21

- 2100

- cv BR Rest

. Corp. v. Nationwide Mut

. Ins

. Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 8 t h d ay of A p r i l , two thousand twenty

- two

. 3
4 PRESENT: GUIDO CALABRESI
, 5 GERARD E. LYNCH, 6 RAYMOND J. LOHIER
, JR., 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 BR RESTAURANT CORP., DBA BRUNO’S 10 RESTAURANTE ITALIANO
, 11
12 Plaintiff

- Appellant
, 13
14

v. No. 2 1

- 2100

- cv 15 16 NATIONWIDE MUTUAL INSURANCE 17 COMPANY
, 18 19 Defendant

- Appellee

. 20

------------------------------------------------------------------ 212 1 FOR PLAINTIFF

- APPELLANT: M ICHAEL S. C OLE , Cole Hansen 2 Chester LLP, New York, NY 3
4 FOR DEFENDANT

- APPELLEE: M ARCI G OLDSTEIN K OKALAS , 5 Goldberg Segalla LLP , New ark, 6 NJ 7

Appeal from a judgment of the United States District Court for the Eastern 8

District of New York ( Gary R. Brown
, Judge ). 9

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 10

AND DECREED that the judgment of the District Court is AFFIRMED. 11

BR Restaurant Corp. (“BR”) appeals from the August 26 , 202 1 judgment of 12

the United States District Court for the Eastern District of New York ( Brown
, J. ) 13

dismissing its case against Nationwide Mutual Insurance Company 14

(“Nationwide”) for breach of contract. BR claims that Nationwide improperly 15

denied insurance coverage for the business losses it suffered after New York 16

State imposed restrictions on on

- premises dining in its efforts to curb the 17

COVID

- 19 pandemic

. The District Court dismissed BR’s a mended c omplaint 18

under Federal Rule of Civil Procedure 12(b)(6) after concluding that BR was not 19

entitled to coverage under its insurance policy with Nati onwide for any business 203 losses that resulted from restrictions on how the premises are used
, where there 1

was no direct physical loss or damage to property , whether the business’s 2

premises or other neighboring property

. We assume the parties’ familiarity 3

with the underlying facts and the record of prior proceedings, to which we refer 4

only as necessary to explain our decision to affirm. 5

We review de novo the D istrict C ourt ’ s dismissal under Rule 12(b)(6)

. See 6

Biro v. Condé Nast , 807 F.3d 541, 544 (2d Cir. 2015). “Under New York law, an 7

insurance contract is interpreted to give effect to the intent of the parties as 8

expressed in the clear language of the contract.” 10012 Holdings, Inc. v. Sentinel 9

Ins. Co., Ltd. , 21 F.4th 216, 220 (2d Cir. 2021) (quotation marks omitted). 10

Ambiguities in the contract are resolved “ in the insured’s favor and against the 11

insurer.” U.S. Fid. & Guar. Co. v. Annunziata , 67 N.Y.2d 229, 232 (1986). But 12

“[w]here the provisions of [a] p olicy are clear and unambiguous, they must be 13

given their plain and ordinary meaning, and courts should refrain from 14

rewriting the agreement.” Id. (quotation marks omitted). 15

BR relies on two of the policy’s provisions. First is the policy’s “Civil 16

Authority” provision , which covers losses of business income that stem from 174 civil authority action that “ prohibits access to the [insured] premises due to 1

direct physical loss of or damage to property
, other than at the [ insured ] 2

premises , caused b y or resulting from any Covered Cause of Loss

. ” App’x 29. 3

Second is the “Business Income” provision
, which covers actual loss of business 4

income caused by “the necessary suspension of [the business’s] operations 5

during the period of restoration,” where the suspension “must be caused by 6

direct physical loss of or damage to property at the described premises.” A pp’x 7

27 (quotation marks omitted). We conclude that t he plain text of these 8

provisions makes clear that either d irect physical loss or property damage is a 9

necessary predicate to coverage

. 10

Urging otherwise, B R contends that the se provisions also cover the loss of 11

business income sustained because of New York’s restrictions on on

- premises 12

dining

. We disagree

. “[ U ] nder New York law the term s ‘ direct physical loss ’ 13

and ‘ physical damage ’ . . . do not extend to mere loss of use of a premises, where 14

there has been no physical damage to such premises

. ” 10012 Holdings , 21 F.4 th 155 at 222. 1 Coverage under these provisions therefore requires “actual physical 1

loss of or damage to the insured’s property.” Id. ; see also Roundabout Theatre 2

Co. v. Cont ’ l Cas. Co. , 751 N.Y.S.2d 4 , 8 (1st Dep ’ t 2002) (describing the term 3

“direct physical loss” in an insurance policy as “ clearly and unambiguously 4

provid [ing] coverage only where the insured ’ s property suffers direct physical 5

damage ”)

. 6

In a letter filed pursuant to Rule 28(j) of the Federal Rules of Ap pellate 7

Procedure, BR concedes that 10012 Holdings is factually on point

. It contends, 8

however, that we misapplied New York law in that decision

. We disagree , and 9

we note that no subsequent developments in the New York courts have called 10

that decision in to question. We are therefore bound by our prior decision in 11

10012 Holdings

. See Glob. Reinsurance Corp. of Am. v. Century Indem. Co. , 22 12

F.4th 83, 100

– 01 (2d Cir. 2021) (recognizing our general rule that precedential 13

panel decisions are binding unless and until they are overruled by the Court i n 14

1 BR argues that the District Court improperly relied on federal decisions in issuing its

own decision in this case and therefore somehow contravened Erie R. Co. v. Tompkins
, 304 U.S. 64 (1938)

. But the District Court in fact properly applied New York law to resolve this case.6 banc or by the Supreme Court). Because BR alleges nothing more than the 1

los ses it suffered as a result of restrictions on its use of the premises
, the District 2

Court properly dismissed the Amended Complaint

. 2 3

We have considered BR ’s remaining arguments and conclude that they are 4

without merit. For the foregoing reasons, the judgment of the District Court is 5

AFFIRMED. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe, Clerk of Court 8

2 The district court also briefly analyzed the virus exclusion and determined in a footnote that the exclusion also barred BR’s claims. BR Restaurant Corp. v. Nationwide Mut. In s. Co. , 2021 WL 3878991, at *2 & n.1

. While BR takes issue with that determination on appeal, we need not address any such potential alternative ground for dismissal because we conclude that 10012 Holdings forecloses BR’s claim.