PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20

- 3124

____________

RHONDA H. WILSON ; THE LAW OFFICES OF RHONDA

H ILL WILSON

, P.C.,

Appellant s

v.

USI INSURANCE SERVICE LLC ; HARTFORD

CASUALTY INSURANCE CO MPANY

____________

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,

Appellant s

v.

CINCINNATI INSURANCE COMPANIES;

CINCINNATI INSURANCE COMPANY;

CINCIN NATI CASUALTY COMPANY;

CINCINNATI INDEMNITY COMPANY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania3 (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

, Appellant s

v.5 TWIN CITY FIRE INSURANCE COMPA NY

____________

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

, Appellant s

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.,

Appellant6 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 Ea stern 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;

ULT IMATE 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

, Appellant s

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 2 8, 2022

____________

Before: CHAGARES

, Chief Judge

, M c KEE * , and PORTER

,

Circuit Judges

( Opinion f

iled : January 6, 2023 )

____________

Rhonda H. Wilson

8 Penn Center

1628 John F. Kennedy Boulevard , Suite 400

Philadelphia, PA 19103

Counsel for Appellant

s 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 M cKee 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. Small11 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

Frederi ck 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

W ilson D. Miles, III

Rachel N. Minder12 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

- 110913 Alan M. Feldman

Edward S. Goldis

Daniel J. Mann

Andrew K. Mi tnick

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 [AR GUED]

Lindsey H. Taylor

Carella Byrne Cecchi Olstein Brody & Agnello

5 Becker Farm Road

Roseland, NJ 07068

Christopher A. Seeger14 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

Nap les, FL 34108

Counsel for Amicus Appellant Saxe Doernberger

& Vita PC15 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 Uni ted Policyholders in

No. 21

- 1061

Christopher P. Leise

White & Williams

457 Haddonfield Road16 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 Street17 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.

Washingto n, 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 fo r Appellee in Nos. 21

- 1106, 21

- 1107, 21

-

1240 & Appellee Hartford Casualty Insurance

Company in No. 20

- 312418 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 Appellee s in No s . 21

- 1038 & 21

- 1039

Michael D. Hynes

DLA Piper

1251 Avenue of the Americas, 27th Floor

New York, NY 10020

Brett D . Solberg19 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

Micha el J. Smith

Stewart Smith

300 Conshohocken State Road

300 Four Falls Corporate Center, Suite 670

West Conshohocken, PA 1942820 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 & Spauld ing

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. Saharia21 Williams & Connolly

680 Maine Avenue, S.W.

Washington, DC 20024

Counsel for Appellee s 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 close d or significantly

limit ed 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”)

. The ir insurers universally denied coverage

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

or da mage to” propert y 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 use22 their properties for the properties’ intended business purposes

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

coverag e, 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 business es

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

. Be cause 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 executiv e 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

. R estaurants had

to stop on

- premise s dining and bar service, while medical

providers could no longer perform non

- emergen t procedure s

. Some businesses that were considered wholly nonessential

, such as fitness centers, had to close entirely.23 To recover inc ome lost as a result of th e 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 fo r “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 th e 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 resulti ng 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 p rovisions 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. 49 4, 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 ph ysical 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 da te 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 start s )

.

Most of the policies also contain some form of a so

called “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, 20 31 ; B.C.A. 66

– 67

. Some

policies also exclude “loss or damage caused directly or

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

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

(the “ o rdinance or l aw e xclusion”). 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 appeal ed

. This

Court then consolidated these fourteen appeals, given the

similarities amon g 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 1 54, 162 (3d Cir. 2011).

We apply the same standard to motions to dismiss and

f or 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 wheth er 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 L LC v. Thanoo

, 999 F.3d 892, 904 (3d Cir. 2021). In

reviewing a motion for summary judgment, we apply the same

standard as the D istrict C ourt, “[d]rawing all reasonable

inferences in favor of the party against whom judgment is

sought” and affirming the grant of the mo tion “only when no27 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 P ennsylvania

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 as that phrase is used in the policies.

Predicting how the Supreme Courts of Pennsylvania and New

Jersey would decide this issue and f ollowing 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 understoo d 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, 10 4

(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 . C ourts will no t, however, “distort the meaning of the

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

ambiguity.” Madison Constr. Co. , 7 3 5 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 10 5, 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 b urden 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 cover age 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’ e xtra 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 the ir ability to use their pro perties 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

, M ERRIAM W EBSTER

U NABRIDGED D ICTIONA RY O NLINE

, https://unabridged.merriam

- webster.com/unabridged/loss (last

visited Oct. 13, 2022) ; s ee also Loss

, B LACK ’ S L AW

D ICTIONARY (11th ed. 2019)

. D amage means “injury or h arm

to

. . . property

. ” Damage

, M ERRIAM W EBSTER

- U NABRIDGED

D ICTIONARY O NLINE

, https://unabridged.merriam

webster.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

, O XFORD E NGLISH D ICTIONARY O NLINE

, 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

, B LACK ’ S L AW D ICTIONARY (11th ed.

2019).

Physical damag e 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 ent ity by sources

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

Id. W e 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 imm inent threat of the release

of a quantity of asbestos fibers that would cause

such loss of utility

.

Id. at 236 (emphasis added).

W e 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 Auth ority 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. T he businesses therefore must show that the

fun ctionalit ies of their properties were nearly eliminated or

destroyed, that the structures were made useless or32 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 purpose s 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

f or 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 the ir properties. The properties

were not destroyed in whole or in part; their structures

remained intact and functional.

Regardless, t he 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 s ome 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’

pro perties

, as counsel for Toppers suggested during oral

argument. The closure orders simply prohibited the businesses

from us ing 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 a33 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 W e consider this appeal entirely on its own merits but note

that e very other Cou rt 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 & C reate 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

. In dem. 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 WL34 coverage exists only during the “period of restoration,” which

ends when the property should be “repaired, rebuilt or

replac ed ” or is moved to a new location. A s 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. W e

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 & Sto ut, 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 interpr etation 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); Roc kleigh

Country Club, LLC v. Hartford Ins. Grp.

, No. A

- 1826

- 21, 2022

WL 2204374 (N.J. Super. Ct. App. Div. June 21, 2022). Th o se

decisions are a strong indicator of how the Supreme Court of

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

HOVEN SA, 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. Su per. 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 WL36 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

. T here 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 newly

formed 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 (C al. Dist. Ct. App. 1962), or

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

scratch,” Santo’s Italian Café

, 1 5 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

overwhe lming 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 propert ies 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 t hat 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, t here is a

complete (or near complete) dispossession of property,

regardless of the purpose for which th at property is used. This

operational utility is w hat 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 purpose s because it

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

language of the policies as written, and the businesses’

intended purpose s is nowhere in the text.38 S everal businesses similarly argue that the actual or

suspected presence of the coronavirus on their premises

render ed 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 Gregor y 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

t hat 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 substan ce 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 ; s ee also Western Fire

, 437 P.2d at 55

(“[T] here was no di rect 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 point39 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

corona virus was present in its propert y in such a form or

quantity as to make the property dangerous and uninhabitable.

E ven at its peak, buildings in which the coronavirus inevitabl y

amassed

— such as hospitals and grocery stores

— remained

open and inhabitable. Indeed, as the Ultimate Hearing

Solutions businesses 9 acknowledge, 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 C arroll 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 separ ate issue from whether the

coronavirus did cause damage here. No business, includ ing

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 it40 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 is relevant 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 d ue

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

‘period of restoration ’

. ” J

. A

. 1865 (emphasis added) ; see also

Toppers A pp. 55 ( using the same language )

. By providing

business income and extra expense coverage only during the

period o f 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 a s 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

fa iled to dev elop the argument adequately in its opening brief

. See Barna v. Bd. of Sch

. Dir s. 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 refuse d 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’ P a. Hybrids, Inc. v. Doebler

, 442

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

conc lusory 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 un convinced. Pennsylvania law rejects

the idea that differing outcomes necessarily mean s 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 loss es

. 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 “distor t the

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

contrivance” of the polic ies

, see Madison Constr. Co.

, 7 3 5

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 operating42 B.

Several businesses also seek civil authority coverage. 12

To establish coverage under the civil authority provision s

, 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, t he 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. E ven more fundamentally

, the

closure orders did not prohibit access to the businesses’

properties. T he businesses remained physically accessible ; the

clos ur e 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, T oppers 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 grou nded 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”) ; s ee

also S. Hos p., 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 pr ovide 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 bec ause 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.