1 

UNITED STATES DISTRICT COURT

Northern District of Florida

Civil Action No. 3:21-cv-00178-MCR-EMT

TL GOODSON, LLC )

) 

) 

) 

) 

) 

) 

) 

) 

) 

Plaintiff

v.

SOUTHERN-OWNERS INSURANCE 

COMPANY and AUTO-OWNERS 

INSURANCE COMPANY

Defendants

DISPOSITIVE MOTION

DEFENDANTS SOUTHERN-OWNERS INSURANCE COMPANY’S AND 

AUTO-OWNERS INSURANCE COMPANY’S MOTION TO DISMISS

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for 

the reasons stated in the incorporated memorandum of law which follows, 

Defendants Southern-Owners Insurance Company (“SOIC”) and Auto-Owners 

Insurance Company (“Auto-Owners”) respectfully request that this Court dismiss 

Plaintiff’s Complaint, with prejudice, due to a lack of standing as to Auto-Owners,

and for failure to state a claim upon which relief can be granted against either 

Defendant. 

MEMORANDUM OF LAW

This lawsuit is yet another in a line of cases seeking “business interruption” 

insurance coverage arising out of the COVID-19 pandemic. “[F]ederal district 

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courts throughout the country have dismissed substantially similar COVID-19 

related lawsuits for failing to state a claim for business income coverage.” El Novillo 

Rest. v. Certain Underwriters at Lloyd’s, __F. Supp. 3d __, 2020 U.S. Dist. LEXIS 

233994, at *16 (S.D. Fla. Dec. 7, 2020). More than 200 complaints just like this one 

have been dismissed by courts to date. (See Ex. 1.) That includes at least 36

opinions issued by Florida’s state and federal courts interpreting similar language 

under Florida law. And it includes at least 7 opinions interpreting similar policy 

language that appeared in policies issued by SOIC, Auto-Owners, or their affiliates. 

Those courts got it right. Plaintiff’s single claim for Declaratory Judgment 

boils down to its position that Defendants wrongly denied Plaintiff’s claim for 

Business Income, Extra Expense, and Civil Authority coverage. For several reasons, 

Plaintiff is mistaken. First, to trigger Business Income or Extra Expense coverage 

under a property insurance policy, the policyholder must generally show “direct 

physical loss or damage to” covered property caused by a “covered cause of loss.” 

Florida courts are clear that this requires a showing of tangible, physical damage to 

the plaintiff’s property. Plaintiff makes no such allegation and cannot do so in good 

faith. Second, Plaintiff’s claim for Civil Authority coverage lacks merit because no 

Civil Authority order issued because of “damage to property other than” Plaintiff’s, 

nor has Plaintiff alleged that a Civil Authority order completely “prohibit[ed] access 

to” Plaintiff’s property, as the Policy requires. And third, even if all of that were not 

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true, Plaintiff’s claims would still be barred by the Policy’s exclusions. Put simply, 

as courts around the country have held, the existence of the COVID-19 pandemic 

does not trigger coverage in situations such as this. Plaintiff’s claim was therefore 

properly rejected, and its case should be dismissed with prejudice.

BACKGROUND

I. Plaintiff’s Allegations

Plaintiff TL Goodson LLC owns and operates a restaurant in Cantonment, 

Florida that, in normal times, “is open every day for lunch and dinner, and provides 

a range of food and beverage options, including alcoholic beverages.” (Compl. ¶¶ 1, 

23, Doc. 1.) 

A. The Governor’s Executive Orders Limit the Ability of Restaurants 

to Operate at Full Capacity.

Due to the COVID-19 pandemic, the Governor issued a series of Executive 

Orders—three of which, Plaintiff alleges, affected the restaurant industry. (Id. ¶¶ 8-

12.) First, on March 17, 2020, the Governor signed Executive Order 20-68, which 

“restricted restaurants to 50% capacity,” required “a minimum of 6 feet between 

groups of customers and no more than 10 customers in any group,” and required 

restaurants to “screen any employee diagnosed with COVID-19 or showing 

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symptoms of the disease, and to prohibit them from the premises.” (Compl. ¶ 10; 

EO 20-68 at § 3, ¶¶ A-C, Ex. 21

.) 

Second, three days later, the Governor issued Executive Order 20-71, which 

“required all restaurants and bars to suspend food services on their premises,” but 

“allowed businesses to continue to operate their kitchens for the purpose of 

providing delivery and take-out services.” (Compl. ¶ 11; EO 20-71, § 2, Ex. 3.) 

This Order specifically allowed certain employees “access to such establishments 

[restaurants and bars] for the purposes of delivery or take-out services.” (Id.) 

Third, on April 1, Executive Order 20-91 (the “Safer from Home Order”) 

issued. (EO 20-91, Ex 4.) This Order required persons in Florida to stay home 

except to conduct “essential activities” or “obtain or provide essential services[.]” 

(Compl. ¶ 12; EO 20-91, § 1, ¶ B.) “Essential services” included those “designated 

by Executive Order 20-89 and its attachment which consists of a list propounded by 

Miami-Dade County in multiple orders.” (EO 20-91, § 2, ¶ A.) And that list stated, 

“Essential retail and commercial businesses, which may remain open, are . . . 

1 This Court can consider the text of the Executive Orders at this stage because they 

are referenced in and central to Plaintiff’s Complaint, and because they are public 

documents bearing the Governor’s signature. Patel v. Specialized Loan Servicing, 

LLC, 904 F.3d 1314, 1318 n.3 (11th Cir. 2018) (courts may consider documents 

“beyond the face of the complaint and documents attached thereto when analyzing 

a motion to dismiss” if “a plaintiff refers to a document in its complaint, the 

document is central to its claim, its contents are not in dispute, and the defendant 

attaches the document to its motion to dismiss”). For ease of reference, Defendants 

attach the Executive Orders in their entirety here.

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Restaurants and other facilities that prepare and serve food, but subject to the 

limitations and requirements of Emergency Order 3-20.” (EO 20-89, Ex. 5

(incorporating Miami-Dade Order 7-20, ¶ 2(m)).) The “Safer at Home” order further 

provided that “[a]ll businesses or organizations are encouraged to provide delivery, 

carry-out or curbside service outside of the business or organization, of orders placed 

online or via telephone, to the greatest extent practicable.” (EO 20-91, § 2, ¶ E.) 

Later, on April 29, 2020, the Governor issued Executive Order 20-112, which 

allowed restaurants to reopen on-premises dining on May 4, 2020, subject to a limit 

of 25% indoor capacity, social distancing of 6 feet between parties, and parties of 10 

people or less. (EO 20-112, § 3, ¶ B, Ex 6.)

B. Plaintiff Limits Its Operations In Compliance With the Executive 

Orders.

In accordance with those Executive Orders, Plaintiff alleges it “began to 

restrict on-premises [dining]” on March 17, 2020; “closed” to on-premises dining 

and transitioned to carry-out only on March 20, 2020; and “in May, . . . began a 

limited reopening consistent with the requirements of the executive orders[.]” 

(Compl. ¶¶ 13-14, 16.) Plaintiff further alleges that, after two employees were 

exposed to the virus in June 2020, its restaurant “closed to business” for 9 days so 

that a “private company” could “sanitize the premises and ensure no further spread 

of COVID-19 among Plaintiff’s employees or customers.” (Id. ¶¶ 19-20.) 

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C. Plaintiff Sues SOIC and Auto-Owners. 

Plaintiff then “filed a claim of loss with Defendants on July 30, 2020, claiming 

losses due to coronavirus and related government-mandated closures.” (Compl. ¶ 

33.) Plaintiff states that “Defendants issued a Coverage Position Letter denying the 

claim” on August 26. (Id. ¶ 34.) After the claim was denied, Plaintiff filed this 

lawsuit. Plaintiff’s Complaint does not seek actual damages, but instead includes a 

single claim for Declaratory Judgment. Specifically, Plaintiff “seeks Declaratory 

Judgment as to”:

• “[W]hether the presence of SARS-CoV-2 on the insured premises 

constitutes a ‘physical loss of or damage to’ the insured property”;

• “[W]hether losses due to SARS-CoV-2 and/or COVID-19 

constitute a covered loss under the Business and Personal Property 

Coverage Form in the Policy”; 

• “[W]hether Plaintiff is entitled to coverage under the Business 

Income and Extra Expense form in the Policy”; and 

• “[W]hether Plaintiff is entitled to coverage under the civil 

authority provisions in the Policy.” 

(Compl. ¶¶ 72-75.) Plaintiff states that it “does not seek any determination of 

whether SARS-CoV-2 was physically present in or at the insured premises, amount 

of damages, or any other remedy other than declaratory relief.” (Id. ¶ 76.)

II. The Policy

Plaintiff’s Complaint centers on an insurance policy it entered into with 

“Defendants” on February 14, 2020. (Compl. ¶ 21.) Although Plaintiff named both 

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SOIC and Auto-Owners as Defendants, as the Policy attached to the Complaint 

makes clear, SOIC (and SOIC alone) issued the Policy. (Policy, Doc. 1-1, Page 5 of 

182.)

A. The Policy’s Coverage Provisions.

As the Complaint acknowledges, coverage under the Policy is triggered by 

“direct physical loss of or damage to Covered Property.” (Compl. ¶ 25.) The 

Policy’s “Coverage” provision states:

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.

(Building and Personal Property (“BPP”) Coverage Form, § A, Doc. 1-1, Page 118 

of 182.) The BPP Coverage Form incorporates the definition of a “Covered Cause 

of Loss” from the “Causes of Loss Form as shown in the Declarations.” (Id. § A.3, 

Doc. 1-1, Page 120 of 182.) And the Causes of Loss Form provides that “. . . Covered 

Causes of Loss means Risks of Direct Physical Loss unless the loss is: 1. Excluded 

in Section B., Exclusions; or 2. Limited in Section C., Limitations that follow.” 

(Causes of Loss Special Form, § A, Doc. 1-1, Page 35 of 182; see also Compl. ¶ 25 

(acknowledging the same definition).) 

In support of its argument for coverage (Compl. ¶¶ 72-76), Plaintiff 

specifically relies on the following provisions in the Policy’s “Business Income And 

Extra Expense Coverage Form”: 

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a. Business Income. Subject to the Limit of Insurance provisions 

of this endorsement, we will pay for the actual loss of Business 

Income you sustain due to the necessary suspension of your 

“operations”[2] during the “period of restoration.”[3]

 

b. Extra Expense. Subject to the Limit of Insurance provisions 

of this endorsement, we will pay necessary Extra Expense you 

incur during the “period of restoration”. Extra Expense means 

expense incurred: 

(1) To avoid or minimize the suspension of business and to 

continue “operations”: (a) At the described premises or at a 

“newly acquired location”; or (b) At replacement premises or at 

temporary locations, including: 1) Relocation expenses; and 2)

Costs to equip and operate the replacement or temporary 

locations. 

(2) To minimize the suspension of business if you cannot 

continue “operations”.

(3) (a) To repair or replace any property; or (b) To research, 

replace or restore the lost information on damaged valuable 

papers and records;

to the extent it reduces the amount of loss that otherwise would 

have been payable under this Additional Coverage or the 

Additional Coverage, Business Income.

2 “Operations” are defined as “your business activities occurring at the described 

premises or at a ‘newly acquired location.’” (Business Income and Extra Expense 

Coverage Form, § 4, Doc. 1-1, Page 50 of 182.)

3

 “Period of Restoration” is defined as “the period of time that: a. Begins with the 

date of direct physical loss or damage caused by or resulting from any Covered 

Cause of Loss at the described premises or at a ‘newly acquired location’; and b. 

Ends on the date when the property at the described premises or at a ‘newly acquired 

location’ should be repaired, rebuilt or replaced with reasonable speed and similar 

quality.” (Business Income and Extra Expense Coverage Form, § 4, Doc. 1-1, Page 

50 of 182.) 

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[Civil Authority]: Subject to the Limit of Insurance provisions of 

this endorsement, we will also 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 or 

to a “newly acquired location” due to direct physical loss of or 

damage to property, other than at the described premises or at a 

“newly acquired location”, caused by or resulting from any 

Covered Cause of Loss. This coverage will apply for a period of 

up to two consecutive weeks from the date of that action.

(Business Income and Extra Expense Coverage Form, §§ 1(a), 1(b), Doc. 1-1, Page 

47 of 182.)

B. The Policy’s Exclusions.

In addition, the Policy’s Causes of Loss Form refers to “Exclusions” which, 

under Florida law, only come into play if the Court first finds that coverage exists. 

As relevant to this case, the Policy contains the following Exclusions:

B. EXCLUSIONS 

1. We will not pay for loss or damage caused directly or 

indirectly by any of the following. Such loss or damage is 

excluded regardless of any other cause or event that contributes 

concurrently or in any sequence to the loss.

a. Ordinance or Law. The enforcement of any ordinance or 

law: (1) Regulating the . . . use . . . of any property . . .

c. Governmental Action. Seizure or destruction of any 

property by order of governmental authority . . . .

2. We will not pay for loss or damage caused by or resulting 

from any of the following: . . . .

b. Delay, loss of use or loss of market. . . .

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3. We will not pay for loss or damage caused by or resulting 

from any of the following. But if loss or damage caused by a 

Covered Cause of Loss results, we will pay for that resulting loss 

or damage. . . .

b. Acts or Decisions: Acts or decisions, including the failure 

to act or decide, of any person, group, organization or 

governmental body.

4a. Business Income and Extra Expense Exclusions. We will 

not pay for: . . . . (5) Any other consequential loss.

(Causes of Loss Special Form, § B.1(a), (c); § B.2(b); § B.3(b); § B.4(a)(5), Doc. 1-

1, Pages 35-38 of 182.)

LEGAL STANDARDS

I. Pleading Standards

Defendants’ arguments to dismiss the claims against Auto-Owners for lack of 

standing implicate this Court’s subject matter jurisdiction, and are decided under 

Federal Rule of Civil Procedure 12(b)(1). Snyder v. Green Rds. of Fla. LLC, 430 F. 

Supp. 3d 1297, 1302 (S.D. Fla. 2020). When, as here, a Rule 12(b)(1) motion is a 

“facial attack,” courts apply standards similar to those under Rule 12(b)(6). 

McElmurray v. Consolidated Gov’t of Augusta-Richmond Cty., 501 F.3d 1244 (11th 

Cir. 2007). 

Under Rule 12(b)(6)—which also applies to Defendants’ remaining 

arguments for dismissal—a complaint must allege “sufficient factual matter, 

accepted as true, to ‘state a claim of relief that is plausible on its face.’” Ashcroft v. 

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Iqbal, 556 U.S. 662, 678 (2009). Two “working principles” underlie the Rule’s 

pleading requirements. Id. “First, the tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal conclusions.” Id.

“Second, only a complaint that states a plausible claim for relief survives a motion 

to dismiss.” Id. at 679. “Threadbare recitals of all the elements of a cause of action, 

supported by mere conclusory statements do not suffice.” Id.

II. Contract Interpretation In Florida

“Under Florida law, the interpretation of an insurance contract is a matter of 

law to be decided by the court.” AIX Specialty Ins. Co. v. Ashland 2 Partners, LLC, 

383 F. Supp. 3d 1334, 1337 (M.D. Fla. 2019).4

 “When considering 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-America Ins. Co., No. 17-cv-21605, 2017 U.S. Dist. LEXIS 

4 Here, the Court must apply Florida law to interpret the contract. Under the Erie 

doctrine, “the construction of insurance contracts is governed by substantive state 

law.” Sphinx Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 412 F.3d 

1224, 1227 (11th Cir. 2005) (citation omitted). Florida applies the traditional rule 

of lex loci contractus to insurance contracts, such that “the law of the jurisdiction 

where the contract was executed governs the rights and liabilities of the parties in 

determining an issue of insurance coverage.” State Farm Mut. Auto. Ins. Co. v. 

Roach, 945 So.2d 1160, 1163 (Fla. 2006) (citing Stuiriano v. Brooks, 523 So.2d 

1126, 1129 (Fla. 1988)); see also LaTorre v. Conn. Mut. Life Ins. Co., 38 F.3d 538, 

540 (11th Cir. 1984).

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188073, at *5-6 (S.D. Fla. Nov. 9, 2017) (collecting cases within and outside the 

Eleventh Circuit and Florida). This Court may consider the terms of the Policy and 

the Executive Orders, all of which Plaintiff referenced in its Complaint. Tellabs, 

Inc., 551 U.S. at 322. “A party claiming coverage...generally bears the burden of 

proof to establish that coverage exists.” Mama Jo's, Inc. v. Sparta Ins. Co., 823 F. 

App’x 868, 878 (11th Cir. 2020), cert den., Case No. 20-998, 2021 U.S. LEXIS 1618

(Mar. 29, 2021). 

ARGUMENT

I. Plaintiff Lacks Standing to Sue Auto-Owners.

As a threshold matter, all claims raised against Auto-Owners should be 

dismissed because Plaintiff has alleged no facts implicating Auto-Owners in any 

wrongdoing. “[S]tanding is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 

358 n.6 (1996). It is assessed on a claim-by-claim basis. Waskul v. Washtenaw Cty. 

Cmty. Mental Health, 900 F.3d 250, 255 (6th Cir. 2018). And it is assessed on a 

party-by-party basis. Lewis, 518 U.S. at 357. Put simply, a “plaintiff proceeding 

against multiple defendants must establish standing as to each defendant and each 

claim.” Holland v. J.P. Morgan Chase Bank, N.A., No. 19 Civ. 00233, 2019 U.S. 

Dist. LEXIS 146553, at *14 (S.D.N.Y. Aug. 28, 2019). 

Plaintiff has not done so. This case centers on the alleged breach of an 

insurance policy that—as the Policy itself makes clear—was issued by SOIC (and 

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only SOIC), and to which Auto-Owners was not a party. (Policy Declarations, Doc. 

1-1, Page 5 of 182.) When an insured sues entities who “are not parties to the policy 

at issue,” the insured “lacks standing to pursue [its] claims against those entities 

because [the] injury is not traceable to them.” Perry v. Allstate Indem. Co., 953 F.3d 

417, 420 (6th Cir. 2020); see also Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 

(11th Cir. 2005). 

Put simply, because Auto-Owners is not Plaintiff’s insurer, it is not a proper 

defendant. While SOIC is a member of the Auto-Owners group of companies, 

they are separate entities, with separate certificate of authorities, and issue separate 

insurance policies. Because any injury suffered by Plaintiff is not traceable to 

Auto-Owners, all claims against Auto-Owners should be dismissed for lack of 

Article III standing.

II. Plaintiff’s Request for a Declaratory Judgment Should be Denied.

“Florida law places on the insured the burden of proving that a claim against 

it is covered by the insurance policy.” LaFarge Corp. v. Travelers Indem. Co., 118 

F.3d 1511, 1516 (11th Cir. 1997); see also Diamond State Ins. Co. v. Boys’ Home 

Ass’n, Inc., 172 F. Supp. 3d 1326, 1334 (M.D. Fla. 2016) (“[T]he insured bears the 

burden of proving that a claim is covered by the insurance policy[.]”). It necessarily 

follows that, to state a valid cause of action, Plaintiff’s Complaint must allege facts 

that bring the claim within the Policy’s insurance agreement. LaFarge, 118 F.3d at 

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1516. If Plaintiff meets that initial burden, then the burden shifts to SOIC to prove 

that an exclusion applies. Mid-Continent Cas. Co. v. Frank Casserino Constr., 721 

F. Supp. 2d 1209, 1215 (M.D. Fla. 2010) (“Once the insured shows coverage, the 

insurer has the burden of proving an exclusion.”).5

 

Here, Plaintiff fails at each step. Plaintiff cannot meet its initial burden of 

proving that its claim is covered by the Policy and, even if it could, the Policy’s 

exclusions would still bar coverage. Plaintiff’s request for a Declaratory Judgment 

should therefore be denied, and its Complaint should be dismissed with prejudice.

A. Plaintiff Fails To Allege It Suffered a Direct Physical Loss And, 

Therefore, Is Not Entitled to Business Income Or Extra Expense 

Coverage.

Plaintiff’s Complaint seeks a declaratory ruling that it is entitled to coverage 

under the Policy’s Business Income, Extra Expense, and Civil Authority provisions. 

Each provision requires Plaintiff to show it suffered a “direct physical loss.” More 

broadly, the BPP Coverage Form’s “Coverage” provision states that SOIC “will pay 

5 Notably, Plaintiff spends several paragraphs of its Complaint contending that 

SOIC’s Policy does not include a “virus” exclusion, even though “Defendants were 

aware of the existence of forms that could have excluded viruses from coverage.” 

(Compl. ¶¶ 49-51.) As this framework shows, the lack of a virus exclusion is 

immaterial because exclusions come into play only if Plaintiff can first show that 

coverage applies—an inquiry that looks to whether a “direct physical loss” occurred. 

Put differently, the application of an exclusion is a separate inquiry from the 

threshold question of whether coverage applies in the first place. See Ward Gen. Ins. 

Servs., Inc. v. Employers Fire Ins. Co., 114 Cal. App. 4th 548, 555 (2003) (finding 

no direct physical loss and stating that it was therefore “unnecessary to analyze the 

various exclusions and their application to this case”).

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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.” (BPP 

Coverage Form, § A.); see also Royal Palm Optical, Inc. v. State Farm Mut. Auto. 

Ins. Co., No. 20-80749, __ F. Supp. 3d __, 2021 U.S. Dist. LEXIS 62754, at *4 (S.D. 

Fla. Mar. 30, 2021) (explaining that “[t]his is the most critical part of the Policy 

because it describes what event triggers the remainder of the Policy.”).

And more specifically:

• Business Income coverage applies only when there is a “necessary 

suspension of ‘operations’ during the ‘period of restoration.’” 

(Business Income and Extra Expense Form, § 1(a).) A “period of 

restoration” begins only after there has been “direct physical loss 

or damage caused by or resulting from any Covered Cause of 

Loss . . .” (Id. § 4 (emphasis added).) And a Covered Cause of 

Loss means “Risks of Direct Physical Loss . . .” (Causes of Loss 

Special Form, § A.) 

• Extra Expense coverage applies only to “necessary Extra Expense 

you incur during the ‘period of restoration.’” (Business Income 

and Extra Expense Form, § 1(b).) Again, the “period of 

restoration” begins only after there has been “direct physical loss 

or damage caused by or resulting from any Covered Cause of 

Loss.” (Id. § 4 (emphasis added).)

• Civil Authority coverage applies only to “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 or to a ‘newly acquired location’ due to direct 

physical loss of or damage to property, other than at the 

described premises or at a “newly acquired location” . . . 

(Business Income and Extra Expense Form, § 1 (emphasis 

added).)

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Here, Plaintiff’s claim for coverage under these three provisions was properly 

denied for the simple reason that Plaintiff has not suffered “direct physical loss or 

damage” to Covered Property. 

Florida courts have found that a “direct physical loss ‘contemplates an actual 

damage 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 U.S. Dist. LEXIS 201852, at *24 

(S.D. Fla. June 11, 2018) (citation omitted), aff’d 823 F. App’x 868; Homeowners 

Choice Prop. & Cas. v. Maspons, 211 So. 3d 1067, 1069 (Fla. 3d DCA 2017) (“A 

‘loss’ is the diminution of value of something . . . ‘Direct’ and ‘physical’ modify loss 

and impose the requirement that the damage be actual.”). 

Thus, it is not surprising that Florida courts have held in unison that there must 

be actual, tangible damage to property to trigger a “direct physical loss.” See, e.g., 

Royal Palm, 2021 U.S. Dist. LEXIS 62754, at *11-12 (“The critical policy language 

at issue here . . . requires some form of actual, tangible damage to the physical 

property itself to trigger the Policy’s affirmative grant of coverage. This is borne 

out by the ordinary meaning of those terms as understood in context.”); Infinity 

Exhibits v. Certain Underwriters at Lloyd’s London, 2020 U.S. Dist. LEXIS 182497, 

at *8, 10 (M.D. Fla. Sept 28, 2020) (holding that “Florida law and the plain language 

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of the Policies reflect that actual, concrete damage is necessary,” and recognizing 

that “[c]ourts across the country have held that such coverage does not exist where, 

as here, policyholders fail to plead facts showing physical property damage.”); 

Emerald Coast Rests., Inc. v. Aspen Specialty Ins. Co., No. 3:20-cv-5898, 2020 U.S. 

Dist. LEXIS 246518, at *2 (N.D. Fla. Dec. 18, 2020) (Wetherell, J.) (similar policy 

“clearly and unambiguously requires actual physical damage to the property”); 

Harvest Moon Distribs., LLC v. Southern-Owners Ins. Co., No. 6:20-cv-1026, __ F.

Supp. 3d __, 2020 U.S. Dist. LEXIS 189390 (M.D. Fla. Oct. 9, 2020) (dismissing 

similar claim based on policy issued by SOIC).

6

6 See also, e.g., Prime Time Sports Grill, Inc. v. DTW 1991 Underwriting, Ltd., No. 

8:20-cv-771- T-36JSS, 2020 U.S. Dist. LEXIS 237338 (M.D. Fla. Dec. 17, 2020) 

(explaining that under Florida law, “there must be tangible damage to property for a 

‘direct physical loss’ to exist”); Nahmad v. Hartford Cas. Ins. Co., No. 1:20-cv22833, 2020 U.S. Dist. LEXIS 203838, at *15-23 (S.D. Fla. Nov. 2, 2020) (applying 

same standard and stating that “[n]umerous other courts across the country have 

dismissed substantially similar COVID-19-related lawsuits at this stage for failing 

to plead actionable claims under the insurance policy . . . The Court finds these 

decisions instructive”); Mauricio Martinez, DMD, PA v. Allied Ins. Co. of Am., 2020 

U.S. Dist. LEXIS 165140 (M.D. Fla. Sept 2, 2020); Malaube, LLC v. Greenwich Ins. 

Co., No. 20-22615, 2020 U.S. Dist. LEXIS 156027 (S.D. Fla. Aug. 26, 2020) 

(interpreting direct physical loss requirement under Florida law to require tangible 

damage, explaining that application of “a more expansive definition of ‘direct 

physical loss or damage’” would require the court to “ignore both Eleventh Circuit 

and Florida precedent,” and dismissing business income claims); El Novillo, 2020 

U.S. Dist. LEXIS 233994, at *16-17 (collecting cases requiring the property to 

“undergo[] a ‘distinct, demonstrable, physical alteration’”); Carrot Love, LLC v. 

Aspen Specialty Ins. Co., Civil Action No. 20-23586-Civ, 2021 U.S. Dist. LEXIS 

6060, at *5-6 (S.D. Fla. Jan. 12, 2021).

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This is consistent with how the Eleventh Circuit has interpreted the “direct 

physical loss” requirement in other contexts. Mama Jo’s, 823 F. App’x at 879 

(“[U]nder Florida law, an item or structure that merely needs to be cleaned has not 

suffered a ‘loss’ which is both ‘direct’ and ‘physical.’”). It is consistent with how 

courts across the country have interpreted the language in COVID-19 related 

claims.7 (See Ex. 1.) And it is also consistent with a leading treatise in the industry. 

See 10A Steven Plitt, et al., COUCH ON INSURANCE § 148:46 (3d ed. 2019) 

(“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.”). 

7 In doing so, many of these courts have also pointed to definitions of a “period of 

restoration” similar to that in Plaintiff’s Policy here. They have noted that the 

“period of restoration” is only in place while the property is being rebuilt, repaired, 

or replaced, and in the absence of tangible, physical damage, there would be no need 

to repair, rebuild, or replace the property. See Malaube, 2020 U.S. Dist. LEXIS 

156027, at *25 (“The words ‘repair’ and ‘replace’ contemplate physical damage to 

the insured premises as opposed to loss of use of it.”); See KD Unlimited, Inc. v. 

Owners Ins. Co., No. 1:20-cv-2163, 2021 U.S. Dist. LEXIS 5926, at *13 (N.D. Ga. 

Jan. 5, 2021) (“This range of contemplated harms aligns with an understanding that 

‘direct physical loss or damage to’ requires a physical change in the property subject 

to restoration.”); El Novillo, 2020 U.S. Dist. LEXIS 233994, at *16 ([T]he words 

‘repair’ and ‘replace’ in the policy’s definition of ‘period of restoration’ 

contemplated ‘physical damage to the insured premises.’”).

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Plaintiff’s Complaint makes no attempt to meet this standard. There is not a 

single factual allegation showing that the virus caused “actual, tangible damage to 

the physical property itself.” Royal Palm, 2021 U.S. Dist. LEXIS 62754, at *12; 

Prime Time Sports Grill, 2020 U.S. Dist. LEXIS 237338 (“[T]here must be tangible 

damage to property for a ‘direct physical loss’ to exist”). Rather than allege tangible, 

structural harm to its property, Plaintiff’s Complaint points to three other “damages” 

caused by the pandemic, none of which trigger coverage under the Policy. 

1. Loss of Use and Economic Harm Is Not Direct Physical Loss.

First, Plaintiff contends that it “sustained a loss(es) due to the civil authority 

orders issued by the Governor” because those orders “restricted access to the insured 

premises, resulting in a loss of use of the insured premises by Plaintiff.” (Compl. 

¶ 32.) Plaintiff further contends that the presence of the virus “on physical property 

impairs its value, usefulness, and/or normal function.” (Id. ¶ 41.) 

Time and again, however, Florida courts have recognized that a “loss of use,” 

“loss of function,” or “loss of value”—in the absence of tangible, physical damage 

to the policyholder’s property—is not a “direct physical loss.” Malaube, 2020 U.S. 

Dist. LEXIS 156027, at *25 (rejecting plaintiff’s request that the court “adopt a more 

expansive definition of ‘direct physical loss or damage,’ so that coverage could 

apply if the property is either uninhabitable or substantially unusable”); Atma 

Beauty, Inc. v. HDI Global Specialty SE, No. 1:20-cv-21745, 2020 U.S. Dist. LEXIS 

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243999, at *9-10 (S.D. Fla. Dec. 30, 2020) (“Plaintiff's Complaint fails to clearly 

articulate the actual physical loss or damage to the salon. While Plaintiff argues that 

a loss of functionality of, access to, or intended use of the salon constitutes physical 

loss or damage, it is not supported by the plain language of the Policy or Florida 

law.”); Digital Age Mktg. Grp. v. Sentinel Ins. Co., No. 20-61577, __ F. Supp. 3d 

__, 2021 U.S. Dist. LEXIS 4835, at *12 (S.D. Fla. Jan. 8, 2021) (“Mere ‘economic 

losses—not anything tangible, actual, or physical’ do not suffice to demonstrate 

direct physical loss under Florida law.”). 

Courts elsewhere widely agree.8 See KD Unlimited, 2021 U.S. Dist. LEXIS 

5926, at *9-10 (“Multiple courts have now considered and rejected the Plaintiff’s 

loss of use theory in the COVID-19 business interruption context, finding that the 

ordinary meaning of ‘physical loss of or damage to’ requires a physical or tangible 

change.”); T&E Chicago LLC v. Cincinnati Ins. Co., No. 20 C 4001, 2020 U.S. Dist. 

LEXIS 217090, at *9-11 (N.D. Ill. Nov. 19, 2020) (“The Court agrees with the courts 

that have found that loss of use of property without any physical change to that 

property cannot constitute direct physical loss or damage to the property.”); 

Goodwill Indus. of Cent. Okla. v. Phila. Indem. Ins. Co., No. CV-20-511-R, 2020 

8 And even if they did not agree, as explained below, the Policy here expressly 

excludes damages caused from “delay, loss of use or loss of market.”

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U.S. Dist. LEXIS 210408, at *7 (W.D. Okla. Nov. 9, 2020) (rejecting a “more 

expansive definition” that would sweep in loss of use).

This Court should follow these well-reasoned opinions. Put simply, whether 

Plaintiff could use its restaurant as intended is irrelevant to whether coverage 

applies. All that matters is whether Plaintiff suffered a “direct physical loss” to its 

property. Because the Complaint does not allege facts showing that it did, the claim 

should be dismissed. 

2. Presence of the Virus on Plaintiff’s Property Is Not Direct 

Physical Loss.

Next, Plaintiff contends that the virus was present both on its property, and on 

its employees and customers, that the “presence of any SARS-CoV-2 particle causes 

direct physical harm to property, direct physical loss of property, and direct physical 

damage to property,” and that “Plaintiff has sustained direct physical loss and 

damage to items of property located at its premises and direct physical loss and 

[d]amage to its premises . . . as a result of the presence of . . . COVID-19 . . .” 

(Compl. ¶¶ 41-43, 45, 56-64.) 

Plaintiff offers no support for the conclusory statements—which, under Iqbal

and Twombly, need not be accepted as true—that the mere presence of COVID-19 

causes physical damage. And like Plaintiff’s other theories, this one, too, has been 

flatly rejected. See Mena Catering v. Scottsdale Ins. Co., No. 1:20-cv-23661, 2021 

U.S. Dist. LEXIS 4326, at *18 (S.D. Fla. Jan. 8, 2021) (“There is no ‘direct physical 

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loss’ where the alleged harm consists of the mere presence of the virus on the 

physical structure of the premises.”); Bon Appetite Crepes & Baguettes, LLC v. 

Certain Underwriters at Lloyd’s London, No. 2020-016074-CA-01 (Miami-Dade 

Cty. Circuit Ct. Mar. 12, 2021), slip op. at ¶ 11 (“Virus particles being present on, 

or adhering to, the surfaces of property do not cause actual physical damage to the 

property, nor does that issue require repair or restoration.”); KD Unlimited, 2021 

U.S. Dist. LEXIS 5926, at *14-15 (“Even if the Plaintiff did allege that COVID-19 

was physically present in the premises, the Court still does not find that the presence 

of COVID-19 particles on the Plaintiff’s property, without more, constitutes a ‘direct 

physical loss or damage to’ the property. Routine cleaning performed with greater 

frequency and care eliminates the virus on surfaces.”); Uncork & Create LLC v. 

Cincinnati Ins. Co., No. 2:20-cv-00401, 2020 U.S. Dist. LEXIS 204152, at *13 (S.D. 

W. Va. Nov. 2, 2020) (“[E]ven when present, COVID-19 does not threaten the 

inanimate structures covered by property insurance policies, and its presence on 

surfaces can be eliminated with disinfectant. Thus, even actual presence of the virus 

would not be sufficient to trigger coverage for physical damage or physical loss to 

the property.”); Sandy Point Dental, PC v. Cincinnati Ins. Co., No. 20-cv-2160, 2020 

U.S. Dist. LEXIS 171979, at *4-5 (N.D. Ill. Sept. 21, 2020) (“Plaintiff simply cannot 

show any such loss as a result of either inability to access its own office or the 

presence of the virus on its physical surfaces . . .”).

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3. Plaintiff’s Nine-Day Closure So It Could “Sanitize” the 

Restaurant Is Not a Direct Physical Loss.

As a final matter, Plaintiff appears to allege damage stemming from the fact 

that its restaurant temporarily closed down so that it could be sanitized after a 

COVID-19 exposure. As the Eleventh Circuit explained in Mama Jo’s, “under 

Florida law, an item or structure that merely needs to be cleaned has not suffered a 

‘loss’ which is both ‘direct’ and ‘physical.’” 823 F. App’x at 879, cert den. It 

necessarily follows that Plaintiff “cannot allege direct physical loss by claiming its 

property was superficially contaminated with COVID-19 particles.” Rococo Steak, 

LLC v. Aspen Specialty Ins. Co., No. 8:20-cv-2481-VMC-SPF, 2021 U.S. Dist. 

LEXIS 15191, at *11 (M.D. Fla. Jan. 27, 2021); Edison Kennedy, LLC v. Scottsdale 

Ins. Co., No. 8:20-cv-1416-T-02SPF, 2021 U.S. Dist. LEXIS 226, at *19 (M.D. Fla. 

Jan. 4, 2021) (“As in Mama Jo’s and the cases thereafter, the necessity of cleaning 

the property to remove particles resting on the property does not mean the property 

suffered direct physical damage or loss.”).

In summary, the court in Infinity Exhibits put it best when it explained that 

“Florida law and the plain language of the Policies reflect that actual, concrete 

damage is necessary.” 2020 U.S. Dist. LEXIS 182497, at *8. Plaintiff’s Complaint 

does not meet this standard, and it makes no meaningful attempt to argue otherwise. 

The Complaint—and all of its claims that rest on Plaintiff’s erroneous interpretation 

of a “direct physical loss”—should therefore be dismissed with prejudice.

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B. Plaintiff Is Not Entitled to Civil Authority Coverage.

Plaintiff also contends it was wrongly denied “Civil Authority” coverage, 

which applies when there has been “actual loss of Business Income . . . and necessary 

Extra Expense caused by action of civil authority that prohibits access to the 

described premises or to a ‘newly acquired location’ due to direct physical loss of or 

damage to property, other than at the described premises or at a ‘newly acquired 

location’, caused by or resulting from any Covered Cause of Loss.” For two reasons, 

Plaintiff is mistaken. 

First, just as Plaintiff failed to allege direct physical loss of its own property, 

Plaintiff also failed to allege that access to its property was prohibited “due to direct 

physical loss of or damage to property, other than at the described premises or at a 

‘newly acquired location.’” This claim therefore suffers from the same flaws as 

Plaintiff’s claim for Business Income and Extra Expense coverage. As also 

explained above, Plaintiff has not suffered a “loss of Business Income” or “necessary 

Extra Expense,” whether from a Civil Authority order or otherwise. See Rococo 

Steak, 2021 U.S. Dist. LEXIS 15191, at *14-15 (“[N]either physical contamination 

by COVID-19 nor a decrease in business constitutes direct physical loss or damage. 

Rococo thus fails to show how other properties in the surrounding area were 

‘damaged’ by COVID-19 or how the actions of civil authority were authorized in 

response to ‘dangerous physical conditions.’”).

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Second, Plaintiff has failed to adequately allege that any loss it experienced 

was “caused by action of civil authority that prohibits access to the described 

premises or to a ‘newly acquired location’ due to direct physical loss of or damage 

to property.” Courts interpreting similar provisions recognize that “generally, 

coverage under the civil authority section is only available when access is completely 

prohibited.” TMC Stores, Inc. v. Federated Mut. Ins. Co., No. A04-1963, 2005 

Minn. App. LEXIS 585, at *10 (Minn. Ct. App. June 7, 2005) (emphasis added). 

“[W]here the action of a civil authority merely hinders access to the covered 

premises, without completely prohibiting access, federal courts have held that such 

action is not covered[.]” Ski Shawnee, Inc. v. Commonwealth Ins. Co., No. 3:09-cv02391, 2010 U.S. Dist. LEXIS 67092, at *9-10 (M.D. Pa. July 6, 2010); S. 

Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1140-41 (10th Cir. 2004)

(collecting cases denying coverage “where the civil authority order had only the 

indirect effect of restricting or hampering access to the business premises.”).

Consistent with this, “courts in Florida have held that access is not ‘prohibited’ 

where customers can still purchase delivery or take-out.” Rococo Steak, LLC, 2021 

U.S. Dist. LEXIS 15191, at *15 (citing Raymond H Nahmad, 2020 U.S. Dist. LEXIS 

203838, which held that access was not prohibited where take-out and delivery were 

available); see also, e.g., El Novillo, 2020 U.S. Dist. LEXIS 233994, at *19-21 (citing 

to the same Executive Orders Plaintiff does here, and explaining that “these orders 

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26

did not prohibit customer access to Plaintiffs’ properties, but merely restricted access 

to indoor dining, while the restaurants remained open for delivery and takeout. Given 

these deficiencies, the Court finds that Plaintiffs fail to allege coverage under the 

Civil Authority Additional Coverage section”). As recognized in El Novillo, and as 

the orders referenced in Plaintiff’s Complaint make clear, access to Plaintiff’s 

restaurant was not “prohibited” due to orders of civil authority. While Plaintiff’s 

ability to conduct business was temporarily limited by the orders—allowing it to 

conduct only carry-out and delivery service—access to Plaintiff’s business was 

never completely prohibited. Plaintiff’s claim for Civil Authority coverage was, 

therefore, properly denied for this reason as well.

C. The Policy’s Exclusions Bar Coverage, Anyway.

Finally, even if Plaintiff could meet its initial burden of proving that its claims 

are within the Policy’s scope of coverage, the Policy’s exclusions would still 

preclude Plaintiff from recovering in this case. See Fla. Farm Bureau Gen. Ins. Co. 

v. Ins. Co. of N. Am., 763 So. 2d 429, 432 (Fla. 5th DCA 2000) (“[T]he applicability 

of policy exclusions contained in a policy . . . may be raised by a motion to dismiss 

when the allegations of the complaint clearly show that the exclusions do apply.”).

To begin, the Policy’s Acts or Decisions Exclusion excludes “loss or damage 

caused by or resulting from . . . Acts or decisions, including the failure to act or 

decide, of any person, group, organization or governmental body.” (Causes of Loss 

Case 3:21-cv-00178-MCR-EMT Document 5 Filed 04/05/21 Page 26 of 30
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Special Form, § B.3(b).) To the extent Plaintiff alleges the Governor’s Executive 

Orders caused its losses, those allegations boil down to an argument that the acts 

or decisions of a “governmental body” caused Plaintiff’s damages and, 

consequently, this exclusion applies.

Second, coverage is excluded “loss of use,” “loss of market,” or “Any other 

consequential loss.” (Id. §§ B.2(b). B.4a(5).) To the extent Plaintiff contends it was 

the occurrence of the pandemic or a lack of clientele that caused its economic losses, 

coverage is also excluded. As Florida courts have recognized when interpreting 

policies that “specifically exclude[] loss or damage caused by or resulting from 

consequential loss, delay, loss of use, or loss of market,” to “the extent any loss 

claimed to be a loss of business income . . . was not lost as a direct result of [the 

covered cause of loss] but rather as a consequence of any other reason, then such 

loss is excluded from coverage and there can be no recovery . . . for such loss.” 

Dictiomatic, Inc. v. U.S. Fid. & Guar. Co., 958 F. Supp. 594, 604 (S.D. Fla. 1997); 

see also, e.g., N.H. Ins. Co. v. Hill, 516 F. App’x 803, 805-806 (11th Cir. 2013) 

(interpreting Florida law and enforcing similar clause); Batram, LLC v. Landmark 

Am. Ins. Co., 864 F. Supp. 2d 1229 (N.D. Fla. 2012) (same). Indeed, the Middle 

District of Florida recently applied these exclusions to bar coverage in a similar case 

brought against SOIC. Harvest Moon, 2020 U.S. Dist. LEXIS 189390, at *15 (M.D. 

Fla. Oct. 9, 2020). 

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CONCLUSION

Plaintiff’s Declaratory Judgment centers on its belief that “Defendants” 

wrongly rejected its claim for Business Income, Extra Expense, and Civil Authority 

coverage. Auto-Owners is not a party to the Policy, so it cannot be held liable. And 

SOIC cannot be held liable because Plaintiff’s alleged damages fall outside the scope 

of the Policy’s coverage provisions and fall under the Policy’s exclusions. Plaintiff’s 

Complaint should therefore be dismissed with prejudice.

Dated: April 5, 2021 Respectfully submitted,

COLE, SCOTT & KISSANE, P.A.

4301 West Boy Scout Boulevard

Suite 400

Tampa, FL 33607

Tel.: (813) 509-2613

Fax: (813) 286-2900

Primary e-mail: mark.tinker@csklegal.com

Secondary: kathryn.lopez@csklegal.com

Attorneys for Auto-Owners & Southern-Owners

By: _______________________________

Mark D. Tinker, Esq., B.C.S.

Florida Bar No.: 0585165

CERTIFICATE OF WORD COUNT

Pursuant to Local Rule 7.1(F), I hereby certify that the foregoing motion and 

memorandum contains 6,918 words. 

Dated: April 5, 2021 By: _______________________________

Mark D. Tinker, Esq., B.C.S.

Florida Bar No.: 0585165

Case 3:21-cv-00178-MCR-EMT Document 5 Filed 04/05/21 Page 28 of 30
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REQUEST FOR ORAL ARGUMENT

In accordance with Local Rule 7.1(K), Defendants Southern Owners 

Insurance Company and Auto-Owners Insurance Company respectfully request oral 

argument, which is expected to take no longer than one hour. 

Dated: April 5, 2021 By: _______________________________

Mark D. Tinker, Esq., B.C.S.

Florida Bar No.: 0585165

Case 3:21-cv-00178-MCR-EMT Document 5 Filed 04/05/21 Page 29 of 30
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing was filed with the Clerk of Court 

using the CM/ECF system, which will automatically serve a copy via transmission 

of Notices of Electronic Filing on all counsel of record, on this April 5, 2021.

Respectfully submitted,

COLE, SCOTT & KISSANE, P.A.

4301 West Boy Scout Boulevard

Suite 400

Tampa, FL 33607

Tel.: (813) 509-2613

Fax: (813) 286-2900

Primary e-mail: mark.tinker@csklegal.com

Secondary: kathryn.lopez@csklegal.com

Attorneys for Auto-Owners & Southern-Owners

By: _______________________________

Mark D. Tinker, Esq., B.C.S.

Florida Bar No.: 0585165

076799.000999 4822-2409-6474.2 

Case 3:21-cv-00178-MCR-EMT Document 5 Filed 04/05/21 Page 30 of 30