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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 RESPONSE TO DEFENDANTS’

FOURTH NOTICE OF SUPPLEMENTAL AUTHORITY

Royal Palm Optical, Inc. (“Plaintiff”),1 hereby responds to State Farm Mutual Automobile 

Insurance Company’s and State Farm Florida Insurance Company’s (collectively “State Farm”)

Fourth Notice of Supplemental Authority in Support of Motion to Dismiss (“Fourth Supplemental 

Authority”) (ECF No. 43). As an initial matter, this is the fourth time that State Farm has 

submitted impermissible argument for which they did not seek leave to file. See Local Rule 7.1(c) 

(noting that after a reply is filed “[n]o further or additional memoranda of law shall be filed and 

served without prior leave of Court”). State Farm should not be permitted to continually waste 

this Court’s and Plaintiff’s time and resources by submitting inapposite case law after briefing on 

 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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its Motion to Dismiss has closed.2 Accordingly, the Fourth Supplemental Authority should be 

stricken.

Further, State Farm has again submitted inapposite cases.

3 The cases cited in State Farm’s 

Fourth Supplemental Authority– It’s Nice, Inc. v. State Farm Fire and Casualty Co., No. 20-L-547 

(Cir. Ct. Ill. Sept. 29, 2020), Infinity Exhibits, Inc. v. Certain Underwriters at Lloyd’s London Known 

as Syndicate, 2020 WL 5791583 (M.D. Fla. Sept. 28, 2020), Oral Surgeons, P.C. v. The Cincinnati 

Insurance Company, 2020 WL 5820552 (S.D. Iowa Sept. 29, 2020), and Rhonda Hill Wilson, et al. 

v. Hartford Cas. Co., et al., 2020 WL 5820800 (E.D. Pa. Sept. 30, 2020)—are all distinguishable 

and do not support State Farm’s Motion to Dismiss Amended Complaint for Failure to State a 

Claim (ECF No. 33) (“Motion to Dismiss”). 

First, in It’s Nice Inc., the court based its decision on cases from other states in ruling on 

what constitutes a “direct physical loss to property.” No. 20-L-547, at *27–30. This decision is 

not binding on this Court and is also inconsistent with Florida law. As set forth in Plaintiff’s 

briefing, Florida courts recognize that “direct physical loss” does not require structural or tangible 

damage to property—rather, an inability to use property for its intended use is a direct physical 

 2 Pursuant to a Court order State Farm was permitted to file a 25 page brief in support of its Motion 

to Dismiss (ECF 28) and pursuant to Local Rule 7.1(c)(2), State Farm’s reply was permitted to be 

10 pages; State Farm used all of those pages in its briefing. Since the close of briefing, State Farm 

has filed 4 notices of supplemental authority compromised of 9 additional pages. In total, State 

Farm’s briefing on the Motion to Dismiss now amounts to 44 pages of briefing-9 over the page 

limits established by the Court’s order and the Local Rule. Over 240 lawsuits regarding the denial 

of business interruption insurance claims have been filed throughout the country. If State Farm is 

permitted to continue its pattern of filing “supplemental authority” each time a non–binding 

decisions is issued, this could amount to hundreds of pages of briefing on State Farm’s Motion to 

Dismiss. This is an end-run around the Local Rules and should be rejected. 

3 Plaintiff’s Response to Defendants’ Notices of Supplemental Authority (ECF 40) details how the 

cases cited in State Farm’s First and Second Notice of Supplemental Authority (ECF 38, 39) were 

distinguishable from the issues in this case. Plaintiff’s Response to Defendants’ Third Notice of 

Supplemental Authority (ECF 42) details how the cases cited in State Farm’s Third Notice of 

Supplemental Authority (ECF 41) were distinguishable from the issues in this case. 

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loss to property. Widdows v. State Farm Fla. Ins. Co., 920 So. 2d 149, 150 (Fla. 5th Dist. Ct. App. 

2006) (“As to the issue of whether evidence was adduced of a ‘physical loss,’ we conclude that 

the abnormality in the [property] itself was such a ‘loss’ . . . it was not necessary for [the insured] 

to establish any resulting damage from this condition.”); Homeowners Choice Prop. & Cas. v. 

Maspons, 211 So. 3d 1067, 1069 (Fla. 3rd Dist. Ct. App. 2017) (the failure of property to perform 

its function constituted a direct physical loss). These decisions, unlike It’s Nice Inc. and the non–

binding case law upon which it is based, are directly relevant to this case and support Plaintiff’s 

claim of direct physical loss under Florida law. It’s Nice Inc,’s ruling regarding “direct physical 

loss to property” does not apply Florida law and is not relevant to this Court’s ruling on the Motion 

to Dismiss.

Infinity Exhibits, Oral Surgeons, and Wilson are also inapposite. The Infinity Exhibits

plaintiff is a company that “designs and fabricates trade show displays.” Infinity Exhibits, Inc. 

2020 WL 5791583, at *1. The Infinity Exhibits plaintiff suffered business losses when trade shows 

were cancelled. Importantly, the Infinity Exhibits plaintiff’s complaint did “not include any 

allegations that Plaintiff was precluded from accessing the Property as a result of COVID-19 or 

any of the related government orders and social distancing requirements” and plaintiff did not 

“describe how [its] [p]roperty or any other property experienced ‘direct physical loss or damage.’” 

Id. at *2. In stark contrast, Plaintiff’s complaint specifically alleges that social distancing,

business closure and/or stay–at–home orders precluded access to Plaintiff’s property. See First 

Amended Complaint ¶¶ 5, 55, 57–58, 60, 79. Moreover, in Infinity Exhibits, plaintiff argued “that 

economic damage is synonymous with ‘physical loss’ and is therefore covered under the

[insurance] Policies.” Infinity Exhibits, Inc. 2020 WL 5791583, at *3. Here, dissimilarly,

Plaintiff explicitly alleges that there has been a direct physical loss to the buildings, structures and 

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personal property used at Plaintiff’s business. First Amended Complaint ¶¶ 80–84. As discussed 

in Plaintiff’s briefing, Plaintiff’s property cannot be used for business activity in accordance with

its status before social distancing, business closure and/or stay–at–home orders were issued, and 

plaintiff has thus suffered a direct physical loss to property. Opp. to Mot. to Dismiss at 8–10.4

In Oral Surgeons, plaintiff alleged its “loss was caused by the COVID-19” and similarly 

in Wilson, the plaintiffs specifically alleged that “Coronavirus caused direct physical damage and 

loss of property at their scheduled premises . . . [and] that the Coronavirus causes physical harm 

to property.” Oral Surgeons, P.C. 2020 WL 5820552, at *1; Wilson 2020 WL 5820800, at *2. 

These facts are entirely distinct from those alleged here, where there has been no claim for losses 

stemming from the presence of, or contamination by, COVID–19 on Plaintiff’s property. Rather, 

Plaintiff is asserting that social distancing, business closure, and/or stay–at–home orders caused 

direct physical loss to Plaintiff’s property. See First Amended Complaint ¶¶ 5, 58, 60, 79–80, 83, 

96, 106. 

For these reasons, Plaintiff respectfully submits that these authorities are not relevant or 

persuasive and that State Farm’s Motion to Dismiss should be denied. 

Dated: October 16, 2020 Respectfully Submitted,

/s/ Zachary S. Bower

ZACHARY S. BOWER

Florida Bar No. 17506

 4 Moreover, as discussed in Plaintiff’s briefing, the Mama Jo’s, Inc. v. Sparta Ins. Co., 2018 WL 

3412974, at *9 (S.D. Fla. June 11, 2018) case discussed in Infinity Exhibits is also distinct. Opp. 

to Mot. to Dismiss at 10. In Mama Jo’s the court found that “[s]everal courts have held that 

‘physical loss’ occurs when property becomes . . . substantially ‘unusable’” and, then found there 

was not direct physical loss on other grounds, including that the property was not “uninhabitable 

or unusable” given that it “remained open every day” and “customers were always able to access 

the [property].” Mama Jo’s 2018 WL 3412974, at *9. Here, Plaintiff’s property was unusable, 

did not remain open every day, and customers could not access the property. First Amended 

Complaint ¶¶ 55–60.

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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

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 October 16, 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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