ACTIVE.124797079.01 216849.601222 

1 

Defendant’s Second Notice of Supplemental Authority 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

DIESEL BARBERSHOP, LLC; 

WILDERNESS OAKS CUTTERS, LLC; 

DIESEL BARBERSHOP BANDERA OAKS, 

LLC; DIESEL BARBERSHOP DOMINION, 

LLC; DIESEL BARBERSHOP ALAMO 

RANCH, LLC; and HENLEY’S 

GENTLEMEN’S GROOMING, LLC, 

 Plaintiffs, 

v. 

STATE FARM LLOYDS, 

 Defendant. 

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CIVIL ACTION NO.: 5:20-cv-00461 

DEFENDANT’S SECOND NOTICE OF SUPPLEMENTAL AUTHORITY 

1. Defendant State Farm Lloyds respectfully submits this second notice of 

supplemental authority bearing on issues raised in its Motion to Dismiss [Dkt. 9, 17]. 

2. On July 29, 2020, the Court heard oral argument on State Farm’s Motion to 

Dismiss. Subsequently, on August 6, 2020, a judge in the Superior Court of the District of 

Columbia granted summary judgment, as a matter of law, on substantially similar claims brought 

by an insured restaurant owner seeking to recover for losses allegedly incurred as a result of 

government stay-at-home orders issued in response to the COVID-19 virus. See Rose’s 1, LLC, 

et al. v. Erie Insurance Exchange, Case No. 2020 CA 002424B (D.C. Super. Ct., August 6, 

2020), Order at pp. 1-3 (attached as Ex. A). 

3. The court’s inquiry turned on the insured’s failure to establish the requisite “direct 

physical loss” to covered property. In making this finding, the court confirmed that “none of the 

cases cited by Plaintiffs stand for the proposition that a governmental edict, standing alone, 

Case 5:20-cv-00461-DAE Document 25 Filed 08/07/20 Page 1 of 13
ACTIVE.124797079.01 216849.601222 

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Defendant’s Second Notice of Supplemental Authority 

constitutes a direct physical loss under an insurance policy.” Id. at p. 5. Unlike here, a virus 

exclusion was not at issue in Rose’s 1. Nevertheless, the court granted judgment for the insurer, 

dismissing the claims as a matter of law. 

Respectfully submitted,

/s/ W. Neil Rambin 

W. NEIL RAMBIN 

ATTORNEY-IN-CHARGE 

State Bar No. 16492800 

rambindocket@faegredrinker.com 

SUSAN E. EGELAND 

State Bar No. 24040854 

susan.egeland@faegredrinker.com 

FAEGRE DRINKER BIDDLE & REATH LLP 

1717 Main Street, Suite 5400 

Dallas, Texas 75201 

(469) 357-2500 (Telephone) 

(469) 327-0860 (Fax) 

OF COUNSEL: 

DOUGLAS W. DUNHAM 

BERT L. WOLFF 

DECHERT LLP 

Three Bryant Park 

1095 Avenue of the Americas 

New York, NY 10036 

(212) 698-3500 (Telephone) 

(212) 698-3599 (Fax) 

douglas.dunham@dechert.com 

bert.wolff@dechert.com

CERTIFICATE OF SERVICE 

I hereby certify that on August 7, 2020, I caused a true and correct copy of the foregoing 

to be filed on the Court’s CM/ECF system, which served notice on all counsel of record. 

/s/ Susan E. Egeland 

SUSAN E. EGELAND 

Case 5:20-cv-00461-DAE Document 25 Filed 08/07/20 Page 2 of 13
EXHIBIT A 

 

Case 5:20-cv-00461-DAE Document 25 Filed 08/07/20 Page 3 of 13
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION—CIVIL ACTIONS BRANCH

ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND 

GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment

(“Plaintiffs’ Motion”) and Defendant’s Cross-Motion for Summary Judgment (“Defendant’s 

Motion”). While the Court is sympathetic to the plight of Plaintiffs, it must grant summary

judgment to Defendant as a matter of law.

I. FACTS

Plaintiffs own and operate a number of prominent restaurants in the District of Columbia. 

They all purchased “Ultrapack Plus Commercial Property Coverage” from Defendant Erie 

Insurance Exchange. Included in this policy is coverage for “loss of ‘income’ and/or ‘rental 

income’” sustained “due to partial or total ‘interruption of business’ resulting directly from ‘loss’ 

or damage” to the property insured. Rose’s 1 Ultrapack Plus Commercial Property Coverage 

(“Coverage”) at 3. The coverage document further states that the “policy insures against direct 

physical ‘loss’” with the exception of several exclusions that are not relevant to this matter. Id. 

at 4.

This case comes in the context of the COVID-19 pandemic. COVID-19 is “a novel 

severe acute respiratory illness that has killed ... more than 100,000 nationwide. At this time,

there is no known cure, no effective treatment, and no vaccine. Because people may be

ROSE’S 1, LLC, et al.,

Plaintiffs,

 v.

ERIE INSURANCE EXCHANGE,

 Defendant.

*

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*

Civil Case No. 2020 CA 002424 B

Civil II, Calendar I

Judge Kelly A. Higashi

Case 5:20-cv-00461-DAE Document 25 Filed 08/07/20 Page 4 of 13
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infected but asymptomatic, they may unwittingly infect others.” South Bay United

Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring). On March 

11, 2020, D.C. Mayor Muriel Bowser declared a state of emergency and a public health 

emergency due to the “imminent hazard of or actual occurrence of widespread exposure” to 

COVID-19. Plaintiffs’ Statement of Material Facts (“SMF”) ¶3. On March 16, Mayor Bowser 

issued an order prohibiting table seating at restaurants and bars in D.C. SMF ¶4. On March 20, 

Mayor Bowser extended this ban to “standing customers at restaurants, bars, taverns, and multipurpose facilities.” SMF ¶5. On March 24, Mayor Bowser ordered the closure of all nonessential businesses. SMF ¶6. On March 30, she ordered all D.C. residents to stay in their 

residences except for limited “essential” reasons, a restriction that continued for several months. 

SMF ¶¶7-8. 

As a result of Mayor Bowser’s orders, the restaurant Plaintiffs were forced to close their 

businesses and suffered serious revenue losses. SMF ¶¶21-22. To cover those losses, they filed 

insurance claims with Defendant pursuant to insurance policies that “are substantively identical 

in all ways relevant to this action.” SMF ¶78. When Defendant denied their claims, Plaintiffs 

filed this lawsuit seeking a declaratory judgment that their claims were covered by the express 

language of their insurance contracts with Defendant. Both sides subsequently moved for 

summary judgment.

II. SUMMARY JUDGMENT STANDARD

D.C. Superior Court Rule of Civil Procedure 56 allows a court to grant summary

judgment to a party when there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. D.C. Super. Ct. Civ. R. 56(a); Perkins v. District of 

Columbia, 146 A.3d 80, 84 (D.C. 2016). In considering a motion for summary judgment, the 

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court must view the evidence “in the light most favorable to the nonmoving party, who is entitled 

to all favorable inferences which may reasonably be drawn from the evidentiary materials.” 

Phelan v. City of Mt. Rainier, 805 A.2d 930, 936 (D.C. 2002) (internal quotation marks omitted). 

The Court “may not resolve issues of fact or weigh evidence at the summary judgment stage.” 

Fry v. Diamond Construction, Inc., 659 A.2d 241, 245 (D.C. 1995) (internal quotation marks 

omitted). Even if no material dispute of fact exists, the moving party must still establish that it is 

entitled to judgment as a matter of law. D.C. Super. Ct. Civ. R. 56(a).

III. ANALYSIS

Under District of Columbia law, “[c]ontract principles are applicable to the interpretation 

of an insurance policy.” Carlyle Inv. Mgmt. LLC v. Ace Am. Ins. Co., 131 A.3d 886, 894 (D.C. 

2016). “The proper interpretation” of an insurance contract, “including whether [the] contract is 

ambiguous, is a legal question.” Id. (internal quotation mark omitted) (quoting Tillery v. D.C. 

Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006)). “[A]n insurance policy is to be . . . 

enforced in accordance with the real intent of the parties as expressed in the language employed 

in the policy.” Redmond v. State Farm Ins. Co., 728 A.2d 1202, 1205 (D.C. 1999) (internal 

quotation marks omitted) (quoting Peerless Ins. Co. v. Gonzalez, 697 A.2d 680, 682 (Conn. 

1997)). A court must “give the words used in an insurance contract their common, ordinary, and 

. . . popular meaning,” Id. (omission in original) (internal quotation marks omitted) (quoting 

Quadrangle Dev. Corp. v. Hartford Ins. Co., 645 A.2d 1074, 1075 (D.C. 1994)), and must 

interpret the contract “as a whole, giving reasonable, lawful, and effective meaning to all its 

terms, and ascertaining the meaning in light of all the circumstances surrounding the parties at 

the time the contract was made,” Carlyle Inv. Mgmt., 131 A.3d at 895 (internal quotation mark 

omitted) (quoting Debnam v. Crane Co., 976 A.2d 193, 197 (D.C. 2009)).

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“[I]f the provisions of the contract are ambiguous, the correct interpretation becomes a 

question for a factfinder.” Carlyle Inv. Mgmt., 131 A.3d 886 at 895 (internal quotation marks 

omitted) (quoting Debnam, 976 A.2d at 197-98). “Where,” however, “insurance contract 

language is not ambiguous, summary judgment is appropriate because a written contract duly 

signed and executed speaks for itself and binds the parties without the necessity of extrinsic 

evidence.” Fogg v. Fidelity Nat. Title Ins. Co., 89 A.3d 510, 514 (D.C. 2014) (internal quotation 

marks omitted) (quoting Stevens v. United Gen. Title Ins. Co., 801 A.2d 61, 66 (D.C. 2002)). 

Indeed, the Court “should not seek out ambiguity where none exists.” Athridge v. Aetna Cas. & 

Sur. Co., 351 F.3d 1166, 1172 (D.C. Cir. 2003) (citing Medical Serv. of Dist. of Columbia v. 

Llewellyn, 208 A.2d 734, 736 (D.C. 1965)).

At the most basic level, the parties dispute whether the closure of the restaurants due to 

Mayor Bowser’s orders constituted a “direct physical loss” under the policy. Plaintiffs start with

dictionary definitions to support their case. For example, they cite the American Heritage 

Dictionary definition of “direct” as “[w]ithout intervening persons, conditions, or agencies; 

immediate.” Plaintiffs’ Motion at 9-10. They also cite the Oxford English Dictionary definition 

of “physical” as pertaining to things “[o]f or pertaining to matter, or the world as perceived by

the senses; material as [opposed] to mental or spiritual.” Id. at 10. As for “loss,” it is defined by 

the coverage document as “direct and accidental loss of or damage to covered property.” 

Coverage at 36.

Plaintiffs use these definitions to make three primary arguments. First, Plaintiffs argue 

that the loss of use of their restaurant properties was “direct” because the closures were the direct 

result of the mayor’s orders without intervening action. Plaintiffs’ Motion at 9-10. But those

orders were governmental edicts that commanded individuals and businesses to take certain 

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actions. Standing alone and absent intervening actions by individuals and businesses, the orders

did not effect any direct changes to the properties. 

Second, Plaintiffs argue that their losses were “physical” because the COVID-19 virus is 

“material” and “tangible,” and because the harm they experienced was caused by the mayor’s 

orders rather than “some abstract mental phenomenon such as irrational fear causing diners to 

refrain from eating out.” Plaintiffs’ Motion at 11. But Plaintiffs offer no evidence that COVID19 was actually present on their insured properties at the time they were forced to close. And the 

mayor’s orders did not have any effect on the material or tangible structure of the insured 

properties.

Third, Plaintiffs argue that by defining “loss” in the policy as encompassing either “loss” 

or “damage,” Defendant must treat the term “loss” as distinct from “damage,” which connotes 

physical damage to the property. Plaintiffs’ Motion at 11-12. In contrast, Plaintiffs argue, “loss” 

incorporates “loss of use,” which only requires that Plaintiffs be deprived of the use of their 

properties, not that the properties suffer physical damage. Id. at 12-13. But under a natural 

reading of the term “direct physical loss,” the words “direct” and “physical” modify the word

“loss.” As such, pursuant to Plaintiffs’ dictionary definitions, any “loss of use” must be caused, 

without the intervention of other persons or conditions, by something pertaining to matter—in 

other words, a direct physical intrusion on to the insured property. Mayor Bowser’s orders were 

not such a direct physical intrusion.

Further, none of the cases cited by Plaintiffs stand for the proposition that a governmental 

edict, standing alone, constitutes a direct physical loss under an insurance policy. In Gregory 

Packaging, Inc. v. Travelers Property Casualty Co. of America, the court found that the release 

of ammonia into a juice cup packaging factory was a “direct physical loss” because it constituted 

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“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.” 2014 U.S. Dist. LEXIS 165232 at *13-19 (D.N.J. 

Nov. 25, 2014) (quoting AFLAC Inc. v. Chubb & Sons, Inc., 260 Ga. App. 306, 319-20 (Ga. Ct. 

App. 2003)) (internal quotation marks omitted) (emphasis added). Similarly, in Western Fire 

Insurance Co. v. First Presbyterian Church, the Colorado Supreme Court found a “direct 

physical loss” when gasoline fumes from an unknown source entered an insured church and the 

fire department ordered the church’s closure. 437 P.2d 52, 55 (Colo. 1968). The court based its 

reasoning on the fact that the church “became so infiltrated and saturated as to be uninhabitable, 

making further use of the building highly dangerous.” Id. At the same time, the Court noted that 

“[i]t is perhaps quite true” that the fire department’s closure order, “standing alone, does not in 

and of itself constitute a ‘direct physical loss.’” Id. (emphasis added). All of the other cases 

cited by Defendant involved some compromise to the physical integrity of the insured property. 

See Port Authority v. Affiliated FM Insurance Co., 311 F.3d 226, 236 (3d Cir. 2002) (presence of 

asbestos in building was not “physical loss” because building owner could not show real or 

imminent “contamination of the property such that its function is nearly eliminated or destroyed, 

or the structure is made useless or uninhabitable”); Motorists Mut. Ins. Co. v. Hardinger, 131 

Fed. Appx. 823, 826-27 (3d Cir. 2005) (presence of bacterium on property could constitute 

“direct physical loss” if it “reduced the use of the property to a substantial degree”); TRAVCO 

Insurance Co. v. Ward, 715 F. Supp. 2d 699, 709-10 (E.D. Va. 2010), aff’d 504 F. Appx. 251 

(4th Cir. 2013) (home rendered uninhabitable by toxic gases released by defective drywall 

constituted “direct physical loss”); Mellin v. Northern Security Insurance Company, Inc., 115 

A.3d 799, 805 (N.H. 2015) (cat urine odor from neighboring apartment may constitute “direct 

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physical loss” if plaintiff could show “distinct and demonstrable alteration to the unit”); Murray 

v. State Farm Fire & Casualty Co., 509 S.E.2d 1, 16-17 (W.Va. 1998) (landslide rendering 

homes uninhabitable, due to either actual physical damage or palpable future risk of physical 

damage from a follow-on landslide, was a “direct physical loss”); Sentinel Management Co. v. 

New Hampshire Insurance Co., 563 N.W.2d 296, 300-01 (Minn. Ct. App. 1997) (asbestos 

contamination in building was “direct physical loss” when “property rendered useless”).

In contrast, courts have rejected coverage when a business’s closure was not due to direct 

physical harm to the insured premises. In Roundabout Theatre Co. v. Continental Casualty Co., 

the City of New York ordered the closure of a theater after a portion of a neighboring building 

under construction collapsed onto the street and adjacent buildings. 302 A.D.2d 1, 2-3 (N.Y. 

App. Div. 2002). The theater itself sustained minor damage that was repaired in one day. Id. at 

3. Nonetheless, the court found that the theater did not suffer a “direct physical loss” as a result 

of the city-mandated closure. Id. at 7. It found that “[t]he plain meaning of the words ‘direct’ 

and ‘physical’” narrowed the scope of coverage and mandated “the conclusion that losses 

resulting from off-site property damage do not constitute covered perils under the policy.” Id. 

Similarly, in Newman Myers Kreines Gross, P.C. v. Great Northern Insurance Co., a federal 

district court found that a law firm did not suffer a “direct physical loss” when an electric utility

preemptively shut off power in advance of Hurricane Sandy. 17 F. Supp. 3d 323 (S.D.N.Y. 

2014). The court distinguished the cases cited by the law firm (several of which were also cited 

by Plaintiffs in this case) as either “involv[ing] the closure of a building due to either a physical 

change for the worse in the premises ... or a newly discovered risk to its physical integrity.” Id. 

at 330. Citing Roundabout, the Court reasoned:

The critical policy language here—"direct physical loss or damage"—similarly, and 

unambiguously, requires some form of actual, physical damage to the insured premises to 

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trigger loss of business income and extra expense coverage. Newman Myers simply

cannot show any such loss or damage to the 40 Wall Street Building as a result of either 

(1) its inability to access its office from October 29 to November 3, 2012, or (2) Con Ed's 

decision to shut off the power to the Bowling Green network. The words "direct" and 

"physical," which modify the phrase "loss or damage," ordinarily connote actual, 

demonstrable harm of some form to the premises itself, rather than forced closure of the 

premises for reasons exogenous to the premises themselves, or the adverse business 

consequences that flow from such closure.

Id. at 331; see also United Airlines, Inc. v. Insurance Co. of State of Pa., 385 F. Supp. 2d 343, 

349 (S.D.N.Y. 2005), aff'd 439 F.3d 128 (2d Cir. 2006) (“The inclusion of the modifier ‘physical' 

before ‘damages’ . . . supports [defendant’s] position that physical damage is required before 

business interruption coverage is paid.”); Philadelphia Parking Auth. v. Federal Insurance Co., 

385 F. Supp. 2d 280, 287-88 (S.D.N.Y. 2005) (noting that “‘direct physical’ modifies both loss 

and damage,” and therefore “the interruption in business must be caused by some physical 

problem with the covered property . . . which must be caused by a ‘covered cause of loss’”).

While the Court can find no published cases in this jurisdiction analyzing the exact term 

“direct physical loss,” cases addressing similar issues do not help Plaintiffs. Most relevantly, in 

Bros., Inc. v. Liberty Mutual Fire Insurance Co., the District of Columbia Court of Appeals 

considered whether a restaurant could recover on its claim after it lost business due to a curfew 

imposed by the D.C. government as a result of the riots following the assassination of Dr. Martin 

Luther King, Jr. in 1968. 268 A.2d 611 (D.C. 1970). The insurance contract included this 

relevant language:

In consideration of the premium for this coverage shown on the first page of this policy

[Building and Contents] . . . the coverage of this policy is extended to include direct loss 

by . . . Riot . . . [and] Civil Commotion . . . .

When this Endorsement is attached to a policy covering Business Interruption, . . . the 

term “direct,” as applied to loss, means loss, as limited and conditioned in such policy, 

resulting from direct loss to described property from perils insured against; . . . .

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Id. at 613 (emphasis in original).1 The Court of Appeals interpreted the term “direct loss” in the 

contract to mean “a loss proximately resulting from physical damage to the property or contents 

caused by a riot or civil commotion.” Id. Under that definition, the Court found that the 

restaurant was unable to recover, since, “at the most,” the restaurant’s lost business due to the 

curfew “was an indirect, if not remote, loss resulting from riots” and there was no “physical 

damage to the property.” Id. Accordingly, while the Court agrees with Plaintiffs that Bros., Inc. 

is not directly on point, the case does support the proposition that, in the context of property

insurance, the term “direct loss” implies some form of direct physical change to the insured 

property.

With both dictionary definitions and the weight of case law supporting Defendant’s 

interpretation of the term “direct physical loss,” Plaintiffs’ additional arguments are 

unconvincing. First, Plaintiffs argue that because the insurance contract has specific exclusions 

for “loss of use” under some coverage lines but not for Income Protection coverage, the Court 

should infer that the Income Protection coverage covers losses such as Plaintiffs’. Plaintiffs’ 

Motion at 13-14. But as already discussed, even if “loss of use” was covered, Plaintiffs would 

still have to show that the loss of use was a “direct physical loss” similar to those in the cases 

discussed supra at 5-7. And for the reasons explained in this order, there was no “direct physical 

loss” to Plaintiffs. Second, Plaintiffs argue that, unlike some similar insurance policies, their 

policies do not include a specific exclusion for pandemic-related losses. Id. at 19-20. But again, 

 

1 This Court notes that the phrase at issue in the Bros., Inc. contract was “direct loss,” as opposed to “direct physical 

loss,” at issue in the present case, and that in the Bros., Inc. case, there was an issue as to whether the “Building and 

Contents” Form, which was mistakenly attached to the policy at the time of signing, or the “Business Interruption” 

Form, which the insurance company later substituted, was construed by the trial court. However, the Court of 

Appeals found it “unnecessary to ascertain which of the two forms was construed by the trial court,” 268 A.2d at 

612, as the Court found that the insurance company prevailed under both forms.

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even in the absence of such an exclusion, Plaintiffs would still be required to show a “direct 

physical loss.” Because they cannot do so, the Court grants summary judgment to Defendant.

Accordingly, it is this 6th day of August, 2020, hereby

ORDERED that Plaintiffs’ Motion for Summary Judgment is DENIED; and it is further

ORDERED that Defendant’s Cross-Motion for Summary Judgment is GRANTED; and 

it is further

ORDERED that judgment is ENTERED in favor of Defendant Erie Insurance Exchange 

and against Plaintiffs, the initial scheduling conference is VACATED, and the case is CLOSED.

___________________________

 Kelly A. Higashi 

Associate Judge 

 (Signed in Chambers) 

COPIES TO:

David L. Feinberg

Michael C. Davis

George E. Reede, Jr.

Jessica Pak

Via CaseFileXpress

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