and whether or not as a result of public or private litigation.)

which arises from any kind of seepage or any kind of pollution and/or 

contamination, or threat thereof, whether or not caused by or resulting from a Peril 

Insured, or from steps or measures taken in connection with the avoidance, 

prevention, abatement, mitigation, remediation, clean-up or removal of such 

seepage or pollution and/or contamination or threat thereof.

* * *

The term ‘any kind of seepage or any kind of pollution and/or contamination’ as 

used in this Endorsement includes (but not limited to):

(a) seepage of, or pollution and/or contamination by, anything, including but not 

limited to, any material designated as ‘hazardous material’ by the United States 

Environmental Protection Agency or as ‘hazardous material’ by the United 

States Department of Transportation, or defined as a ‘toxic substance’ by the 

Canadian Environmental Protection Act for the purposes of Part II of that Act, 

or any substance designated or defined as toxic, dangerous, hazardous or 

deleterious to persons or the environment under any Federal, State, Provincial, 

Municipal or other law, ordinance or regulation; and

(b) the presence, existence, or release of anything which endangers or threatens to 

endanger the health, safety or welfare of persons or the environment.

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(Policy, Exhibit A, Form NMA 2340).10 The Policy also contains the following exclusion, which 

states:

2. We will not pay for loss or damage caused by or resulting from any of the 

following:

* * *

l. Discharge, dispersal, seepage, migration, release or escape of “pollutants” 

unless the discharge, dispersal, seepage, migration, release or escape is itself 

caused by any of the “specified causes of loss.” But if the discharge, 

dispersal, seepage, migration, release or escape of “pollutants” results in a 

“specified cause of loss”, we will pay for the loss or damage caused by that 

“specified cause of loss.”

(Policy, Exhibit A, Form CP 10 30 06 07, at p. 4 of 10). The term “pollutant” is defined, in part, 

as “any solid, liquid gaseous or thermal irritant or contaminant, including smoke, vapor, soot, 

fumes, acids, alkalis, chemicals and waste.” (Policy, Exhibit A, Form CP 00 10 10 12, at p. 16 of 

16). Under the plain language of either of these exclusions (collectively, the “Pollution 

Exclusions”), and Florida law, coverage for the Claim is excluded.

The Florida Supreme Court has recognized that pollution exclusions extend beyond merely 

“environmental or industrial pollution.” Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. 

Co., 711 So. 2d 1135, 1138 (Fla. 1998) (holding that a claim arising from an ammonia spill fell 

within a pollution exclusion). Instead, the plain language of pollution exclusions should be 

enforced as written and Florida courts should not “place limitations upon the plain language of a 

policy exclusion simply because [they] may think it should have been written that way.” Id. at 

1139. This includes the term “contaminant,” which the Florida Supreme Court held to be 

unambiguous. See id.

SARS-CoV-2 undoubtedly qualifies as a “pollutant” and/or “contamination.” The Southern 

District of Florida has recognized that “living organisms,” “microbial populations,” “microbial 

10 Notably, the “pollutant/contamination” exclusion applies “[n]otwithstanding any provision to the contrary” and it 

does not replace or supersede any similar provisions. 

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contaminants,” and “indoor allergens” fit the ordinary definition of a “contaminant.” Nova Cas. 

Co. v. Waserstein, 424 F. Supp. 2d 1325, 1334 (S.D. Fla. 2006). In Nova, this Court reasoned that 

these substances “infected the plaintiffs’ bodies or made them impure by contact, thereby fitting 

the ordinary meaning of a ‘contaminant,’ and having an effect commonly known as 

‘contamination.’” Id. Relatedly, this Court has enforced a pollution exclusion to exclude coverage 

for a claim arising from “viral contaminants” and “harmful microbe[s]” found in an insured’s 

swimming pool, from which a guest alleged that he contracted the Coxsackie virus. See First 

Specialty Ins. Corp. v. GRS Mgmt. Assocs., Inc., No. 08-81356-CIV, 2009 WL 2524613, at *4-5 

(S.D. Fla. Aug. 17, 2009); see also James River Ins. Co. v. Epic Hotel, LLC, No. 11-CV-24292-

UU, 2013 WL 12085984, at *4 (S.D. Fla. Jan. 9, 2013) (applying pollution exclusion to bar 

coverage for claims arising from Legionnaire bacteria). Other courts have reached analogous 

conclusions. See, e.g., U.S. Fire Ins. Co. v. City of Warren, 87 F. App’x 485, 487, 490 (6th Cir. 

2003) (applying a pollution exclusion to sewage water that was alleged to contain “pathogens, 

carcinogens, and disease carrying organisms including but not limited to HIV viruses, e. coli

bacteria, hepatitis (all strains), and other bacteria”); Certain Underwriters at Lloyd’s London v. 

B3, Inc., 262 P.3d 397, 400-401 (Okla. Ct. App. 2011) (holding a pollution exclusion applied to 

claim stemming from contaminated water alleged to contain, among other things, “bacteria 

(including E. Coli) [and] viruses”).

The Policy’s definitions of “contamination” and “pollutant” unambiguously encompass 

SARS-CoV-2. Just as this Court reasoned in Nova, SARS-CoV-2 is a virus that infects peoples’ 

bodies, thereby fitting the ordinary meaning of “contaminant.” Nova Cas. Co. 424 F. Supp. 2d at 

1334.11 Similarly, under pollution exclusions like the Policy’s “pollution exclusion,” claims 

11

 To be sure, COVID-19 is a disease caused by the virus SARS-CoV-2. Alexander E. Gorbalenya et al., The species 

Severe acute respiratory syndrome-related coronavirus: classifying 2019-nCoV and naming it SARS-CoV-2, 6

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stemming from viruses are precluded from coverage under such exclusions, as demonstrated by 

this Court’s decision in First Specialty Ins. Corp. See 2009 WL 2524613, at *4-5. SARS-CoV-2

has been “designated or defined” as “dangerous” by both Federal and State ordinances or 

regulations. Indeed, the U.S. Department of Health and Human Services has determined that the 

“SARS coronavirus” (SARS-CoV), to which COVID-19 is related,12 is a “biological agent . . . and 

toxin” with “the potential to pose a severe threat to public health and safety.” 42 C.F.R. § 73.3(a) 

& (b) (2017). Moreover, in the subject executive orders issued by Governor DeSantis, the 

Governor stated that he is “responsible for meeting the dangers presented to this state and its 

people by [COVID-19].” (Exhibit F (emphasis added)); see also Exhibit K). Thus, SARS-CoV-2

has been defined as dangerous to human health by both the federal government and government 

of Florida.

Having established that SARS-CoV-2 qualifies as a pollutant and/or contaminant under the 

Policy and Florida law, the Pollution Exclusions clearly apply, given that they exclude coverage 

for claims “arising from” or “resulting from” pollution and/or contamination. (Policy, Exhibit A, 

Form NMA 2340; Form CP 10 30 06 07, at p. 4 of 10). Causation phrases such as these are broadly 

construed in Florida. See Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 

NATURE MICROBIOLOGY 526, 526 (March 2, 2020). Continuing, this Court has repeatedly considered at the motion to 

dismiss stage secondary sources such as scholarly articles. See Jones v. Santander Consumer USA Inc., No. 16-14012-

CIV-ROSENBERG/LYNCH, 2016 WL 11570406, at *3 (S.D. Fla. Aug. 2, 2016) (listing secondary sources that 

conflict with argument in motion to dismiss); Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1371 n. 1 (S.D. Fla. 

2015) (incorporating numerous secondary sources cited in Rule 12(b)(6) motion to dismiss); cf. Aldar Tobacco Grp., 

LLC v. Am. Cigarette Company, Inc., No. 08-62018-CIV-JORDAN, 2010 WL 11601994, at *1 (S.D. Fla. Dec. 29, 

2010) (admonishing attorney for citing “zero cases, statutes, codes, or secondary sources in his motion to dismiss) 

(emphasis added). Ultimately, this Court has “complete discretion” to accept material beyond the pleadings when 

considering a motion to dismiss. Continental Cas. Co. v. Hardin, No. 8:16-cv-322-17GW, 2016 WL 11234458, at *11 

(M.D. Fla. Dec. 5, 2016). 

12 See COVID-19, MERS & SARS, NAT’L INST. OF ALLERGY & INFECTIOUS DISEASES (April 6, 2020), 

https://www.niaid.nih.gov/diseases-conditions/covid-19; Alping Wu, et al., Genome Composition & Divergence of 

the Novel Coronavirus (2019-nCov) Originating in China, Commentary, 27 Cell Host & Microbe 325, 326 (Mar. 11, 

2020) (“[T]he 2019-nCov is in the same Betacoronavirus clade as MERS-CoV, SARS-like bat CoV, and SARSCoV.”).

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(Fla. 2005) (holding that causation phrase “arising out of” is broader than “caused by” as used in 

an exclusion). Moreover, Plaintiff asserts that its Claim was the result of “COVID-1913 caus[ing] 

direct physical loss of and damage to [Plaintiff] and other Class members’ insured premises, 

resulting in suspension[] of business operations at these premises.” (Doc. 1, ¶ 77). Accordingly, 

the Claim as alleged arose from or resulted from SARS-CoV-2 and is excluded from coverage 

under the Policy.

E. COUNTS II, IV, AND VI FAIL TO ALLEGE UNDERWRITERS HAVE 

BREACHED THE POLICY 

Plaintiff has not stated valid claims for breach of contract. To sufficiently plead a claim for 

breach of contract under Florida law, a plaintiff “must assert the existence of a contract, a breach 

of such contract, and damages resulting from such breach.” Cruz v. Underwriters at Lloyd's 

London, No. 8:14-CV-1539-T-33TBM, 2014 WL 3809179, at *2 (M.D. Fla. Aug. 1, 2014). While 

Plaintiff’s 131-paragraph Complaint sets forth an expansive background facts section, it fails to 

allege specific facts supporting its claims of breach in Counts II, IV, and VI. 

Plaintiff alleges that “[b]y denying coverage” Underwriters “are in breach of the Policy” 

and conclusory alleges that its alleged losses trigger the Policy’s business income, civil authority, 

and extra expense coverages. (Doc. 1 ¶¶ 90, 110, 130). However, Plaintiff fails to include necessary 

factual information to support these claims. These allegations are wholly conclusory and must, 

therefore, be dismissed. See Whitney Nat. Bank v. SDC Communities, Inc., No. 

809CV01788EAKTBM, 2010 WL 1270264, at *3 (M.D. Fla. Apr. 1, 2010) (dismissing claims for 

breach of contract because plaintiff failed to allege sufficient factual information to support its 

claims); Davidson v. Georgia, 622 F.2d 895, 897 (11th Cir. 1980) (“When the allegations 

13 As discussed above, COVID-19 is the disease caused by SARS-CoV-2. The virus, SARS-CoV-2, does not cause 

direct physical loss of or damage to property for the reasons discussed above, and the disease that it causes of course 

does not also cause such damage.

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contained in a complaint are wholly conclusory ... and fail to set forth facts which, if proved, would 

warrant the relief sought, it is proper to dismiss for failure to state a claim.”); see also Timber Pines 

Plaza, 2016 WL 8943313, at *2 (“To be clear, it is not sufficient under Iqbal to merely plead that 

the Defendant breached the Policy by failing to pay the benefits owed under the Policy.”). 

Moreover, even if Plaintiff’s allegations are considered true, Underwriters have not 

breached the Policy because there is no coverage for Plaintiff’s Claim. Accordingly, Plaintiff has 

failed to sufficiently plead that coverage is provided by the Policy, as the express language of the 

Policy expressly contradicts Plaintiff’s allegations that its losses are covered under the Policy. See 

Cruz, 2014 WL 3809179, at *4 (finding that plaintiff failed to sufficiently plead that its loss was 

covered under a policy, since the express language of an exclusion contradicted plaintiff’s 

allegations that its claim was covered). 

Accordingly Counts II, IV and VI for breach of contract must be dismissed.

IV. CONCLUSION 

Plaintiff has failed to satisfy its burden to plead facts that would give rise to a covered 

claim. Additionally, Plaintiff cannot allege facts that sufficiently demonstrate it has suffered a 

direct physical loss of or damage to its Property. Even if Plaintiff could allege a covered cause of 

loss, its claims are unambiguously excluded under the Policy. Because Plaintiff cannot plead a 

covered cause of loss under the Policy, it cannot assert its breach of contract actions. 

Thus, for the foregoing reasons, Underwriters respectfully request the Court dismiss 

Plaintiffs’ Complaint.

FIELDS HOWELL LLP

Attorneys for Defendants, Underwriters

9155 So. Dadeland Blvd.

Suite 1012

Miami, FL 33156

Tel: (786) 870-5600

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Fax: (855) 802-5821

By:/s/ Armando P. Rubio

 Armando P. Rubio, Esq.

 Florida Bar No. 478539

 arubio@fieldshowell.com

 service@fieldshowell.com

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing Motion to 

Dismiss was served via CM/ECF on July 14, 2020 upon all parties.

/s/ Armando P. Rubio

By: Armando P. Rubio

Attorneys for Defendants 

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