PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-3124

____________

RHONDA H. WILSON; THE LAW OFFICES OF RHONDA 

HILL WILSON, P.C.,

Appellants

v.

USI INSURANCE SERVICE LLC; HARTFORD 

CASUALTY INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-03384)

District Judge: Honorable Eduardo C. Robreno

_____________

No. 20-3501

____________

TOPPERS SALON & HEALTH SPA, INC.,

Appellant 

v.
2

TRAVELERS PROPERTY CASUALTY COMPANY OF 

AMERICA

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-03342)

District Judge: Honorable Joshua D. Wolson

_____________

No. 20-3594

_____________

4431, INC.; 4431 ASSOC., LP; 3354 WALBERT ASSOC., 

LP; 3354 WALBERT AVENUE ASSOCIATES, LLC; 

BLUE GRILLE HOUSE AND WINE BAR; 4131 

ASSOCIATES CANDLELIGHT INN; 2960 CENTER 

VALLEY PARKWAY, LLC; 

3739 WEST CHESTER PIKE, LLC; MELT RESTAURANT 

GROUP, LLC; PAXOS RESTAURANTS, INC.; MELT 

REAL ESTATE GROUP, LP; TOP CUT STEAKHOUSE,

Appellants

v.

CINCINNATI INSURANCE COMPANIES; 

CINCINNATI INSURANCE COMPANY;

CINCINNATI CASUALTY COMPANY; 

CINCINNATI INDEMNITY COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania
3

(D.C. No. 5:20-cv-04396)

District Judge: Honorable Joseph F. Leeson, Junior

_____________

No. 21-1038

_____________

LH DINING L.L.C., d/b/a River Twice Restaurant,

Appellant

v.

ADMIRAL INDEMNITY COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-01869)

District Judge: Honorable Timothy J. Savage

_____________

No. 21-1039

_____________

NEWCHOPS RESTAURANT COMCAST LLC, 

d/b/a CHOPS,

Appellant

v.

ADMIRAL INDEMNITY COMPANY

____________
4

On Appeal from the District Court

for the Eastern District of Pennsylvania

(D.C. No 2:20-cv-01949)

District Judge: Honorable Timothy J. Savage

_____________

No. 21-1061

_____________

BOULEVARD CARROLL ENTERTAINMENT GROUP, 

INC.,

Appellant

v.

FIREMAN’S FUND INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:20-cv-11771)

District Judge: Honorable Susan D. Wigenton

______________

No. 21-1106

_____________

ADRIAN MOODY; ROBIN JONES, 

d/b/a Moody Jones Gallery,

Appellants

v.
5

TWIN CITY FIRE INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-02856)

District Judge: Honorable Chad F. Kenney

_____________

No. 21-1107

_____________

ATCM OPTICAL, INC; OMEGA OPTICAL, INC; 

OMEGA OPTICAL AT COMCAST CENTER LLC, 

d/b/a OMEGA Optical,

Appellants

v.

TWIN CITY FIRE INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-04238)

District Judge: Honorable Chad F. Kenney

_____________

No. 21-1109

_____________

1 S.A.N.T., INC.,

Appellant
6

v.

NATIONAL FIRE & MARINE INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:20-cv-00862)

District Judge: Honorable William S. Stickman, IV

_____________

No. 21-1175

_____________

INDEPENDENCE RESTAURANT GROUP, LLC 

on behalf of itself and all others similarly situated 

d/b/a Independence Beer Garden,

Appellant

v.

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-02365)

District Judge: Honorable Chad F. Kenney

_____________

No. 21-1240

_____________
7

ULTIMATE HEARING SOLUTIONS II, LLC; 

ULTIMATE HEARING SOLUTIONS III, LLC; 

ULTIMATE HEARING SOLUTIONS IV, LLC; 

ULTIMATE HEARING SOLUTIONS V, LLC; 

ULTIMATE HEARING SOLUTIONS VI, LLC,

Appellants

v.

TWIN CITY FIRE INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-02401)

District Judge: Honorable Chad F. Kenney

____________

No. 21-1294

_____________

WHISKEY FLATS INC., 

T/A Out of Wack Jack’s Bar & Grill,

Appellant

v.

AXIS INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-03451)
8

District Judge: Honorable Chad F. Kenney

_____________

No. 21-1315

____________

THE EYE CARE CENTER OF NEW JERSEY, PA, on 

behalf of itself and all others similarly situated,

Appellant

v.

TWIN CITY FIRE INSURANCE COMPANY

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:20-cv-05743)

District Judge: Honorable Kevin McNulty

_____________

No. 21-1414

_____________

IN THE PARK SAVOY CATERERS LLC, t/a The Park 

Savoy; IN THE PARK CHATEAU CATERERS LLC, on 

behalf of itself and all others similarly situated,

Appellants

v.

SELECTIVE INSURANCE GROUP INC.; SELECTIVE 

CASUALTY INSURANCE COMPANY

____________
9

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:20-cv-06869)

District Judge: Honorable Madeline C. Arleo

____________

Argued: September 28, 2022

____________

Before: CHAGARES, Chief Judge, McKEE*, and PORTER,

Circuit Judges

(Opinion filed: January 6, 2023)

____________

Rhonda H. Wilson

8 Penn Center

1628 John F. Kennedy Boulevard, Suite 400

Philadelphia, PA 19103

Counsel for Appellants in No. 20-3124

Daniel J. Dugan [ARGUED]

Neal R. Troum

Spector Gadon Rosen & Vinci

1635 Market Street, 7th Floor

Philadelphia, PA 19103

Counsel for Appellant in No. 20-3501

Robert A. Freedberg

Christian M. Perrucci [ARGUED]

*

Judge McKee assumed senior status on October 21, 2022.
10

Florio Perrucci Steinhardt Cappelli Tipton & Taylor

91 Larry Holmes Drive, Suite 200

Easton, PA 18042

Counsel for Appellant in No. 20-3594

Walter J. Andrews [ARGUED]

Hunton Andrews Kurth

333 Southeast 2 Avenue, Suite 2400

Miami, FL 33131

Scott P. DeVries

Hunton Andrews Kurth

50 California Street, Suite 1700

San Francisco, CA 94111

Michael S. Levine

Hunton Andrews Kurth

2200 Pennsylvania Avenue, N.W.

Washington, DC 20037

Elbert Lin

Hunton Andrews Kurth

951 East Byrd Street

Riverfront Plaza, East Tower

Richmond, VA 23219

John R. Sawyer

Stark & Stark

993 Lenox Drive

Lawrenceville, NJ 08648

Kevin V. Small
11

Hunton Andrews Kurth

200 Park Avenue

52nd Floor

New York, NY 10166

Counsel for Appellant in No. 21-1061

Laurence S. Berman

Arnold Levin

Daniel C. Levin

Frederick S. Longer

Levin Sedran & Berman

510 Walnut Street, Suite 500

Philadelphia, PA 19106

Counsel for Appellants in Nos. 21-1106, 21-1107, 

21-1038, 21-1039 & 21-1294

Kenneth J. Grunfeld

Golomb Spirt Grunfeld

1835 Market Street, Suite 2900

Philadelphia, PA 19103

Counsel for Appellants in Nos. 21-1106, 21-1107, 

21-1294, 21-1038 & 21-1039

Richard M. Golomb

Golomb Spirt Grunfeld

1835 Market Street, Suite 2900

Philadelphia, PA 19103

Counsel for Appellants in Nos. 21-1038, 21-1039 

& 21-1294

Wilson D. Miles, III 

Rachel N. Minder 
12

Beasley Allen Crow Methvin Portis & Miles

218 Commerce Street

Montgomery, AL 36104

Counsel for Appellant in 21-1294, 21-1106 & 21-1107

Paul W. Evans 

Beasley Allen Crow Methvin Portis & Miles

218 Commerce Street

Montgomery, AL 36104

Counsel for Appellant in 21-1294

R. Bruce Carlson

Carlson Brown

222 Broad Street

P.O. Box 242

Sewickley, PA 15143

Ted A. Hages

Matthew Louik

James C. Martin [ARGUED]

Devin M. Misour

George L. Stewart, II

Colin E. Wrabley

Reed Smith

225 Fifth Avenue, Suite 1200

Pittsburgh, PA 15222

Kelly K. Iverson

Gary F. Lynch

Lynch Carpenter

1133 Penn Avenue, 5th Floor

Pittsburgh, PA 15222

Counsel for Appellant in No. 21-1109
13

Alan M. Feldman

Edward S. Goldis

Daniel J. Mann

Andrew K. Mitnick

Bethany R. Nikitenko

Feldman Shepherd Wohlgelernter Tanner Weinstock & 

Dodig

1845 Walnut Street, 21st Floor

Philadelphia, PA 19103

James A. Francis

David A. Searles

John Soumilas

Francis Mailman Soumilas

1600 Market Street, Suite 2510

Philadelphia, PA 19103

Counsel for Appellant in No. 21-1175

Alan C. Milstein 

Sherman Silverstein Kohl Rose & Podolsky

308 Harper Drive

Suite 200, Eastgate Corporate Center

Moorestown, NJ 08057

Counsel for Appellants in No. 21-1240

James E. Cecchi

Brian F. O’Toole [ARGUED]

Lindsey H. Taylor

Carella Byrne Cecchi Olstein Brody & Agnello

5 Becker Farm Road

Roseland, NJ 07068

Christopher A. Seeger
14

Seeger Weiss

55 Challenger Road, 6th Floor

Ridgefield Park, NJ 07660

Counsel for Appellants in Nos. 21-1414 & 21-1315

Paul J. Geller

Robbins Geller Rudman & Dowd

120 East Palmetto Park Road, Suite 500

Boca Raton, FL 33432

Samuel H. Rudman

Robbins Geller Rudman & Dowd

58 South Service Road, Suite 200

Melville, NY 11747

Counsel for Appellant in No. 21-1315

Bethany Barrese

Saxe Doernberger & Vita

233 Mount Airy Road

Basking Ridge, NJ 07920

Brian J. Clifford

Janie A. Eddy

Saxe Doernberger & Vita

35 Nutmeg Drive, Suite 140

Trumbull, CT 06611

Gregory D. Podolak

Saxe Doernberger & Vita

999 Vanderbilt Beach Road, Suite 603

Naples, FL 34108

Counsel for Amicus Appellant Saxe Doernberger 

& Vita PC
15

Gabriel K. Gillett

Jenner & Block

353 North Clark Street, Suite 4500

Chicago, IL 60654

Counsel for Amici Appellants Pennsylvania Restaurant 

& Lodging Association and Restaurant Law Center in 

Nos. 20-3124, 21-1038, 21-1039, 21-1106, 21-1107, 

21-1109, 21-1175, 21-1240 & 21-1294

Lisa M. Campisi

Blank Rome

1271 Avenue of the Americas

New York, NY 10020

Charles A. Fitzpatrick, IV

Blank Rome

130 North 18th Street

One Logan Square

Philadelphia, PA 19103

Counsel for Amicus Appellant United Policyholders 

Nos. 21-1038, 21-1039, 21-1106, 21-1107, 21-1109 & 

21-1294

Nicholas M. Insua

Reed Smith

599 Lexington Avenue, 22nd Floor

New York, NY 10022

Counsel for Amicus Appellant United Policyholders in

No. 21-1061

Christopher P. Leise

White & Williams

457 Haddonfield Road
16

Liberty View, Suite 400

Cherry Hill, NJ 08002

Marc L. Penchansky

White & Williams

1650 Market Street

One Liberty Place, Suite 1800

Philadelphia, PA 19103

Counsel for Appellee USI Insurance Services LLC in 

No. 20-3124

Wystan M. Ackerman

J. Tyler Butts

Gregory P. Varga

Robinson & Cole

280 Trumbull Street

One Commercial Plaza

Hartford, CT 06103

Counsel for Appellee in No. 20-3501

Richard D. Gable, Jr.

Butler Weihmuller Katz Craig

1818 Market Street, Suite 2740

Philadelphia, PA 19103

Counsel for Appellee in Nos. 20-3501, 21-1106, 21-

1107 & Appellee Hartford Casualty Insurance 

Company in No. 20-3124

Jonathan M. Freiman

David R. Roth [ARGUED]

Wiggin & Dana

One Century Tower

265 Church Street
17

New Haven, CT 06510

Counsel for Appellee in Nos. 21-1240, 21-1106, 21-

1107, 21-1315 & Appellee Hartford Casualty 

Insurance Company in No. 20-3124

Sarah D. Gordon

Steptoe & Johnson

1330 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Appellee in Nos. 21-1315, No. 21-1240, 

21-1106, 21-1107 & Appellee Hartford Casualty 

Insurance Company in No. 20-3124

James L. Brochin

Steptoe & Johnson

1114 Avenue of the Americas, 35th Floor

New York, NY 10036

Ryan M. Chabot

Alan E. Schoenfeld

Wilmer Cutler Pickering Hale & Dorr

7 World Trade Center

250 Greenwich Street

New York, NY 10007

Counsel for Appellee in No. 21-1315

John J. Kavanagh

Steptoe & Johnson

1330 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Appellee in Nos. 21-1106, 21-1107, 21-

1240 & Appellee Hartford Casualty Insurance 

Company in No. 20-3124
18

Caitlin R. Tharp

Steptoe & Johnson

1330 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Appellee in No. 21-1240

Alan I. Becker

Daniel G. Litchfield

Laurence J. W. Tooth

Litchfield Cavo

303 West Madison Street, Suite 303

Chicago, IL 60606

Counsel for Appellees in No. 20-3594

Eric A. Fitzgerald

Hillary Ladov

McAngus Goudelock & Courie

P.O. Box 12519

Columbia, SC 29211

Antonia B. Ianniello

John F. O’Connor, Jr.

Steptoe & Johnson

1330 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Appellees in Nos. 21-1038 & 21-1039

Michael D. Hynes

DLA Piper

1251 Avenue of the Americas, 27th Floor

New York, NY 10020

Brett D. Solberg
19

DLA Piper

845 Texas Avenue, Suite 3800

Houston, TX 77002

Counsel for Appellee in No. 21-1061

Robert L. Byer

Julie S. Greenberg

Duane Morris

625 Liberty Avenue, Suite 1000

Pittsburgh, PA 15222

Damon Vocke

Duane Morris

1540 Broadway

New York, NY 10036

Counsel for Appellee in No. 21-1109

Fred L. Alvarez

David E. Walker

Walker Wilcox Matousek

One North Franklin Street, Suite 3200

Chicago, IL 60606

Paul L. Fields, Jr.

Fields Howell

665 8th Street, N.W.

Atlanta, GA 30318

Marc R. Kamin

Michael J. Smith

Stewart Smith

300 Conshohocken State Road

300 Four Falls Corporate Center, Suite 670

West Conshohocken, PA 19428
20

Gregory L. Mast

Fields Howell

665 8th Street, N.W.

Atlanta, GA 30318

Counsel for Appellee in No. 21-1175

Michael E. DiFebbo, Jr.

Elizabeth A. Sutton

Kennedys CMK

1600 Market Street, Suite 1410

Philadelphia, PA 19103

Kristin V. Gallagher

Kennedys CMK

120 Mountain View Boulevard

P.O. Box 650

Basking Ridge, NJ 07920

Francis X. Simpson, III

Fowler Hirtzel McNulty & Spaulding

1717 Arch Street, Suite 1310

Philadelphia, PA 19103

Counsel for Appellee in 21-1294

Laura A. Brady

William T. Corbett, Jr.

Coughlin Midlige & Garland

350 Mount Kemble Avenue

P.O. Box 1917

Morristown, NJ 07962

Kenneth J. Brown

Amy M. Saharia
21

Williams & Connolly

680 Maine Avenue, S.W.

Washington, DC 20024

Counsel for Appellees in 21-1414

Laura A. Foggan

Crowell & Moring

1001 Pennsylvania Avenue, N.W.

Washington, DC 20004

Counsel for Amici Appellees American Property 

Casualty Insurance Association and National 

Association of Mutual Insurance Companies 

_____________

OPINION OF THE COURT

_______________

CHAGARES, Chief Judge.

The plaintiffs in this consolidated appeal are businesses

(collectively, the “businesses”) that closed or significantly 

limited their operations in March 2020 after the governors of 

the states in which they operate issued orders to curb the spread 

of the coronavirus and the disease it causes, COVID-19. To 

recover the resultant losses, the businesses filed claims under 

their respective commercial property insurance policies (the 

“policies”). Their insurers universally denied coverage,

reasoning that the businesses did not suffer a “physical loss of 

or damage to” property necessary to trigger coverage or that a 

“virus exclusion” applied and barred coverage. 

The businesses then filed lawsuits against their insurers 

to enforce coverage, arguing that their loss of the ability to use 
22

their properties for the properties’ intended business purposes 

is a “physical loss of” property and that no exclusions bar 

coverage, either because the exclusions do not apply or 

because the insurers are estopped from arguing that they do. 

The insurers filed dispositive motions, and the respective

District Courts all found for the insurers. The businesses

appealed. 

We predict how the Supreme Courts of Pennsylvania 

and New Jersey would decide the issues before us and hold that 

the loss of use of a property’s intended business purpose is not 

a physical loss of property covered by the businesses’ 

insurance policies. Because the policies do not cover the 

businesses’ losses, we need not reach the issue of whether the 

virus exclusions or any other exclusions apply. We will 

therefore affirm the judgments and orders of the District 

Courts. 

 

I.

The plaintiffs are businesses in Pennsylvania, New

Jersey, New York, Maryland, and Delaware in the food

service, medical, health and wellness, art, music, and legal

sectors. In March 2020, to curb the spread of COVID-19, the

governors of each of those states issued executive orders

closing or restricting the activities of nonessential businesses

and urging people to stay home whenever possible (the

“closure orders”). The businesses were forced to close or

significantly limit their operations as a result. Restaurants had

to stop on-premises dining and bar service, while medical

providers could no longer perform non-emergent procedures. 

Some businesses that were considered wholly nonessential,

such as fitness centers, had to close entirely. 
23

To recover income lost as a result of the closure orders,

the businesses filed claims with their respective insurers under

their policies’ business income, extra expense, and civil

authority provisions. The business income provisions in the

policies provide coverage for “the actual loss of Business

Income” that the businesses sustain “due to the necessary

‘suspension’ of [their] ‘operations’ during the ‘period of

restoration,’” when the “suspension [is] caused by direct

physical loss of or damage to” the property and the loss or

damage is “caused by or resulting from a Covered Cause of

Loss.” Joint Consolidated Appendix (“J.A.”) 493, 1198, 1615,

2006, 2272, 2811; Appellees’ Supplemental App. (“S.A.”) 37;

Eye Care Joint Appendix (“E.C.J.A.”) 96. See also J.A. 887,

1865; Toppers Joint Appendix (“Toppers App.”) 55; In the

Park Joint Appendix (“I.P.J.A.”) 161, 351 (using materially

similar language).

1

 The extra expense provisions provide

coverage for extra expenses that the businesses “incur during

the ‘period of restoration’ that [they] would not have incurred

if there had been no direct physical loss or damage” to the

property, “caused by or resulting from a Covered Cause of

Loss.” J.A. 493–94, 887, 1865, 2006, 2811–12; Toppers App.

1 While the policies are not all identical, we discern no material 

difference among them for the purpose of this dispute. For 

example, all the policies tie business income and extra expense 

coverage to the “period of restoration,” and the business 

income provisions of all but two use identical “physical loss of 

or damage to” language. The two policies that do not use this 

language nevertheless also require physical loss, see Boulevard 

Carroll Joint Appendix (“B.C.A.”) 65; 4431 Appendix (“4431 

App.”) 108–09, 128, and the minor differences in wording 

therefore do not change our analysis. 
24

55–56. See also J.A. 1198–99, 1615, 2272–73; E.C.J.A. 96–

97; S.A. 37; B.C.A. 65; 4431 App. 109; I.P.J.A. 161, 351

(using materially similar language). And the civil authority

provisions cover losses caused when an “action of civil

authority [] prohibits access to” the insured property due to

physical loss or damage to property other than the insured

premises, caused by “a Covered Cause of Loss.” J.A. 494, 888,

1866, 2007, 2812; Toppers App. 56; 4431 App. 109. See also

J.A. 1199, 1616, 2273; S.A. 38; E.C.J.A. 97; B.C.A. 77;

I.P.J.A. 162, 352 (using materially similar language).

2

The policies generally define covered cause of loss as 

“risks of direct physical loss” not otherwise excluded or 

limited. J.A. 505, 899, 1190, 1607, 1872, 1982, 2264; S.A. 29; 

Toppers App. 66; E.C.J.A. 88. See also J.A. 2767; B.C.A. 111; 

4431 App. 95; I.P.J.A. 150, 340 (using materially similar 

language). The period of restoration is defined as the time 

beginning “with the date of direct physical loss or [] damage” 

and ending on the earlier of (1) the date when the property 

“should be repaired, rebuilt or replaced with reasonable speed 

and similar quality,” or (2) the date the business “is resumed at 

a new, permanent location.” J.A. 1212–13, 1629–30, 2286–

87; S.A. 51–52; E.C.J.A. 110–11. See also J.A. 503, 897, 

1871, 2013, 2819; B.C.A. 117; 4431 App. 128–29; Toppers 

2 There is more variance among the civil authority provisions, 

but each requires “physical loss,” damage, or “physical loss of 

or damage to” another property and an action of civil authority 

prohibiting access to the insured premises because of that loss 

or damage. Because the businesses failed to allege or 

demonstrate physical loss or damage to their or any other 

properties, see infra Part III, those differences are immaterial 

to the present dispute. 
25

App. 64–65; I.P.J.A. 139–40, 329–30 (using materially similar 

language, with some difference — immaterial to this dispute 

— as to when the period of restoration starts).

Most of the policies also contain some form of a socalled “virus exclusion” that excludes from coverage losses 

caused by or relating to a virus. J.A. 516, 910, 1887, 2766; 

Toppers App. 416; I.P.J.A. 136, 326; J.A. 293; 1284, 1703, 

2367; E.C.J.A. 197; J.A. 2029, 2031; B.C.A. 66–67. Some 

policies also exclude “loss or damage caused directly or 

indirectly by . . . [t]he enforcement of any ordinance or law . . 

. [r]egulating the construction, use or repair of any property” 

(the “ordinance or law exclusion”). J.A. 45–46.

The insurers universally denied the businesses’ claims, 

and the businesses filed lawsuits in New Jersey and

Pennsylvania courts to enforce coverage.3 The insurers filed 

dispositive motions — to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), for judgment on the pleadings under Rule 

12(c), or for summary judgment under Rule 56 — which were 

granted by the District Courts. Most courts found that loss of 

use was not a “physical loss of” property within the meaning 

of the policies, 4431 App. 22–23; J.A. 91, 118, 138, 159–60, 

182, 209–10; some reasoned that the policies required physical 

damage to covered property, Toppers App. 646–47; B.C.A 5; 

J.A. 44; and others found that even if there were coverage, a

virus exclusion barred the businesses’ claims, J.A. 22–24; 

I.P.J.A. 6, E.C.J.A. 10. The businesses timely appealed. This 

Court then consolidated these fourteen appeals, given the 

similarities among them. 

3 Most cases were initiated in federal court, while some were 

initiated in state court and then removed to federal court.
26

II.

The District Courts had jurisdiction under 28 U.S.C. §

1332, and we have jurisdiction under 28 U.S.C. § 1291. We

review the District Courts’ grant of the insurers’ dispositive

motions de novo, Watters v. Bd. of Sch. Dirs. of City of

Scranton, 975 F.3d 406, 412 (3d Cir. 2020) (motion to

dismiss); Prusky v. Reliastar Life Ins. Co., 445 F.3d 695, 699

(3d Cir. 2006) (summary judgment); Allah v. Al-Hafeez, 226

F.3d 247, 249 (3d Cir. 2000) (judgment on the pleadings), and

may affirm on any ground supported by the record, Watters,

975 F.3d at 412. We also review de novo the District Courts’

interpretations of state law. Meyer v. CUNA Mut. Ins. Soc’y,

648 F.3d 154, 162 (3d Cir. 2011).

 

We apply the same standard to motions to dismiss and

for judgment on the pleadings, Wolfington v. Reconstructive

Orthopaedic Assocs. II PC, 935 F.3d 187, 195 (3d Cir. 2019): 

“we accept the factual allegations in the complaint as true,

draw all reasonable inferences in favor of the plaintiff, and

assess whether the complaint and the exhibits attached to it

‘contain enough facts to state a claim to relief that is plausible

on its face,’” Watters, 975 F.3d at 412 (motion to dismiss)

(quoting Vorchheimer v. Philadelphian Owners Ass’n, 903

F.3d 100, 105 (3d Cir. 2018)); see also Allah, 226 F.3d at 249

(judgment on the pleadings). We disregard legal conclusions

and recitals of the elements of a cause of action that are

supported only by mere conclusory statements. Oakwood

Lab’ys LLC v. Thanoo, 999 F.3d 892, 904 (3d Cir. 2021). In

reviewing a motion for summary judgment, we apply the same

standard as the District Court, “[d]rawing all reasonable

inferences in favor of the party against whom judgment is

sought” and affirming the grant of the motion “only when no
27

issues of material fact exist and the party for whom judgment

is entered is entitled to judgment as a matter of law.” Prusky,

445 F.3d at 699. Because the businesses’ claims arise under

state law, we predict how the Supreme Courts of Pennsylvania

and New Jersey would decide the issues before us.4 Koppers

Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d Cir.

1996). 

III.

The businesses challenge the District Courts’ dismissals

of their complaints and grants of judgments on the pleadings

and summary judgment to the insurers. Central to this

challenge is whether the businesses’ inability to use their

properties for their intended business purposes constitutes

“physical loss of” property asthat phrase is used in the policies. 

Predicting how the Supreme Courts of Pennsylvania and New

Jersey would decide this issue and following our decision in

Port Authority of New York and New Jersey v. Affiliated FM

Insurance Company, 311 F.3d 226 (3d Cir. 2002), we hold that

it does not.

 

Under both Pennsylvania and New Jersey law, our role 

in interpreting an insurance policy is to “ascertain the intent of 

the parties as manifested by the language of the written 

instrument.” Am. Auto. Ins. Co. v. Murray, 658 F.3d 311, 320

(3d Cir. 2011) (quotation marks omitted) (applying 

Pennsylvania law); Manahawkin Convalescent v.

O’Neill, 85 A.3d 947, 958 (N.J. 2014). We read the policy as 

a whole and in accordance with the plain and ordinary meaning 

4 The parties agree that Pennsylvania and New Jersey law 

applies to this appeal, as do we. 
28

of its terms. Am. Auto. Ins. Co., 658 F.3d at 320; Cypress 

Point Condo. Ass’n, Inc. v. Adria Towers, L.L.C., 143 A.3d 

273, 280 (N.J. 2016). 

Where the policy language is clear and unambiguous, 

we must enforce that language as written. Am. Auto. Ins. Co., 

658 F.3d at 321; Cypress Point Condo. Ass’n, 143 A.3d at 280. 

Language is ambiguous “if it is reasonably susceptible of 

different constructions and capable of being understood in 

more than one sense.” Hutchison v. Sunbeam Coal Corp., 519

A.2d 385, 390 (Pa. 1986); see also Cypress Point Condo. 

Ass’n, 143 A.3d at 280. Ambiguous provisions in an insurance 

policy must be construed in favor of the insured and against the 

insurer. Med. Protective Co. v. Watkins, 198 F.3d 100, 104

(3d Cir. 1999) (applying Pennsylvania law); Flomerfelt v. 

Cardiello, 997 A.2d 991, 996 (N.J. 2010). Whether policy

language is ambiguous “is not a question to be resolved in a 

vacuum.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 

735 A.2d 100, 106 (Pa. 1999). Rather, terms of an insurance 

policy are ambiguous “if they are subject to more than one 

reasonable interpretation when applied to a particular set of 

facts.” Id.; see also Cypress Point Condo. Ass’n, 143 A.3d at 

280. Courts will not, however, “distort the meaning of the 

language or resort to a strained contrivance in order to find an 

ambiguity.” Madison Constr. Co., 735 A.2d at 106. And if 

possible, “a court should interpret the policy so as to avoid 

ambiguities and give effect to all of its provisions.” Am. Auto.

Ins. Co. Auto., 658 F.3d at 321. 

To state a successful claim for coverage under an 

insurance policy, an insured must first make a prima facie 

showing that its claim falls within the policy’s grant of 

coverage. See State Farm Fire & Cas. Co. v. Est. of Mehlman, 
29

589 F.3d 105, 111 (3d Cir. 2009) (applying Pennsylvania law); 

Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 

483 A.2d 402, 408 (N.J. 1984). The insurer then bears the 

burden to demonstrate that a policy exclusion applies. State 

Farm Fire & Cas. Co., 589 F.3d at 111; Hartford Accident & 

Indem. Co., 483 A.2d at 409. “[E]xclusions are always strictly 

construed against the insurer and in favor of the insured.” 

Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206–07 

(3d Cir. 2001) (applying Pennsylvania law); see also Villa v.

Short, 947 A.2d 1217, 1222 (N.J. 2008). If an exclusion 

applies, the insured then bears the burden to show an exception 

to that exclusion applies to restore coverage. Cypress Point 

Condo. Ass’n, 143 A.3d at 286 (applying New Jersey law); N.

Ins. Co. of N.Y. v. Aardvark Assocs., Inc., 942 F.2d 189, 195 

(3d Cir. 1991) (applying Pennsylvania law).

We begin our analysis, therefore, considering whether 

the businesses demonstrated that their claims fall within the 

policies’ grant of coverage, starting with the business income 

and extra expense provisions.

A.

To establish coverage under the business income and

extra expense provisions,

5

the businesses must show that their

operations were suspended because of “direct physical loss of

5 The policies’ extra expense provisions require “direct 

physical loss or damage to property,” while the business 

income provisions generally require “direct physical loss of or 

damage to property.” Because we discern no material 

difference between these two formulations, we analyze the

business income and extra expense provisions together. 
30

or damage to” the properties. The businesses argue that the

loss of their ability to use their properties for their intended

business purposes constitutes “physical loss of” the properties. 

We disagree.

1.

The policies do not define the phrase “physical loss of

or damage,” so we start with the plain meaning of the text. 

Loss means the failure to keep or maintain possession or “the

state or fact of being destroyed.” Loss, MERRIAM WEBSTERUNABRIDGED DICTIONARY ONLINE,

https://unabridged.merriam-webster.com/unabridged/loss (last

visited Oct. 13, 2022); see also Loss, BLACK’S LAW

DICTIONARY (11th ed. 2019). Damage means “injury or harm

to . . . property.” Damage, MERRIAM WEBSTER-UNABRIDGED

DICTIONARY ONLINE, https://unabridged.merriamwebster.com/unabridged/damage (last visited Oct. 13, 2022). 

Under the plain language of the policies, the loss or damage

must be physical, which means “natural[,] tangible, concrete,”

Physical, OXFORD ENGLISH DICTIONARY ONLINE,

https://www.oed.com/view/Entry/143120?rskey=DAEbpp&re

sult=2#eid (last visited Oct. 13, 2022), and “[o]f or relating to,

or involving material things; pertaining to real, tangible

objects,” Physical, BLACK’S LAW DICTIONARY (11th ed.

2019). 

Physical damage to property therefore typically means 

“‘a distinct, demonstrable, and physical alteration’ of its 

structure.” Port Auth. of N.Y. & N.J., 311 F.3d at 235 (quoting 

10 Couch on Ins. § 148.46 (3d ed. 1998)). And physical loss 

of property means a failure to maintain tangible possession of 

the structure. 
31

In Port Authority, however, we explained that

“[p]hysical damage to a building as an entity by sources

unnoticeable to the naked eye must meet a higher threshold.” 

Id. We held that in the case of asbestos contamination,

physical loss or damage to property occurred

only if an actual release of asbestos fibers from

asbestos containing materials has resulted in

contamination of the property such that

its function is nearly eliminated or destroyed, or

the structure is made useless or uninhabitable, or

if there exists an imminent threat of the release

of a quantity of asbestos fibers that would cause

such loss of utility.

Id. at 236 (emphasis added).

 

We applied New Jersey and New York law in Port

Authority, but nothing unique about those states’ laws dictated

the result. For that reason, and because there is no substantive

law in Pennsylvania at odds with our decision, we predict that

the Supreme Court of Pennsylvania would adopt a similar

principle as Port Authority and hold that Port Authority applies

in a case where sources unnoticeable to the naked eye — here,

the coronavirus and resultant closure orders — have allegedly

reduced the use of the property to a substantial degree. This

standard ensures that an insured will have lost tangible

possession of property sufficient to constitute physical loss or

damage. The businesses therefore must show that the

functionalities of their properties were nearly eliminated or

destroyed, that the structures were made useless or
32

uninhabitable, or that there was an imminent risk of either of

those things happening.

The businesses argue that their loss of the ability to use

their properties for their intended business purposes meets this

standard. We disagree. The businesses’ argument is

completely divorced from the physical condition of the

premises. The businesses lost the ability to use their properties

for their intended business purposes because the governors of

the states in which they operate issued orders closing or

limiting the activities of nonessential businesses, not because

there was anything wrong with their properties. The properties

were not destroyed in whole or in part; their structures

remained intact and functional. 

Regardless, the loss of the ability to use property in

certain ways does not render the properties useless or

uninhabitable. The properties could certainly be used or

inhabited, just not in the way the businesses would have liked. 

Restaurants remained open for carry out, and medical

providers could perform emergency procedures. While we

recognize that some wholly nonessential businesses, such as

Toppers Salon & Health Spa, Inc. (“Toppers”), had to close

entirely for a time, again, that closure and resultant loss of use

was due entirely to the closure orders and had nothing to do

with the physical condition of the premises. No one was

“physically restrained” from entering the businesses’

properties, as counsel for Toppers suggested during oral

argument. The closure orders simply prohibited the businesses

from using their properties in certain ways.

 

At bottom, loss of use caused by government edict and

untethered to the physical condition of the premises is not a
33

physical loss or damage to the properties. We therefore hold

that loss of use of intended purpose under the circumstances

presented here is not a physical loss of property within the

meaning of the policies.6

Other terms in the policies support our conclusion that

loss of use must involve some physicality. For instance,

6

 We consider this appeal entirely on its own merits but note 

that every other Court of Appeals and all but one state supreme 

court to have considered this issue also has held that loss of use 

caused by closure orders issued in response to the COVID-19 

pandemic does not constitute physical loss or damage 

sufficient to trigger property insurance coverage. See Legal 

Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29 (1st Cir. 

2022); 10012 Holdings, Inc. v. Sentinel Ins. Co., 21 F.4th 216 

(2d Cir. 2021); Uncork & Create LLC v. Cincinnati Ins. Co., 

27 F.4th 926 (4th Cir. 2022); Terry Black’s Barbecue, L.L.C. 

v. State Auto. Mut. Ins. Co., 22 F.4th 450 (5th Cir. 2022); 

Santo’s Italian Café LLC v. Acuity Ins. Co., 15 F.4th 398 (6th 

Cir. 2021); Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 

F.4th 327 (7th Cir. 2021); Oral Surgeons, P.C. v. Cincinnati 

Ins. Co., 2 F.4th 1141 (8th Cir. 2021); Mudpie, Inc. v. 

Travelers Cas. Ins. Co. of Am., 15 F.4th 885 (9th Cir. 2021); 

Goodwill Indus. of Central Okla., Inc. v. Phila. Indem. Ins. Co., 

21 F.4th 704 (10th Cir. 2021); Gilreath Family & Cosmetic 

Dentistry, Inc. v. Cincinnati Ins. Co., No. 21-11046, 2021 WL 

3870697 (11th Cir. Aug. 31, 2021); Wakonda Club v. Selective 

Ins. Co. of Am., 973 N.W.2d 545 (Iowa 2022); Tapestry, Inc. 

v. Factory Mut. Ins. Co., No. 1 Sept. Term, 2022, 2022 WL 

17685594 (Md. Dec. 15, 2022); Verveine Corp. v. Strathmore 

Ins. Co., 184 N.E.3d 1266 (Mass. 2022); Neuro-Commc’n 

Servs., Inc. v. Cincinnati Ins. Co., No. 2021-0130, 2020 WL 
34

coverage exists only during the “period of restoration,” which

ends when the property should be “repaired, rebuilt or

replaced” or is moved to a new location. As Toppers conceded

during oral argument, there is nothing to repair, rebuild, or

replace in any of these cases. The businesses’ loss of use

would be — and was — cured by an end to the closure orders,

and not by the rebuilding or repairing of any property. We

must read the policies as a whole and give effect to the whole

policy, including the “period of restoration” language. See

USX Corp. v. Liberty Mut. Ins. Co., 444 F.3d 192, 200 (3d Cir.

2006) (“Pennsylvania courts long have admonished that

‘contract terms will not be construed in such a manner so as to

render them meaningless,’ and we decline to do so here.”

(citation omitted)); Cypress Point Condo. Ass’n, 143 A.3d at

280 (“The court’s responsibility [under New Jersey law] is to

give effect to the whole policy, not just one part of it.”

(quotation marks omitted)). The businesses’ proposed

17573883 (Ohio Dec. 12, 2022); Cherokee Nation v. 

Lexington Ins. Co., No. 119,359, 2022 WL 4138429 (Okla. 

Sept. 13, 2022); Sullivan Mgmt., LLC v. Fireman’s Fund Ins. 

Co., No. 2021-001209, 2022 WL 3221920 (S.C. Aug. 10, 

2022); Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co., 515 

P.3d 525 (Wash. 2022) (en banc); Colectivo Coffee Roasters, 

Inc. v. Soc’y Ins., 974 N.W.2d 442 (Wis. 2022); but see

Huntington Ingalls Indus., Inc. v. Ace Am. Ins. Co., No. 2021-

173, 2022 WL 4396475, at *11 (Vt. Sept. 23, 2022) (holding 

that a complaint that alleged COVID-19 adhered to and altered 

property survived judgment on the pleadings under Vermont’s 

“extremely liberal” pleading standard). 
35

interpretation of physical loss or damage would render the

“period of restoration” language superfluous.

 

Recent decisions from the Superior Court of New

Jersey, Appellate Division, also support our conclusion that the

businesses did not suffer physical loss or damage. In three

cases like those before us, the Appellate Division determined

that loss of use caused by New Jersey’s closure orders did not

constitute physical loss or damage under commercial property

insurance policies. See Mac Prop. Grp. LLC & The Cake

Boutique LLC v. Selective Fire & Cas. Ins. Co., 278 A.3d 272

(N.J. Super. Ct. App. Div. 2022); AC Ocean Walk, LLC v. Am.

Guarantee & Liab. Ins. Co., No. A-1824-21, 2022 WL

2254864 (N.J. Super. Ct. App. Div. June 23, 2022); Rockleigh

Country Club, LLC v. Hartford Ins. Grp., No. A-1826-21, 2022

WL 2204374 (N.J. Super. Ct. App. Div. June 21, 2022). Those

decisions are a strong indicator of how the Supreme Court of

New Jersey would decide the issues before us, see Edwards v.

HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir. 2007), and

therefore reinforce our conclusion that there is no business

income or extra expense coverage here.7

7 The Superior Court of Pennsylvania has issued two decisions 

addressing whether property insurance provides coverage for 

losses incurred under circumstances similar to those here. The 

court in MacMiles, LLC v. Erie Ins. Exch., No. 1100 WDA 

2021, 2022 WL 17332910, at *4 (Pa. Super. Ct. Nov. 30, 

2022), held that there was no coverage for loss of use of a 

commercial property unaccompanied by any physical 

alteration or other physical condition that rendered the property 

unusable or uninhabitable. The same panel in Ungarean v. 

CAN, Nos. 490 WDA 2021, 948 WDA 2021, 2022 WL 
36

2.

The businesses make several counterarguments, none of

which are availing.

 

First, the businesses argue that because the policies

cover “physical loss of or damage to property,” loss must mean

something other than damage. We agree, but that does not

change our holding. There can be physical loss without

damage, such as the case of a landslide “leaving [a] home

standing on the edge of and partially overhanging a newlyformed 30-foot cliff” without physically damaging the

structure itself, see Hughes v. Potomac Ins. Co. of D.C., 199

Cal. App. 2d 239, 243, 248–49 (Cal. Dist. Ct. App. 1962), or

“a portable grill or a delivery truck [being] stolen without a

scratch,” Santo’s Italian Café, 15 F.4th at 404. We also agree

17334365, at *4–5, *10–11 (Pa. Super. Ct. Nov. 30, 2022), in 

contrast, determined that the policy at issue was ambiguous 

and held that the policy covered the insured’s COVID-related 

business losses. The differing outcomes make these decisions 

a less useful measure in determining how the Supreme Court 

of Pennsylvania would decide the issues before us, especially 

because questions of insurance coverage are fact intensive 

inquiries that depend on the specific language of a policy. See

Ungarean, 2022 WL 17334365, at *11; MacMiles, 2022 WL 

17332910, at *8 (Panella, J. concurring). We nevertheless 

have carefully reviewed the reasoning of both decisions and 

predict that the Supreme Court of Pennsylvania, like the 

overwhelming majority of state and federal jurisdictions that 

have considered the issue, would determine that the policies 

here are unambiguous and do not cover the businesses’ losses. 
37

with the businesses that the definition of the term “loss” can

include loss of use. But it does not follow that every loss of

use is necessarily a physical loss, and for the reasons explained

above, there was no physical loss here. 

One business, 1 S.A.N.T., Inc. (“1 S.A.N.T.”), argues

that under Port Authority, we must look to the functionality of

the properties and, to do that, we must look to the properties’

intended use.8 Our discussion of “utility” and “function” in

Port Authority, however, was in the context of discussing the

building or structure itself, not the purpose for which the

structure is used. See Port Auth. of N.Y. & N.J., 311 F.3d at

236 (explaining that loss requires that the “structure” be

rendered “uninhabitable and unusable”; that the “form or

quantity” of a contaminant must “make the building unusable”;

and that there is no loss when the “structure continues to

function.” (emphasis added)). When a structure’s function is

nearly eliminated or destroyed, or the property is rendered

uninhabitable or unusable, the building itself is rendered

completely (or almost completely) useless as a structure until

there is remediation or relocation. In other words, there is a

complete (or near complete) dispossession of property,

regardless of the purpose for which that property is used. This

operational utility is what we mean by functionality, not the

intended business purpose at or within a property that is

physically unaffected. 

8 Along the same lines, 1 S.A.N.T. argues that we must

consider the businesses’ intended business purposes because it

is implicit in the policies. Our role, however, is to interpret the

language of the policies as written, and the businesses’

intended purposes is nowhere in the text.
38

Several businesses similarly argue that the actual or

suspected presence of the coronavirus on their premises

rendered the properties unsafe and uninhabitable, comparing

the coronavirus to contamination by noxious substances, such

as ammonia or gasoline, which courts have determined to be

covered under commercial insurance policies. Where courts

have found that such a substance caused physical loss or

damage, however, the substance was present to such a degree

that it became physically dangerous to be inside of the

building, rendering the building useless until there was some

kind of remediation. See Gregory Packaging, Inc. v. Travelers

Prop. Cas. Co. of Am., No. 2:12-cv-04418, 2014 WL 6675934,

at *6 (D.N.J. Nov. 25, 2014) (finding “physical loss of or

damage to” property where an ammonia release in a packaging

facility “physically transformed the air . . . so that it contained

an unsafe amount of ammonia or that the heightened ammonia

levels rendered the facility unfit for occupancy until the

ammonia could be dissipated”); W. Fire Ins. Co. v. First

Presbyterian Church, 437 P.2d 52, 55 (Colo. 1968) (holding

that an accumulation of gasoline around a church constituted a

“loss of use” when the building “became so infiltrated and

saturated” with gasoline that it became “uninhabitable”).

As we explained in Port Authority, the presence of a

dangerous substance alone does not constitute a loss; there is

no physical loss until the substance is “in such form or quantity

as to make the building unusable.” Port Auth. of N.Y. & N.J.,

311 F.3d at 236; see also Western Fire, 437 P.2d at 55

(“[T]here was no direct physical loss sustained on, for

example, the first day that gasoline actually seeped onto the

insured’s premises. To the contrary, no direct physical loss

was incurred by the insured until the [a]ccumulation of

gasoline under and around the church [b]uilt up to the point
39

that there was such infiltration and contamination of the

foundation, walls and rooms of the church building as to render

it uninhabitable and make the continued use thereof

dangerous.”). And here, no business alleged that the

coronavirus was present in its property in such a form or

quantity as to make the property dangerous and uninhabitable. 

Even at its peak, buildings in which the coronavirus inevitably

amassed — such as hospitals and grocery stores — remained

open and inhabitable. Indeed, as the Ultimate Hearing

Solutions businesses9acknowledge, whether the coronavirus

was present in their properties would have made no difference: 

the closure orders applied to nonessential businesses across the

board, regardless of the presence of the virus on the businesses’

properties.

10

 

9 The Ultimate Hearing businesses are Ultimate Hearing 

Solutions II, LLC, Ultimate Hearing Solutions III, LLC,

Ultimate Hearing Solutions IV, LLC, Ultimate Hearing 

Solutions V, LLC, and Ultimate Hearing Solutions VI, LLC. 

10 Boulevard Carroll Entertainment Group, Inc. (“Boulevard

Carroll”), argues that its policy’s provision of communicable

disease coverage — which it concedes does not apply here —

necessarily means that a virus can cause damage. But whether

a virus can cause damage is a separate issue from whether the

coronavirus did cause damage here. No business, including

Boulevard Carroll, pled facts sufficient to suggest that it did. 

At oral argument, Boulevard Carroll stated that it should have,

at least, been given leave to amend its complaint to correct any

pleading deficiencies. We need not reach this issue, however,

because Boulevard Carroll forfeited it. Boulevard Carroll did

not move for leave to amend before the District Court, and it
40

Toppers and 1 S.A.N.T. argue that we should ignore the

“period of restoration” language in the policies. They say,

respectively, that language isrelevant only when coverage may

be prematurely terminated or when a repair is needed. But that

is not what the policies say. Rather, the policies provide that

the insurers “will pay for the [losses the businesses] sustain due

to the necessary ‘suspension’ of [their] ‘operations’ during the

‘period of restoration’.” J.A. 1865 (emphasis added); see also

Toppers App. 55 (using the same language). By providing

business income and extra expense coverage only during the

period of restoration, the plain language of the policies makes

the period of restoration language relevant to any business

income or extra expense claim. We must look to the text of the

policies and when that text is clear, as it is here, enforce that

language as written. Am. Auto. Ins. Co., 658 F.3d at 321;

Cypress Point Condo. Ass’n, 143 A.3d at 280. We therefore

must consider the period of restoration language. 

Finally, the businesses argue that, at the very least, the

policy language is ambiguous. The Eye Care Center of New

Jersey, PA (“Eye Care”), and In The Park Savoy Caterers LLC

failed to develop the argument adequately in its opening brief. 

See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877

F.3d 136, 145 (3d Cir. 2017) (“To be preserved, all arguments

must be supported specifically by ‘the reasons for them, with

citations to the authorities and parts of the record on which the

appellant relies.’ As a result, we have consistently refused to

consider ill-developed arguments or those not properly raised

and discussed in the appellate briefing.” (quoting Fed. R. App.

P. 28(a)(8)(A)); Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442

F.3d 812, 821 n.10 (3d Cir. 2006) (noting that “passing and

conclusory statements do not preserve an issue for appeal”). 
41

and In The Park Chateau Caterers LLC (together, “Park

Caterers”), in particular, argue that because some courts have

found physical loss or damage in purportedly similar

circumstances, the phrase “physical loss of or damage” must

be ambiguous. We are unconvinced. Pennsylvania law rejects

the idea that differing outcomes necessarily means that policy

language is ambiguous. See Madison Constr. Co., 735 A.2d at

106–08 (applying Pennsylvania law) (finding the definition of

“pollutant” “clear[] and unambiguous[]” despite “the wide

divergence of viewpoints among [] jurisdictions” on similar

issues); Lower Paxton Twp. v. U.S. Fid. & Guar. Co., 557 A.2d

393, 400 n.4 (Pa. Super. Ct. 1989) (“reject[ing]” the contention

that “where a provision in an insurance policy has been

construed in different ways by the various courts that have

considered it, this alone mandates that we find the provision

ambiguous”). And under New Jersey law, which governs Eye

Care’s and Park Caterers’ claims, there is no split in authority: 

the Appellate Division has uniformly held that losses caused

by the closure orders are not physical losses. Under the facts

here, the policies unambiguously do not provide coverage

because there has been no physical loss or damage. To find

ambiguity in these cases would require us to “distort the

meaning of the [contractual] language or resort to a strained

contrivance” of the policies, see Madison Constr. Co., 735

A.2d at 106, which we decline to do. 

For all these reasons, we hold that no business has met

its burden to show business income or extra expense coverage

under its respective policy.11

11 Toppers attempts to distinguish itself by arguing that it seeks 

not coverage for lost profits but for continuing operating 

expenses. But under Toppers’s policy, continuing operating 
42

B.

Several businesses also seek civil authority coverage.12 

To establish coverage under the civil authority provisions, the

businesses must demonstrate physical loss or damage to a

property other than the insured premises and that an action of

civil authority prohibited access to the insured premises

because of that loss or damage. The businesses have not met

either requirement.

No business alleged that a property other than the

insured premises was damaged or suffered a physical loss or

that an action of a civil authority prohibited access to the

insured premises because of loss or damage to another

property. Indeed, the closure orders were issued not in

response to property loss or damage but to mitigate health risks

to the public and slow the spread of COVID-19 by limiting

person-to-person exposure. Even more fundamentally, the

closure orders did not prohibit access to the businesses’

properties. The businesses remained physically accessible; the

closure orders merely prohibited certain uses of the buildings. 

See Philadelphia Parking Auth. v. Fed. Ins. Co., 385 F. Supp.

2d 280, 289 (S.D.N.Y. 2005) (applying Pennsylvania law)

(finding no civil authority coverage where the civil authority

expenses are a part of business income and require physical 

loss. Like the other businesses, Toppers has failed to show 

physical loss; it therefore is not entitled to coverage for its 

continuing operating expenses. 

12 The businesses in Nos. 20-3124, 20-3594, 21-1038, 21-1039, 

21-1106, 21-1107, 21-1109, 21-1175, 21-1240, and 21-1294 

raise the issue of civil authority coverage on appeal. 
43

grounded airplanes, which “may have temporarily obviated the

need for Plaintiff’s parking services” but “did not prohibit

access to Plaintiff’s garages and therefore c[ould] not be used

to invoke coverage under Plaintiff’s [insurance] policy”); see

also S. Hosp., Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1141

(10th Cir. 2004) (“We hold that the civil authority provision

does not apply because the FAA’s order grounding flights did

not itself prevent, bar, or hinder access to Southern

Hospitality’s hotels in a manner contemplated by the

policies.”).

For these reasons, we further hold that the businesses 

have failed to establish civil authority coverage. The Court 

empathizes with the difficulties that the businesses faced 

during the pandemic. Our role, however, is to determine 

whether the policies provide coverage for the businesses’ 

losses, and we conclude that there is no coverage under the 

circumstances here. Because no business has demonstrated 

coverage under its policy, it is unnecessary for us to determine 

whether the insurers established that the virus or ordinance and 

law exclusions bar coverage.13

13 Several of the Pennsylvania businesses ask us to certify 

questions to the Supreme Court of Pennsylvania related to the 

meaning of “physical loss of or damage” and the applicability 

of the virus exclusions. We will deny those requests for 

certification because they do not satisfy the factors set forth in 

United States v. Defreitas, 29 F.4th 135, 141–43 (3d Cir. 

2022). 
44

IV.

For the foregoing reasons, we will affirm the judgments

and orders of the District Courts.