United States Court of Appeals

For the Eighth Circuit 

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No. 21-2199

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Planet Sub Holdings, Inc., Individually and on behalf of all others similarly 

situated; Planet Sub Enterprises, Inc., Individually and on behalf of all others 

similarly situated; 1 Thirty-Nine, Inc., Individually and on behalf of all others 

similarly situated; 2 Thirty-Nine, Inc., Individually and on behalf of all others 

similarly situated

 Plaintiffs - Appellants

v.

State Auto Property & Casualty Insurance Company, Inc.

 Defendant - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: February 15, 2022

Filed: June 6, 2022 

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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges. 

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BENTON, Circuit Judge. 
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A group of restaurants sued their insurer, seeking coverage and damages for 

losses and expenses during the COVID-19 pandemic. The district court1 granted the 

insurer’s motion for judgment on the pleadings, dismissing the case. The restaurants 

appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. 

State Auto Property & Casualty Insurance Company, Inc. insured Planet Sub

Holdings, Inc., Planet Sub Enterprises, Inc., 1 Thirty-Nine, Inc., and 2 Thirty-Nine, 

Inc.—a collection of corporations with 14 sandwich shops in Missouri, Kansas, and 

Oklahoma. 

In 2020, because of the COVID-19 pandemic, public officials suspended all 

“non-essential businesses” where the sandwich shops were located. They were

required to stop in-person dining. They submitted claims for losses, under an 

insurance policy covering “direct physical loss of or damage to” the covered 

property. State Auto denied the claims. The restaurants sued for themselves and a 

proposed class of similarly-situated policy-holders. 

This court reviews de novo the grant of judgment on the pleadings, granting 

all reasonable inferences in favor of the non-moving party. Levitt v. Merck & Co., 

Inc., 914 F.3d 1169, 1171 (8th Cir. 2019). To survive a motion to dismiss, “a 

complaint must contain sufficient factual matter” to “‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

The restaurants contend the district court erred in applying Kansas law rather 

than Kansas, Missouri, and Oklahoma law. This court reviews de novo the district 

court’s choice-of-law determination. St. Paul Fire & Marine Ins. Co. v. Bldg. 

Constr. Enters., Inc., 526 F.3d 1166, 1168 (8th Cir. 2008). State law controls the 

interpretation of the policy. See J.E. Jones Const. Co. v. Chubb & Sons, Inc., 486 

1

The Honorable Brian C. Wimes, United States District Judge for the Western 

District of Missouri. 
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F.3d 337, 340 (8th Cir. 2007). Under Missouri’s choice-of-law rules, which govern 

here, either § 188 or § 193 of the Restatement (Second) of Conflict of Laws applies 

to the interpretation of an insurance contract, absent a choice-of-law provision. See

Viacom, Inc. v. Transit Cas. Co., 138 S.W.3d 723, 724-25 (Mo. banc 2004) (per 

curiam). 

The restaurants do not identify a material conflict between Kansas, Missouri, 

and Oklahoma law. Instead, they argue that at least under Missouri law, “physical 

loss of or damage to” has been interpreted more broadly, and would encompass the 

claims alleged here. This court need not determine which state’s law applies if the 

outcome is the same under each. See, e.g., Prudential Ins. Co. of Am. v. Kamrath, 

475 F.3d 920, 924 (8th Cir. 2007).

Kansas, Missouri, and Oklahoma share basic principles of contract 

interpretation. In all three states, courts read an insurance policy “as a whole, giving 

the words and terms their ordinary meaning, enforcing each part thereof.” BP Am., 

Inc. v. State Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 835 (Okla. 2005). Accord

O’Bryan v. Columbia Ins. Grp., 56 P.3d 789, 792 (Kan. 2002) (construing an 

insurance policy, “a court should consider the instrument as a whole” and if the

“insurance policy’s language is clear and unambiguous, it must be taken in its plain, 

ordinary, and popular sense”); Rice v. Shelter Mut. Ins. Co., 301 S.W.3d 43, 47 

(Mo. banc 2009) (considering an insurance policy as a whole, if it is unambiguous, 

“the contract will be enforced as written”); Farmland Indus., Inc. v. Republic Ins. 

Co. 941 S.W.2d 505, 508 (Mo. banc 1997) (interpreting an insurance policy, courts 

give each term “its ordinary meaning”). 

As discussed in Monday Restaurants, “direct physical loss of or damage to 

property” is not triggered here. Monday Restaurants v. Intrepid Ins. Co, 32 F.4th 

656, 658 (8th Cir. 2022). “[T]here must be some physicality to the loss or damage 

of property—e.g., a physical alteration, physical contamination, or physical 

destruction.” Oral Surgeons P.C. v. Cincinnati Ins. Co., 2 F.4th 1141, 1144 (8th 

Cir. 2021). The restaurants’ focus on distinctions between “loss of” and “damage 
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to” property is irrelevant, because both require “physicality,” which was not 

plausibly alleged here. See Monday Restaurants, 32 F.4th at 658; Pentair, Inc. v. 

American Guarantee & Liab. Ins. Co., 400 F.3d 613, 616 (8th Cir. 2005). 

The cases in Missouri addressing physical contamination are not applicable 

here because the restaurants do not plausibly allege the actual presence of COVID19 on their premises. In Cincinnati Insurance Co. v. German St. Vincent Orphan

Association, Inc., 54 S.W.3d 661, 663, 667 (Mo. App. 2001), the court held that 

asbestos dust generated during construction “caused damage to St. Vincent’s 

property” because it had to be removed in order to restore the premises to an 

asbestos-free condition. See also Mehl v. Travelers Home & Marine Ins. Co., 2018 

WL 11301983, at *1 (E.D. Mo. 2018) (finding coverage where home was infested 

with poisonous brown recluse spiders, rendering it uninhabitable, a “direct physical 

loss” under the policy). Here, the restaurants do not allege any virus that required 

removal from their properties. Cf. Hampton Foods, Inc. v. Aetna Cas. & Sur. Co., 

787 F.2d 349, 352 (8th Cir. 1986) (holding that insured grocery “suffered direct, 

concrete and immediate loss due to extraneous physical damage to the building”). 

The outcome is the same applying Kansas or Oklahoma law. A Kansas district 

court determined “physical loss or damage” in insurance contracts encompasses 

“physical alteration” to the insured’s property. Great Plains Ventures, Inc. v. 

Liberty Mut. Fire Ins. Co., 161 F. Supp. 3d 970, 977-78 (D. Kan. 2016). See 

Promotional Headwear Int’l v. Cincinnati Ins. Co., 504 F. Supp. 3d 1191, 1198

(D. Kan. 2020) (applying the “Great Plains interpretation that ‘physical damage’ 

requires actual, tangible damage” to the COVID-19 context). There was no physical 

alteration here. The Tenth Circuit affirmed a case applying Oklahoma law, 

determining the policy covering “direct physical loss of or damage to property” 

covered only losses “stemming from physical alteration or tangible dispossession of 

property.” Goodwill Indus. of Cent. Okla., Inc. v. Philadelphia Indem. Ins. Co., 

21 F.4th 704, 710-11 (10th Cir. 2021). 
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The restaurants argue in the alternative that they are entitled to coverage under 

the “Limited Extension for Food-Borne Illness.” It expands coverage to include: 

“The suspension of your ‘operations’ at the described premises due to the order of a 

civil authority . . . resulting from the actual or alleged . . . . [e]xposure of the 

described premises to a contagious or infectious disease.” 

State Auto asserts that the restaurants did not properly allege this provision in 

their pleadings, so this court should not consider it. See Gregory v. Dillard’s, Inc., 

565 F.3d 464, 473 (8th Cir. 2009) (en banc) (a court “need not conjure up unpled 

allegations to save a complaint”) (internal citations omitted). But the restaurants

sought coverage under the “Business Income” and “Extra Expense” provisions, 

which incorporate this provision. The Food-Borne Illness extension clearly states 

that it modifies the Business Income and Extra Expense sections to include the 

additional coverage. Both the restaurants and State Auto attached the entire policy 

to their pleadings. This extension was sufficiently incorporated in the restaurants’

pleadings. 

The restaurants argue there is no direct causal language in the Food-Borne 

Illness extension tying the civil authority orders to the restaurants. But the plain, 

ordinary meaning of this extension does not support that view: “resulting from” 

requires a causal connection. The actual or alleged exposure must have been on the 

covered premises, which the restaurants do not plausibly allege. Accord Terry 

Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 22 F.4th 450, 458 (5th Cir. 

2022) (assessing an identical provision, and affirming that civil authority orders must

have a causal relationship with alleged or actual exposure of the covered premises 

to COVID-19 to trigger coverage). 

The restaurants also claim coverage under the policy’s “Civil Authority 

Extension”: 

We will pay for the actual loss of Business Income . . . and necessary 

Extra Expense caused by action of civil authority that prohibits 
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access to the described premises due to direct physical loss of or 

damage to property, other than at the described premises, caused by 

or resulting from any Covered Cause of Loss.

The Civil Authority extension requires a direct physical loss or damage to property. 

Accord Brown Jug, Inc. v. Cincinnati Ins. Co., 27 F.4th 398, 404 (6th Cir. 2022). 

The restaurants do not allege such a loss or damage to any property.

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The judgment is affirmed.

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