IN THE SUPREME COURT OF 

CALIFORNIA

ANOTHER PLANET ENTERTAINMENT, LLC,

Plaintiff and Appellant,

v.

VIGILANT INSURANCE COMPANY,

Defendant and Respondent.

S277893

Ninth Circuit

21-16093

Northern District of California

3:20-cv-07476-VC

May 23, 2024

Chief Justice Guerrero authored the opinion of the Court, in 

which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and 

Evans concurred.
1

ANOTHER PLANET ENTERTAINMENT, LLC v.

VIGILANT INS. CO.

S277893

Opinion of the Court by Guerrero, C. J.

At the outset of the COVID-19 pandemic, and for some 

time thereafter, many businesses were forced to curtail their 

operations or close entirely. Some of these businesses sought 

coverage for their financial losses from their commercial 

property insurers under conventional first-party “all risk” or 

“open peril” insurance policies. These policies generally 

predicate coverage on “direct physical loss or damage” to the 

insured property or nearby property. State and federal courts 

across the country have considered whether conventional 

property insurance policies provide coverage for pandemicrelated losses, including whether the COVID-19 virus satisfies 

the threshold requirement of direct physical loss or damage to 

property. California courts have reached different conclusions 

on this issue, and in this case we accepted a request by the 

United States Court of Appeals for the Ninth Circuit to clarify 

California law in this area. (Cal. Rules of Court, rule 8.548.)

The Ninth Circuit posed the following question: “Can the 

actual or potential presence of the COVID-19 virus on an 

insured’s premises constitute ‘direct physical loss or damage to 

property’ for purposes of coverage under a commercial property 

insurance policy?” (Another Planet Entertainment, LLC v. 

Vigilant Insurance Co. (2022) 56 F.4th 730, 734 (Another 

Planet).)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

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The question arises in the context of a civil lawsuit filed 

by Another Planet Entertainment, LLC (Another Planet) 

against its property insurer, Vigilant Insurance Company 

(Vigilant). Another Planet operates venues for live 

entertainment. It suffered pandemic-related business losses 

when its venues closed, and Vigilant denied Another Planet’s 

subsequent claim for insurance coverage. Another Planet filed 

suit in federal district court, alleging that the actual or potential 

presence of the COVID-19 virus at its venues or nearby 

properties caused direct physical loss or damage to property and 

triggered coverage under its insurance policy. The district court 

granted Vigilant’s motion to dismiss for failure to state a claim, 

and Another Planet appealed. According to the Ninth Circuit, 

the issue on appeal “is whether [Another Planet’s] allegations, 

if taken as true, were sufficient to show ‘direct physical loss or 

damage to property’ as defined by California law.” (Another 

Planet, supra, 56 F.4th at p. 731.) Because the Ninth Circuit 

concluded that resolution of this question of California law could 

determine the outcome of the case pending before it, the Ninth 

Circuit certified the question to this court.

We conclude, consistent with the vast majority of courts 

nationwide, that allegations of the actual or potential presence 

of COVID-19 on an insured’s premises do not, without more,

establish direct physical loss or damage to property within the 

meaning of a commercial property insurance policy. Under 

California law, direct physical loss or damage to property 

requires a distinct, demonstrable, physical alteration to 

property. The physical alteration need not be visible to the 

naked eye, nor must it be structural, but it must result in some

injury to or impairment of the property as property.
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Opinion of the Court by Guerrero, C. J.

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The factual allegations of Another Planet’s complaint, 

which we accept as true for purposes of this proceeding, do not 

satisfy this standard. While Another Planet alleges that the 

COVID-19 virus alters property by bonding or interacting with

it on a microscopic level, Another Planet does not allege that any 

such alteration results in injury to or impairment of the property 

itself. Its relevant physical characteristics are unaffected by the 

presence of the COVID-19 virus.

Another Planet focuses on the virus’s risk to humans, and 

it alleges that the actual or potential presence of the virus 

rendered its properties unfit for their intended use. But the 

mere fact that a property cannot be used as intended is 

insufficient on its own to establish direct physical loss to 

property. Similarly, the fact that a business was forced to 

curtail its operations, in whole or in part, based on pandemicrelated government public health orders is likewise insufficient. 

The restrictions of a government public health order are legal, 

i.e., intangible, in nature. They do not constitute direct physical 

loss or damage to property.

In rare situations, a property may suffer direct physical 

loss where it is not damaged in a conventional sense, including 

where a chemical contaminant or noxious odor infiltrates the 

property and renders it effectively unusable or uninhabitable. 

In such a case, the contaminant or odor may cause direct 

physical loss, but only where the source of the property’s 

unusability or uninhabitability is sufficiently connected to the 

property itself. This situation may arise when the effect of the 

contaminant or odor is so lasting and persistent that the risk of 

harm is inextricably linked or connected to the property. 

Another Planet’s allegations regarding the effect of the COVID19 virus on property fail to meet this standard as well.
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

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While we conclude Another Planet’s allegations are 

insufficient, and it appears that such allegations represent the 

most common allegations in support of pandemic-related 

property insurance coverage, we cannot and do not in this 

proceeding determine that the COVID-19 virus can never cause 

direct physical loss or damage to property. Our contemplation

of the virus and the affected property is necessarily limited by

Another Planet’s factual allegations. Nonetheless, given the 

prevalence of similar circumstances, we answer the Ninth 

Circuit’s question as follows: No, the actual or potential 

presence of COVID-19 on an insured’s premises generally does 

not constitute direct physical loss or damage to property within 

the meaning of a commercial property insurance policy under 

California law.

I. FACTUAL AND PROCEDURAL BACKGROUND

“Because this matter is presently on appeal from a 

dismissal under Federal Rules of Civil Procedure, rule 12(b)(6) 

(28 U.S.C.), we recite the facts as alleged in the operative 

complaint. [Citation.] The question at this stage of the 

litigation is the legal sufficiency of the pleadings. We treat the 

factual allegations as true for purposes of addressing the 

certified question[].” (Kuciemba v. Victory Woodworks, Inc. 

(2023) 14 Cal.5th 993, 1004.)

Another Planet is an independent operator and promoter 

of live entertainment (including concerts, festivals, and events) 

at several venues in California and Nevada. It purchased a 

commercial property insurance policy from Vigilant. The policy 

provided for two main categories of coverage: (1) building and 

personal property coverage and (2) business income and extra 

expense coverage.
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Under the first category, Vigilant promised, “We will pay 

for direct physical loss or damage to [a building or personal 

property] caused by or resulting from a peril not otherwise 

excluded . . . .” It also promised, “We will pay the reasonable 

and necessary costs you incur to protect [the building and 

personal property] at the premises shown in the Declarations 

from imminent direct physical loss or damage caused by or 

resulting from a peril not otherwise excluded . . . .” The policy 

defined “[b]uilding” as “a structure,” “building components,” 

“completed additions,” and “alterations and repairs to the 

structure.” It excluded “land, water or air, either inside or 

outside of a structure.” 

Under the second category of coverage, Vigilant promised, 

“We will pay for the actual: [¶] business income loss you incur 

due to the actual impairment of your operations; and [¶] extra 

expense you incur due to the actual or potential impairment of 

your operations, [¶] during the period of restoration . . . . [¶] 

This actual or potential impairment of operations must be 

caused by or result from direct physical loss or damage by a 

covered peril to property, unless otherwise stated.” 

The policy defined the “[p]eriod of restoration” as “the 

period of time that, for business income, begins: [¶] A. 

immediately after the time of direct physical loss or damage by 

a covered peril to property; or [¶] B. on the date operations 

would have begun if the direct physical loss or damage had not 

occurred, when loss or damage [to new buildings, alterations, or 

personal property] delays the start of operations . . . .” 

Similarly, for extra expense, the period of restoration begins 

“immediately after the time of direct physical loss or damage by 

a covered peril to property.” The policy provided that the period 

of restoration “will continue until your operations are restored, 
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with reasonable speed, to the level which would generate the 

business income amount that would have existed if no direct 

physical loss or damage occurred, including the time required 

to: [¶] . . . repair or replace the property.” The outside limit on 

the length of the period of restoration was “the applicable 

number of days shown as Extended Period in the Declaration, 

beginning on the date that,” as relevant here, “the lost or 

damaged property is actually repaired or replaced and your 

operations are restored.” 

Within this second category, the policy also covered lost 

income and extra expenses incurred as a result of certain 

governmental actions. Vigilant promised, “We will pay for the 

actual: [business income loss or extra expense] you incur due to 

the actual impairment of your operations, directly caused by the 

prohibition of access to [your premises or a dependent business 

premises] by a civil authority. [¶] This prohibition of access by 

a civil authority must be the direct result of direct physical loss 

or damage to property away from such premises or such 

dependent business premises by a covered peril, provided such 

property is within [either one mile or the miles specified in the 

policy’s declaration] from such premises or dependent business 

premises, whichever is greater.”

In early 2020, the COVID-19 virus became a widespread 

concern in the United States. The virus — technically SARSCoV-2, which causes the COVID-19 respiratory illness — is 

highly contagious and potentially fatal. The virus is a physical 

substance. It primarily spreads from person to person via 

airborne respiratory droplets or aerosols containing the virus.

According to Another Planet, indoor and outdoor air is 

normally composed of various gaseous elements and particles. 
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The introduction of respiratory droplets or aerosols containing 

the COVID-19 virus changes the composition of the affected air 

through the addition of such droplets or aerosols. Respiratory 

droplets with the COVID-19 virus can also settle on the surfaces

of real and personal property. The droplets attach to these 

surfaces and, in Another Planet’s view, physically alter them. 

The virus can remain in the air or on surfaces for hours or days. 

Although it is not a primary mode of transmission, a person can 

contract COVID-19 by touching a surface on which the COVID19 virus has been deposited. Another Planet alleges that the 

presence of the droplets containing the COVID-19 virus 

“requires steps to be taken to minimize their spread, such as 

physical distancing, regular disinfection, air filtration, and 

further physical alterations, such as installation of physical 

barriers restricting the movement of the aerosolized droplets.” 

Another Planet asserts there is evidence that remedial 

measures “cannot be assured to eliminate or exclude” the 

COVID-19 virus from its premises. 

Another Planet further alleges that the COVID-19 virus 

was present at its properties, “or would have been present but 

for its efforts to reduce, prevent, or otherwise mitigate its 

presence on its properties.” It maintains that the presence or 

potential presence of the COVID-19 virus caused a “distinct, 

demonstrable, physical alteration to property,” and its presence 

or potential presence prevented or impaired the use of Another 

Planet’s property. Another Planet’s properties were “unsafe and 

unusable.” Given the danger of the COVID-19 virus, “no 

‘rational persons would be content’ to be in a venue likely to 

cause them to contract COVID-19.” Another Planet alleged the 

only way to prevent the presence of the COVID-19 virus was to 

close its venues completely. 
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State and local authorities recognized the public health 

risk of the COVID-19 virus and imposed restrictions on 

individuals and businesses, including Another Planet. Public 

health orders “prohibited or limited the use and operations of 

Another Planet’s insured locations.” Another Planet was forced 

to cancel all events scheduled for its venues and could not use 

its insured locations for their intended purpose. It alleges it 

suffered losses in excess of $20 million. 

In May 2020, Another Planet submitted an insurance 

claim to Vigilant for direct physical loss or damage to its 

properties and consequent economic losses. Vigilant denied 

coverage. It maintained that Another Planet had not shown 

“physical loss or damage that would implicate coverage in this 

matter.” 

Another Planet filed a complaint and, later, a first 

amended complaint against Vigilant in federal district court. It 

alleged causes of action for breach of contract, tortious breach of 

the implied covenant of good faith and fair dealing, and various 

forms of fraud. It also sought declaratory relief. Vigilant moved 

to dismiss the first amended complaint for failure to allege facts 

sufficient to state a claim upon which relief can be granted. 

(Fed. Rules Civ.Proc., rule 12(b)(6), 28 U.S.C.) Vigilant 

primarily argued that Another Planet had not alleged direct 

physical loss or damage to property, which was required to 

trigger coverage under any theory advanced by Another Planet. 

The district court granted Vigilant’s motion to dismiss. It 

found that “Another Planet does not have a claim for loss of 

business income because the closure orders [by state and local 

public health authorities] — and not [the] virus’s alleged 

presence at Another Planet’s facilities — caused it to shut 
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down.” The district court also rejected Another Planet’s attempt 

to tie the closure orders to direct physical loss or damage to 

property. It explained, “[T]hose closure orders were not passed 

as a direct result of property damage at nearby properties.” 

There was no suggestion that the “closure orders were passed 

‘as a direct result’ of the virus having caused actual property 

damage at buildings close to Another Planet’s facilities (or 

anyone else’s facilities for that matter).” (Fn. omitted.) 

Another Planet appealed. After briefing and oral 

argument, the Ninth Circuit issued a written order certifying a 

question of law to this court. (Another Planet, supra, 56 F.4th 

730.) The order identified “conflicting decisions” of the lower 

California courts “regarding whether allegations like Another 

Planet’s suffice to state a viable claim for ‘direct physical loss or 

damage to property.’ ” (Id. at p. 733.) The order stated that the

resolution of this conflict was potentially dispositive of Another 

Planet’s appeal “because if the allegation of the presence or 

potential presence of the COVID-19 virus is sufficient to show 

‘direct physical loss or damage to property,’ the district court 

erred in dismissing Another Planet’s complaint for failure to 

state a claim, and we would remand to the district court for 

further proceedings. Alternatively, if the allegation is not 

sufficient, we would affirm the district court.” (Id. at p. 734.) As 

noted, we agreed to answer the Ninth Circuit’s question, and 

these proceedings followed.

II. DISCUSSION

A. General Principles of Property Insurance

As a leading treatise explains, “The fundamental principle 

of a property insurance contract is to indemnify the owner 

against loss; that is to place the owner in the same position in 
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10

which he or she would have been had no accident occurred.” 

(10A Couch on Insurance (3d ed. 2005) § 148:1.) “ ‘Property 

insurance . . . is an agreement, a contract, in which the insurer 

agrees to indemnify the insured in the event that the insured 

property suffers a covered loss. Coverage, in turn, is commonly 

provided by reference to causation, e.g., “loss caused by . . . ” 

certain enumerated perils.’ ” (Garvey v. State Farm Fire & 

Casualty Co. (1989) 48 Cal.3d 395, 406 (Garvey).) Alternatively, 

the coverage grant may cover all perils “ ‘not specifically 

excepted or excluded (as in an “all risks” policy).’ ” (Ibid.) “ ‘The 

term “perils” in traditional property insurance parlance refers 

to fortuitous, active, physical forces such as lightning, wind, and 

explosion, which bring about the loss.’ ” (Ibid.)

“Historically, property insurance grew out of the 

insurance against the risk of fire which became available for 

ships, buildings, and some commercial property at a time when 

most of the structures in use were made wholly or primarily of 

wood.” (10A Couch on Insurance, supra, § 148:1.) “On this side 

of the Atlantic, fire insurance first developed in the middle of 

the eighteenth century. . . . [T]his was insurance against only 

one cause of loss, or peril — fire. Over time other insured perils, 

such as wind and hail, were added. These insured perils were 

each specified in the insurance policy. For this reason, such 

insurance came to be known as ‘specified-risk’ coverage. It 

insured property against the risk of damage or destruction 

resulting from specified causes of loss.” (Abraham, Peril & 

Fortuity in Property & Liability Insurance (2001) 36 Tort Trial 

& Ins. Prac. L.J. 777, 782–783, fn. omitted.) By contrast, marine 

insurance developed “standardized forms that insured an oceangoing vessel and its cargo against ‘perils of the high seas.’ 

Whereas the development of fire insurance for property on land 
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focused on the danger presented by a specified cause of loss, 

marine insurance typically provided coverage for all risks 

associated with a particular shipment or voyage.” (5 New 

Appleman on Insurance Law Library Edition (2023) § 41.01[1], 

fn. omitted.) “[B]y the middle of the twentieth century, insurers 

adopted the marine insurance approach by offering all-risk 

commercial and homeowners’ property insurance. The 

operative phrase in such policies is contained in the section 

labeled ‘Perils Insured Against,’ and provides coverage against 

the risk of ‘direct physical loss’ to covered property.” (Abraham, 

at p. 783, fn. omitted.)

“As with any insurance, property insurance coverage is 

‘triggered’ by some threshold concept of injury to the insured 

property. Under narrow coverages like theft, the theft is itself 

the trigger. Under most coverages, however, the policy 

specifically ties the insurer’s liability to the covered peril having 

some specific effect on the property. In modern policies, 

especially of the all-risk type, this trigger is frequently ‘physical 

loss or damage’ . . . .” (10A Couch on Insurance, supra, 

§ 148:46.)

This court has not previously interpreted the phrase 

“physical loss or damage” (or “direct physical loss or damage”) 

as the phrase is commonly used in property insurance policies. 

Even prior to the COVID-19 pandemic, however, the Courts of 

Appeal decided several cases that turned on the meaning of this 

phrase. Without at this point endorsing their reasoning, we 

summarize the most pertinent of these opinions to provide 

context for the parties’ contentions and our discussion below.

In one early case, the Court of Appeal considered a 

property insurance policy that “insured plaintiffs against all 
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risks of physical loss of and damage to their dwelling.” (Hughes 

v. Potomac Ins. Co. (1962) 199 Cal.App.2d 239, 242 (Hughes).) 

The plaintiffs owned a home adjacent to a creek, and one night 

“the earth to the rear of and partially underlying plaintiffs’ 

house slid into the creek, leaving their home standing on the 

edge of and partially overhanging a newly formed 30-foot cliff. 

This landslide resulted in the loss to plaintiffs of a block of earth 

30 feet wide and 100 feet long, and it deprived them of subjacent 

and lateral support essential to the stability of their house.” (Id. 

at p. 243.) The insurance company argued it was not 

responsible for the cost of shoring up the hillside because “its 

policy insured the building structure and foundations of 

respondents’ house, but did not insure the soil or land 

underneath the building.” (Id. at p. 245.)

The Hughes court disagreed: “To accept [the insurer’s] 

interpretation of its policy would be to conclude that a building 

which has been overturned or which has been placed in such a 

position as to overhang a steep cliff has not been ‘damaged’ so 

long as its paint remains intact and its walls still adhere to one 

another. Despite the fact that a ‘dwelling building’ might be 

rendered completely useless to its owners, [the insurer] would 

deny that any loss or damage had occurred unless some tangible 

injury to the physical structure itself could be detected. 

Common sense requires that a policy should not be so 

interpreted in the absence of a provision specifically limiting 

coverage in this manner. [Plaintiffs] correctly point out that a 

‘dwelling’ or ‘dwelling building’ connotes a place fit for 

occupancy, a safe place in which to dwell or live. It goes without 

question that [plaintiffs’] ‘dwelling building’ suffered real and 

severe damage when the soil beneath it slid away and left it 

overhanging a 30-foot cliff. Until such damage was repaired and 
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the land beneath the building stabilized, the structure could 

scarcely be considered a ‘dwelling building’ in the sense that 

rational persons would be content to reside there.” (Hughes, 

supra, 199 Cal.App.2d at pp. 248–249.)

Several decades later, a different Court of Appeal 

confronted direct physical loss or damage more directly. (Ward 

General Ins. Services, Inc. v. Employers Fire Ins. Co. (2003) 

114 Cal.App.4th 548 (Ward).) Due to human error — “an 

operator inadvertently pressed the ‘delete’ key on the 

keyboard” — the plaintiff suffered a computer “ ‘crash’ ” that 

resulted in the loss of electronically stored data. (Id. at p. 550 

& fn. 3.) “Plaintiff incurred extra expenses restoring its data, 

and also suffered the loss of business income because of the 

disruption.” (Id. at p. 550.) The plaintiff sought insurance 

coverage on the theory that its lost data constituted a “ ‘direct 

physical loss.’ ” (Ibid.) The parties did not submit “any evidence 

suggesting that the phrase ‘direct physical loss’ has some 

technical meaning or special meaning given by usage.” (Id. at 

p. 556.) The court therefore construed the terms in accordance 

with their ordinary meanings: “The word ‘physical’ is defined, 

inter alia, as ‘having material existence’ and ‘perceptible esp. 

through the senses and subject to the laws of nature.’ (MerriamWebster’s Collegiate Dict. (10th ed. 1993) p. 875.) ‘MATERIAL 

implies formation out of tangible matter.’ (Id. at p. 715.) 

‘Tangible’ means, inter alia, ‘capable of being perceived esp. by 

the sense of touch.’ (Id. at p. 1200.) Thus, relying on the 

ordinary and popular sense of the words, we say with confidence 

that the loss of plaintiff’s database does not qualify as a ‘direct 

physical loss,’ unless the database has a material existence, 

formed out of tangible matter, and is perceptible to the sense of 

touch.” (Ward, at p. 556.)
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Because a database consists of organized information, and 

therefore “the loss of a database is the loss of organized 

information,” the Ward court held that the loss of the database

was not a direct physical loss. (Ward, supra, 114 Cal.App.4th at 

p. 556.) “Plaintiff did not lose the tangible material of the 

storage medium. Rather, plaintiff lost the stored information. 

The sequence of ones and zeros can be altered, rearranged, or 

erased, without losing or damaging the tangible material of the 

storage medium.” (Ibid.)

This requirement of tangible or physical harm took on 

similar importance in Doyle v. Fireman’s Fund Ins. Co. (2018) 

21 Cal.App.5th 33 (Doyle). In that case, a wine collector 

purchased “close to $18 million of purportedly rare, vintage 

wine,” but it turned out to be counterfeit. (Id. at p. 36.) The 

collector’s insurance policy covered “ ‘direct and accidental loss 

or damage to covered property.’ ” (Id. at p. 38.) The court 

proceeded from the premise that “ ‘property insurance is 

insurance of property. While in the modern setting “just about 

any type of property” may be insured, the insured item must 

nonetheless be property.’ ” (Ibid.) “ ‘Given this premise, the 

threshold requirement for recovery under a contract of property 

insurance is that the insured property has sustained physical 

loss or damage. [Citation.] “The requirement that the loss be 

‘physical,’ given the ordinary definition of that term is widely 

held to exclude alleged losses that are intangible or incorporeal, 

and, thereby, to preclude any claim against the property insurer 

where the insured merely suffers a detrimental economic impact 

unaccompanied by a distinct, demonstrable, physical alteration 

of the property.” ’ ” (Ibid.) The same principle applied even 

though the collector’s insurance policy did not use the word 

“physical” in its grant of coverage: “[G]iven the fundamental 
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nature of property insurance, the policy [the collector] 

purchased only insured him against potential harms to the wine 

itself, such as fire, theft, or abnormal spoilage; [the collector] did 

not insure himself against any potential financial losses.” (Id. 

at p. 39.) Thus, “because nothing happened to the covered 

property (i.e., the wine that [the collector] purchased and 

insured),” the property did not suffer any loss and the insurer 

properly denied coverage. (Id. at p. 38.)

In MRI Healthcare Center of Glendale, Inc. v. State Farm 

General Ins. Co. (2010) 187 Cal.App.4th 766 (MRI Healthcare), 

the Court of Appeal discussed some of these same concepts. A 

plaintiff purchased an insurance policy providing coverage for 

“ ‘accidental direct physical loss to business personal property,’ ” 

as well as lost business income as a result of “accidental direct 

physical loss to property . . . caused by an insured loss.” (Id. at 

p. 771, italics omitted.) The plaintiff, a healthcare provider, was 

required to “demagnetize[]” or “ ‘ramp[] down’ ” its magnetic 

resonance imaging (MRI) machine in order to facilitate repairs 

to the roof of the building in which it was housed. (Id. at p. 770.) 

“Once the machine was ramped down, it failed to ramp back up. 

This failure purportedly constituted ‘damage’ to the MRI 

machine and resulted in loss of business income to [the 

plaintiff].” (Ibid.)

To determine coverage, the MRI Healthcare court looked 

to general principles described in the Couch treatise: “In 

modern policies, ‘ “physical loss or damage” ’ is typically the 

trigger for coverage. [Citation.] Clearly, this threshold is met 

when an item of tangible property has been ‘physically altered’ 

by perils such as fire or water. [Citation.] However, serious 

questions crop up in instances when the structure of the 

property itself is unchanged to the naked eye and the insured 
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claims its usefulness for its normal purposes has been destroyed 

or reduced. [Citation.] That the loss needs to be ‘physical,’ given 

the ordinary meaning of the term, is ‘widely held to exclude 

alleged losses that are intangible or incorporeal, and, thereby, 

to preclude any claim against the property insurer when the 

insured merely suffers a detrimental economic impact 

unaccompanied by a distinct, demonstrable, physical alteration 

of the property.’ ” (MRI Healthcare, supra, 187 Cal.App.4th at 

pp. 778–779, quoting 10A Couch on Insurance, supra, § 148:46.) 

The court continued, “A direct physical loss ‘contemplates an 

actual change in insured property then in a satisfactory state, 

occasioned by accident or other fortuitous event directly upon 

the property causing it to become unsatisfactory for future use 

or requiring that repairs be made to make it so.’ ” (MRI 

Healthcare, at p. 779, quoting AFLAC Inc. v. Chubb & Sons, Inc. 

(Ga.Ct.App. 2003) 581 S.E.2d 317, 319.)

In the court’s view, “there was no ‘distinct, demonstrable 

[or] physical alteration’ of the MRI machine.” (MRI Healthcare, 

supra, 187 Cal.App.4th at p. 779.) “The failure of the MRI 

machine to satisfactorily ‘ramp up’ emanated from the inherent 

nature of the machine itself rather than actual physical 

‘damage.’ As [the insurer] suggests, the MRI machine was not 

‘damaged’ in the ordinary meaning of the word. In effect, the 

machine was turned off and could not be turned back on. This 

does not constitute a compensable ‘direct physical loss’ under 

the policy.” (Id. at p. 780.) “For there to be a ‘loss’ within the 

meaning of the policy, some external force must have acted upon 

the insured property to cause a physical change in the condition 

of the property, i.e., it must have been ‘damaged’ within the 

common understanding of that term.” (Ibid.) The plaintiff 

“failed to show any ‘physical loss’ occurred to the MRI machine” 
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and therefore could not recover under its insurance policy. 

(Ibid.)

B. The Conflict Underlying the Certified Question

Against this backdrop, California courts confronted

insurance claims arising from the COVID-19 pandemic. In its 

certification order, the Ninth Circuit identified a split in the 

California Courts of Appeal regarding the prospect for insurance 

coverage for pandemic-related losses. (Another Planet, supra, 

56 F.4th at pp. 733–734.) United Talent Agency v. Vigilant 

Ins. Co. (2022) 77 Cal.App.5th 821 (United Talent) held, as a 

matter of law, that “the presence or potential presence of the 

[COVID-19] virus does not constitute direct physical damage or 

loss.” (Id. at p. 838.) By contrast, Marina Pacific Hotel &

Suites, LLC v. Fireman’s Fund Ins. Co. (2022) 81 Cal.App.5th 96 

(Marina Pacific) held that a plaintiff had sufficiently alleged 

direct physical loss or damage based on the presence of the 

COVID-19 virus. (Id. at pp. 108–109.) We examine each opinion 

in greater detail below.

In United Talent, the plaintiff was a large talent agency 

representing various professionals in the entertainment 

industry. (United Talent, supra, 77 Cal.App.5th at p. 824.) It 

purchased property insurance from Vigilant, in a form 

substantially similar to Another Planet’s policy. (Id. at pp. 824–

825.) At the outset of the COVID-19 pandemic, government 

closure orders impaired the talent agency’s ability to use its 

insured locations. (Id. at p. 826.) The orders also caused the 

cancellation of live events and motion picture and television 

productions. (Ibid.) The talent agency suffered lost profits, lost 

commissions, and lost business opportunities in excess of 

$150 million. (Id. at p. 825.) Vigilant denied the talent agency’s 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

18

insurance claim, and the trial court sustained Vigilant’s 

demurrer to the talent agency’s subsequent complaint. (Id. at 

pp. 826, 828.)

On appeal, the talent agency offered “two theories for why 

its losses were covered under the business expense provisions. 

First, [the talent agency] contend[ed] that the ‘danger posed by’ 

the virus, which gave rise to the closure orders and other 

restrictions, caused ‘physical loss’ because it ‘limited [the 

agency’s] use of and operations at its insured locations,’ 

including dependent business premises, such as concert venues, 

thus ‘rendering them unusable for their intended purposes.’ 

Second, [the talent agency] assert[ed] that the virus itself in or 

around [the agency’s] insured locations caused ‘physical 

damage.’ ” (United Talent, supra, 77 Cal.App.5th at pp. 829–

830.)

The United Talent court relied on MRI Healthcare, supra, 

187 Cal.App.4th 766, and an earlier COVID-19 insurance

opinion in Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 

71 Cal.App.5th 688 (Inns-by-the-Sea), to discern the scope of the 

talent agency’s insurance coverage, particularly the 

requirement of direct physical loss or damage. (United Talent, 

supra, 77 Cal.App.5th at p. 830.) Initially, the court noted, “In 

the wake of the COVID-19 pandemic, many insureds have 

asserted arguments similar to [the agency’s], and the majority 

of courts have rejected them. It is now widely established that 

temporary loss of use of a property due to pandemic-related 

closure orders, without more, does not constitute direct physical 

loss or damage.” (Id. at pp. 830–831.) In that situation, an 

insured “ ‘cannot reasonably allege that the presence of the 

COVID-19 virus on its premises is what caused the premises to 

be uninhabitable or unsuitable for their intended purpose.’ ” 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

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(Id. at p. 831.) “[E]ven if [the insured] had eradicated the virus 

by thoroughly sterilizing its properties, ‘[the insured] would still 

have continued to incur a suspension of operations because the 

Orders would still have been in effect and the normal 

functioning of society still would have been curtailed.’ ” (Id. at 

p. 832.) The loss alleged by the talent agency “ ‘was not a 

physical deprivation of property, but rather an interruption in 

business operations.’ ” (Id. at p. 833.) The “ ‘mere loss of use of 

physical property to generate business income, without any 

other physical impact on the property, does not give rise to 

coverage for direct physical loss.’ ” (Id. at p. 834.)1

The United Talent court next confronted the talent 

agency’s alternative argument, that “the physical presence of 

the virus on [its] insured premises constituted ‘physical 

damage.’ ” (United Talent, supra, 77 Cal.App.5th at p. 834.) 

The agency contended its allegations were “akin to cases that 

‘have recognized that “direct physical loss or damage to 

property” occurs’ in the presence of contaminants such as 

bacteria, smoke, asbestos, fumes, or mold.” (Ibid.) The court 

disagreed, identifying numerous cases from other jurisdictions 

that had rejected similar arguments. (Id. at pp. 835–836 & 

fn. 10.) It quoted a federal appellate court’s observation that, 

“ ‘[w]hile the impact of the virus on the world . . . can hardly be 

overstated, its impact on physical property is inconsequential: 

deadly or not, it may be wiped off surfaces using ordinary 

1 Shortly before United Talent, the court in Musso & Frank 

Grill Co., Inc. v. Mitsui Sumitomo Ins. USA, Inc. (2022) 

77 Cal.App.5th 753, 756, 759 also followed Inns-by-the-Sea and 

held that government closure orders did not trigger coverage for 

pandemic-related losses. (See United Talent, supra, 

77 Cal.App.5th at p. 831, fn. 7.)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

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cleaning materials, and it disintegrates on its own in a matter 

of days.’ ” (Id. at p. 835.) The United Talent court also repeated 

the following hypothetical, originally offered by a federal district 

court: “ ‘If, for example, a sick person walked into one of 

Plaintiffs’ restaurants and left behind COVID-19 particulates 

on a countertop, it would strain credulity to say that the 

countertop was damaged or physically altered as a result.’ ” 

(Ibid.) The United Talent court reasoned that “the virus exists 

worldwide wherever infected people are present, it can be 

cleaned from surfaces through general disinfection measures, 

and transmission may be reduced or rendered less harmful 

through practices unrelated to the property, such as social 

distancing, vaccination, and the use of masks. Thus, the 

presence of the virus does not render a property useless or 

uninhabitable, even though it may affect how people interact 

with and within a particular space.” (Id. at p. 838.) Thus, the 

court concluded that the talent agency “has not established that 

the presence of the virus constitutes physical damage to insured 

property.” (Id. at p. 840.)

Several months later, the Marina Pacific court disagreed. 

(Marina Pacific, supra, 81 Cal.App.5th at pp. 111–112.) The 

plaintiffs in Marina Pacific were the owners of a hotel and 

adjacent restaurant who alleged that “the COVID-19 virus was 

present on, and had physically transformed, portions of [their] 

insured properties,” thus causing direct physical loss or damage 

and triggering coverage for their pandemic-related economic 

losses. (Id. at p. 99.) In large part, the owners’ insurance policy 

was the same as the insurance policy obtained by Another 

Planet. (Id. at pp. 99–100.) But the policy also provided 

coverage for losses caused by a “ ‘communicable disease event,’ ” 

which was defined as “ ‘an event in which a public health 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

21

authority has ordered that a location be evacuated, 

decontaminated, or disinfected due to the outbreak of a 

communicable disease at such location.’ ” (Id. at p. 100, boldface

omitted.) The insurer promised to pay “ ‘for direct physical loss 

or damage’ to insured property ‘caused by or resulting from a 

covered communicable disease event,’ including costs necessary 

to repair or rebuild insured property damaged or destroyed by 

the communicable disease and to ‘[m]itigate, contain, remediate, 

treat, clean, detoxify, disinfect, neutralize, cleanup, remove, 

dispose of, test for, monitor and assess the effects [of] the 

communicable disease.’ In addition, business interruption 

coverage was provided for suspension of operations during a 

period of restoration, provided the suspension was ‘due to direct 

physical loss or damage to property at a location caused by or 

resulting from a covered communicable disease event.’ ” (Ibid.)

The Marina Pacific plaintiffs alleged that “the COVID-19 

virus does not simply live on the surface of objects. Rather, ‘it 

also actually bonds and/or adheres to such objects through 

physico-chemical reactions involving, inter alia, cells and 

surface proteins’ and ‘caus[es], among other things, a distinct, 

demonstrable or physical alteration to property.’ ” (Marina 

Pacific, supra, 81 Cal.App.5th at p. 101.) They further alleged 

that the virus was present on various objects at the insured 

properties and in the air. (Ibid.) Moreover, they alleged, “in 

response to multiple employees of [the hotel] testing positive, 

‘various public health authorities have ordered that [the hotel]

be evacuated, decontaminated, or disinfected,’ and specifically 

alleged one employee had been ordered by the Los Angeles 

County Department of Health–Environmental Health Division 

to ‘evacuate the hotel and quarantine.’ ” (Id. at pp. 101–102.) 

“The physical loss or damage to property, the insureds alleged, 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

22

required the closure or suspension of operations at [the hotel 

and restaurant] or portions of those properties at various times 

and caused them to incur extra expense, adopt remedial and 

precautionary measures ‘to attempt to restore and remediate 

the air and surfaces at the Insured Properties, dispose of 

property damaged by COVID-19 and limit operations at the 

Insured Properties.’ ” (Id. at p. 102.) The insurer successfully 

demurred on the ground that these allegations did not state a 

claim for coverage, and the plaintiffs appealed. (Id. at pp. 103–

104.)

On appeal, the Marina Pacific court acknowledged MRI 

Healthcare’s interpretation of direct physical loss or damage as 

requiring “ ‘a “distinct, demonstrable, physical alteration” of the 

property.’ ” (Marina Pacific, supra, 81 Cal.App.5th at p. 107.) 

The court also acknowledged the plaintiffs’ criticism of MRI 

Healthcare’s interpretation, but it found it unnecessary to 

resolve the dispute. (Id. at pp. 107–108.) The court held that 

the plaintiffs had alleged direct physical loss or damage to 

property even under MRI Healthcare’s interpretation of the 

phrase. (Id. at p. 108.) It emphasized that the plaintiffs had 

alleged the COVID-19 virus was present on surfaces throughout 

their properties, the virus “bonds to surfaces through 

physicochemical reactions involving cells and surface proteins, 

which transform the physical condition of the property,” and the 

presence of the COVID-19 virus caused the plaintiffs to “close or 

suspend operations in whole or in part at various times and 

incur[] extra expense as they adopted measures to restore and 

remediate the air and surfaces at the insured properties. The 

[plaintiffs] specifically alleged they were required to ‘dispose of 

property damaged by COVID-19 and limit operations at the 

Insured Properties.’ ” (Id. at pp. 108–109.) The presence of the 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

23

virus was therefore a “distinct, demonstrable, physical 

alteration of the property,” which “caused a slowdown in, or 

cessation of, the operation of the insureds’ business while the 

covered property was restored or remediated, thereby triggering 

their business interruption (‘business income and extra 

expense’) coverage.” (Id. at p. 109.)

The Marina Pacific court “recognize[d] this conclusion is 

at odds with almost all (but not all) decisions considering 

whether business losses from the pandemic are covered by the 

business owners’ first person commercial property insurance.” 

(Marina Pacific, supra, 81 Cal.App.5th at p. 109.) It had three 

primary responses. First, the court noted that “the pleading 

rules in federal court are significantly different from those we 

apply when evaluating a trial court order sustaining a 

demurrer.” (Ibid.) California courts do not evaluate the 

plausibility of a plaintiff’s allegations when determining 

whether to accept them as true. (Ibid.) Thus, the court 

accepted — “ ‘however improbable’ ” — the owners’ allegation 

that “the COVID-19 virus alters ordinary physical surfaces 

transforming them into fomites[2]through physicochemical 

processes, making them dangerous and unusable for their 

intended purposes unless decontaminated.” (Id. at p. 110.) 

Second, the court observed that the allegations considered by 

many courts were materially different because they relied on

government closure orders, rather than the presence of the virus 

itself, as the cause of the insureds’ losses. (Id. at pp. 110–111.) 

2 A fomite is “ ‘an object . . . that may be contaminated with 

infectious agents (such as bacteria or viruses) and serve in their 

transmission.’ ” (United Talent, supra, 77 Cal.App.5th at p. 826, 

fn. 5.)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

24

Third, the court emphasized that the insurance policy at issue

specifically included coverage for communicable diseases, in its 

communicable disease event coverage extension. (Id. at p. 112.) 

The language of this extension “explicitly contemplates that a 

communicable disease, such as a virus, can cause damage or 

destruction to property and that such damage constitutes direct 

physical loss or damage as defined in the policy.” (Ibid.) The 

court explained, “Construing the policy provisions together, as 

we must, this language precludes the interpretation that direct 

physical loss or damage categorically cannot be caused by a 

virus.” (Ibid.)3

3 The court in Amy’s Kitchen, Inc. v. Fireman’s Fund Ins. 

Co. (2022) 83 Cal.App.5th 1062, 1068 (Amy’s Kitchen) examined 

a communicable disease event coverage extension in some 

detail. The court noted that the extension provided coverage for 

“ ‘direct physical loss or damage’ ” to property, including costs 

incurred to “ ‘[m]itigate, contain, remediate, treat, clean, 

detoxify, disinfect, neutralize, cleanup, remove, dispose of, test 

for, monitor, and assess the effects [of] the communicable 

disease.’ ” (Ibid., boldface omitted.) It rejected the insurer’s 

argument that such costs were not recoverable “unless the 

communicable disease event physically altered the property.” 

(Id. at p. 1069.) The court reasoned that the communicable 

disease event extension was unlike the policy provisions where 

courts had found a physical alteration requirement. (Ibid.) 

Instead, “[o]n reading the phrase ‘direct physical loss or damage’ 

as it appears in the extension, a reasonable layperson would 

assume that the phrase includes costs incurred for each of the 

three purposes specified in” the extension itself. (Id. at p. 1070.) 

Thus, the court held, “[T]he need to clean or disinfect infected or 

potentially infected covered property constitutes ‘direct physical 

loss or damage’ of that property within the meaning of the 

policy.” (Id. at p. 1071.) However, the plaintiff had not alleged 

a “ ‘communicable disease event’ ” sufficient to trigger coverage, 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

25

The Marina Pacific court disagreed with United Talent

that the ability to remove the COVID-19 virus from surfaces 

precluded coverage. (Marina Pacific, supra, 81 Cal.App.5th at 

p. 111.) It stated, “Even if there had been evidence subject to 

proper judicial notice to establish that disinfecting repaired any 

alleged property damage, it would not resolve whether 

contaminated property had been damaged in the interim, nor 

would it alleviate any loss of business income or extra expenses. 

As the insureds argue on appeal, the duration of exposure may 

be relevant to the measure of policy benefits; it does not negate 

coverage.” (Id. at p. 112.)

Subsequent California decisions have offered variations 

on the themes of United Talent and Marina Pacific. Several 

courts followed United Talent (and the earlier Inns-by-the-Sea) 

to hold that government closure orders alone are insufficient to 

trigger coverage because they do not cause direct physical loss 

or damage to property. (See Starlight Cinemas, Inc. v. 

Massachusetts Bay Ins. Co. (2023) 91 Cal.App.5th 24, 38–39 

(Starlight Cinemas); Tarrar Enterprises, Inc. v. Associated 

Indemnity Corp. (2022) 83 Cal.App.5th 685, 687–688; Apple 

Annie, LLC v. Oregon Mutual Ins. Co. (2022) 82 Cal.App.5th 

919, 923, 934 (Apple Annie).) Another court extended this 

principle. (See Best Rest Motel, Inc. v. Sequoia Ins. Co. (2023) 

88 Cal.App.5th 696 (Best Rest).) It held that even if the COVID19 virus was present at an insured property, the plaintiff must 

i.e., “ ‘an event in which a public health authority has ordered 

that a location be evacuated, decontaminated, or disinfected due 

to the outbreak of a communicable disease at such location.’ ” 

(Ibid.) The Amy’s Kitchen court therefore held that the trial 

court properly sustained the insurer’s demurrer, but the 

plaintiff should have been given leave to amend. (Id. at p. 1072.)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

26

show the presence of the virus — rather than public health 

orders or negative economic conditions overall — caused its 

losses. (Id. at p. 706.) The court explained, “The dispositive 

issue in this case is not whether there was COVID-19 in the 

hotel, or whether fomites are a form of physical damage, but 

instead is whether the presence of COVID-19 in or on the 

insured property caused the hotel’s loss of income.” (Ibid.) It

held that the plaintiff had not created a triable issue of fact that 

the virus itself caused its losses: “[E]ven if [the plaintiff] had 

eradicated all traces of COVID-19 from its premises, it still 

would have suffered the same lost income.” (Id. at p. 708.)

By contrast, Coast Restaurant Group, Inc. v. Amguard 

Ins. Co. (2023) 90 Cal.App.5th 332, 340 (Coast Restaurant) held 

that public health orders could trigger coverage in and of 

themselves. The orders “physically affected the property 

because they affected how the physical space of the property and 

the physical objects (chairs, tables, etc.) in that space could or 

could not be used,” and they constituted a loss because “the 

governmental restrictions . . . deprived the appellant of 

important property rights in the covered property.” (Ibid.) 

Nonetheless, despite the possibility of coverage, the court held 

that the plaintiff could not prevail based on specific policy 

exclusions for loss or damage caused by “ ‘enforcement of any 

ordinance or law’ ” or by “ ‘[a]ny virus, bacterium or other 

microorganism that induces or is capable of inducing physical 

distress, illness or disease.’ ” (Id. at pp. 343–344.)

In two later cases, the Marina Pacific court reaffirmed its 

holding that the presence of the COVID-19 virus on an insured’s 

property may constitute direct physical loss or damage to 

property. (Shusha, Inc. v. Century-National Ins. Co. (2022) 

87 Cal.App.5th 250, 264, review granted Apr. 19, 2023, S278614
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

27

(Shusha); see JRK Property Holdings, Inc. v. Colony Ins. Co. 

(2023) 96 Cal.App.5th 1, 4, review granted Dec. 20, 2023, 

S282657.) The court confirmed its view that a plaintiff “is not 

required to provide authority at the pleading stage to support 

its position that contamination with the COVID-19 virus caused 

damage to the surfaces in its premises.” (Shusha, at p. 265.) 

Importantly, the court extended Marina Pacific’s interpretation 

of direct physical loss or damage even to policies that, unlike 

Marina Pacific, did not extend special coverage to communicable 

disease events. (Id. at pp. 265–266.) There was “a sufficient,

independent basis for lost business income coverage under the 

policy provision for losses due ‘to the necessary suspension of 

[the insured’s] operation during the period of restoration arising 

from direct physical loss or damage to [covered] property.’ ” 

(Ibid.)

A different court likewise followed Marina Pacific and 

held that allegations of molecular interaction between the 

COVID-19 virus and the surfaces of insured property were 

sufficient to allege direct physical loss or damage. (San Jose 

Sharks, LLC v. Superior Court (2023) 98 Cal.App.5th 158, 168

(San Jose Sharks).) But it determined that the policy’s 

contamination exclusion, which “unambiguously exclude[d] 

physical loss or damage in the form of viral contamination from 

the scope of coverage,” largely precluded recovery. (Id. at 

p. 171.)

Reviewing a number of these decisions, the court in 

Endeavor Operating Co., LLC v. HDI Global Ins. Co. (2023) 

96 Cal.App.5th 420, review granted December 13, 2023, 

S282533 (Endeavor), disagreed with Marina Pacific and Shusha

that the presence of COVID-19 on an insured’s property, and 

allegations that COVID-19 adsorbed or interacted with surfaces 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

28

of the property, were sufficient to trigger coverage. (Id. at 

pp. 441–442.) The Endeavor court explained, “[T]he type of viral 

interaction with surfaces alleged by Endeavor (and accepted as 

true) does not, as a matter of law, satisfy the default definition 

of ‘direct physical harm or loss to property.’ ” (Id. at p. 442, fn. 

omitted.) The court further disagreed with Coast Restaurant

that public health orders, in and of themselves, could constitute 

a physical loss to property. It observed, “Every other California 

decision has rejected that view and instead held that ‘ “direct 

physical loss or damage” ’ requires ‘physical alteration’ of the 

property, such that mere loss of the property’s use will generally 

not suffice — except when the policy explicitly includes loss of 

use due to a virus as qualifying for coverage.” (Id. at p. 434.)

Still another court agreed in principle that a plaintiff “may 

fall within the insurance property damage coverage provisions 

by showing the COVID-19 virus altered its property and caused 

physical damage.” (Santa Ynez Band of Chumash Mission 

Indians v. Lexington Ins. Co. (2023) 90 Cal.App.5th 1064, 1070, 

review granted July 12, 2023, S280353.) But, in the context of 

a motion for summary judgment, the court held that a plaintiff 

must show “that the virus actually caused physical damage to 

its property.” (Id. at p. 1072.) “If there is alteration of property 

without physical damage, then there is no proof of an economic 

loss that can be compensated under the policy. The ordinary 

meaning of the term ‘physical damage to property’ does not 

include a virus on the property.” (Ibid.) The plaintiff, which 

owned and operated a casino and resort, failed to make a 

sufficient showing of damage. (Id. at p. 1073.) It did not provide 

evidence, “for example, that its carpeting, gaming tables, 

gambling devices, and playing cards had to be replaced or could 

not be used again.” (Ibid.) The casino and resort’s “physical 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

29

building structure remained intact and was not changed. 

[Plaintiff’s] employees worked there before, during, and after 

the shutdown. . . . There was no showing of the type of damage 

that policyholders could reasonably expect to be compensated 

for, such as alteration causing damage by fire, flood, or by 

physical impact to the property.” (Ibid.)

Lastly, the court in John’s Grill, Inc. v. The Hartford 

Financial Services Group, Inc. (2022) 86 Cal.App.5th 1195, 

1211, review granted March 29, 2023, S278481, sidestepped 

these disputes and found coverage under a policy’s “Limited 

Fungi or Virus Coverage Endorsement.” The court interpreted 

the triggering language for coverage under this endorsement as 

“includ[ing] but . . . not restricted to ‘direct’ and ‘physical’ forms 

of loss or damage.” (Id. at p. 1215.) While the policy placed 

certain conditions on coverage, the court found the operative 

paragraph “indecipherable when applied to viruses.” (Id. at 

p. 1221.) These conditions rendered any coverage under the 

endorsement illusory, and therefore they could not be enforced. 

(Id. at p. 1224.)

C. The Parties’ Positions

As noted, the Ninth Circuit posed the following question: 

“Can the actual or potential presence of the COVID-19 virus on 

an insured’s premises constitute ‘direct physical loss or damage 

to property’ for purposes of coverage under a commercial 

property insurance policy?” (Another Planet, supra, 56 F.4th at 

p. 734.) The parties, naturally, disagree about the correct

answer.

Another Planet urges an answer in the affirmative. It 

contends the COVID-19 virus causes both direct physical 

damage and direct physical loss to property. It notes that the
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

30

COVID-19 virus is a physical substance, and “[l]ike any physical 

substance, it interacts with its environment, including the cells 

it infects, and the air and other matter it contaminates.” (Fn.

omitted.) The COVID-19 virus bonds or attaches to particles in 

the air and the surfaces of objects. In Another Planet’s view, 

when the COVID-19 virus “attaches or binds to surfaces and 

objects, it converts those surfaces and objects to active 

fomites. . . . People can become infected by touching surfaces

where [the COVID-19 virus] is present, then touching their eyes, 

nose, or mouth. The physical alteration from an object to a 

fomite makes physical contact with those previously safe, inert 

surfaces (e.g., handrails, doorknobs, bathroom fixtures) unsafe.” 

(Fns. omitted.) Thus, according to Another Planet, the COVID19 virus contaminates physical property and physically 

damages it. In addition, Another Planet argues the presence of 

the COVID-19 virus causes direct physical loss to property 

because it renders property unusable for its intended use. It 

relies on Hughes, supra, 199 Cal.App.2d at page 249 for the 

proposition that a property suffers direct physical loss when 

“rational persons” would not “be content” to use the property for 

its intended purpose, given the risk of contracting the COVID19 illness. Another Planet criticizes MRI Healthcare for 

allegedly equating physical loss with physical damage and 

requiring a “ ‘distinct, demonstrable, physical alteration’ of the 

property” for both. (MRI Healthcare, supra, 187 Cal.App.4th at 

p. 779, quoting 10A Couch on Insurance, supra, § 148:46.) For 

both physical loss and physical damage, Another Planet relies 

heavily on the opinion of the Supreme Court of Vermont in 

Huntington Ingalls Industries, Inc. v. Ace American Ins. Co. (Vt. 

2022) 287 A.3d 515 (Huntington Ingalls), which held that a 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

31

plaintiff had stated a claim for insurance coverage based on the 

presence of the COVID-19 virus at its insured properties. 

Vigilant disagrees, citing what it describes as the 

overwhelming majority of state and federal courts to consider 

the issue. It argues that “because viral particles resting on inert 

physical property do not cause any structural alteration to the 

property, the temporary presence of such particles does not 

qualify as ‘direct physical damage or loss’ to the property as a 

matter of law.” Vigilant acknowledges that “when viral particles 

contaminate an inert surface . . . the surface may become a 

vector of transmission known as a ‘fomite.’ [Citation.] But when 

an object becomes a ‘fomite,’ the object itself has not physically 

changed in any way. The word ‘fomite’ is merely a label used to 

describe an object where viral particles rest and can be 

transferred to other humans who touch the object.” Vigilant 

contends that such property is not damaged; it need not be 

replaced or repaired. At most, it should be cleaned, but for 

Vigilant such a cleaning “does not constitute a ‘repair’ of broken 

property any more than does mopping up spilled water or 

brushing off a dusty tabletop.” Vigilant defends MRI Healthcare

and asserts that “limitations on the use of undamaged property 

that remains in the insured’s possession do not qualify as a 

‘direct physical loss.’ ” (Italics omitted.) In Vigilant’s view, the 

fact that the virus’s physical presence caused a loss of use is 

insufficient without a physical loss: “[T]he word ‘physical’ 

modifies ‘loss to property,’ not the cause of the loss.” Vigilant 

allows that a physical force might render property “entirely 

‘unusable or uninhabitable’ for any purpose,” thus causing a 

physical loss, but it contends such a situation is entirely 

distinguishable from the “temporary presence of” the COVID-19 

virus. 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

32

D. Principles of Interpretation

The Ninth Circuit’s question and the parties’ arguments 

require us to interpret the phrase “direct physical loss or 

damage to property” in the insurance policy Vigilant issued to 

Another Planet. “As a question of law, the interpretation of an 

insurance policy is reviewed de novo under well-settled rules of 

contract interpretation.” (E.M.M.I. Inc. v. Zurich American 

Ins. Co. (2004) 32 Cal.4th 465, 470.) “ ‘ “While insurance 

contracts have special features, they are still contracts to which 

the ordinary rules of contractual interpretation apply.” 

[Citation.] Thus, “the mutual intention of the parties at the time 

the contract is formed governs interpretation.” [Citation.] If 

possible, we infer this intent solely from the written provisions 

of the insurance policy. [Citation.] If the policy language ‘is 

clear and explicit, it governs.” ’ ” (Yahoo Inc. v. National Union 

Fire Ins. Co. (2022) 14 Cal.5th 58, 67 (Yahoo).)

“ ‘The “clear and explicit” meaning of these provisions, 

interpreted in their “ordinary and popular sense,” unless “used 

by the parties in a technical sense or a special meaning is given 

to them by usage” [citation], controls judicial interpretation. 

[Citation.]’ [Citations.] A policy provision will be considered 

ambiguous when it is capable of two or more constructions, both 

of which are reasonable. [Citation.] But language in a contract 

must be interpreted as a whole, and in the circumstances of the 

case, and cannot be found to be ambiguous in the abstract. 

[Citation.] Courts will not strain to create an ambiguity where 

none exists.” (Waller v. Truck Ins. Exchange, Inc. (1995) 

11 Cal.4th 1, 18–19.) “Thus, if the meaning a layperson would 

ascribe to contract language is not ambiguous, we apply that 

meaning.” (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 

822 (AIU Insurance).)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

33

E. Plain Meaning

Another Planet’s insurance policy uses the phrase “direct 

physical loss or damage” several times, but it is not defined in 

the policy itself. It appears undisputed that the adjectives 

“ ‘direct’ ” and “ ‘physical’ ” apply to “ ‘damage,’ ” as well as 

“ ‘loss.’ ” (Ward, supra, 114 Cal.App.4th at p. 554.) It also 

appears undisputed that direct physical loss and direct physical 

damage must differ in their meaning somehow, even if they 

overlap. (See Starr Surplus Lines Ins. Co. v. Eighth Judicial 

Dist. (Nev. 2023) 535 P.3d 254, 262 (Starr Surplus) [“though the 

disjunctive ‘or’ directs that each word retains its own meaning, 

[citation], they are not wholly ‘distinct concept[s]’ ”].) We 

therefore examine each phrase in turn.

1. Direct Physical Damage to Property

Notwithstanding the split identified by the Ninth Circuit, 

and the parties’ disagreement regarding the ultimate question 

of insurance coverage here, the available authorities in 

California and elsewhere reflect a substantial degree of 

consensus regarding the meaning of direct physical damage to 

property. As the Inns-by-the-Sea court noted, “The words in the 

phrase ‘direct physical damage’ all have commonly understood 

meanings. ‘Physical’ is defined as ‘having material existence: 

perceptible especially through the senses and subject to the laws 

of nature.’ [Citation.] ‘Direct’ is defined as ‘proceeding from one 

point to another in time or space without deviation or 

interruption,’ ‘stemming immediately from a source,’ and 

‘characterized by close logical, causal, or consequential 

relationship.’ [Citation.] ‘Damage’ is defined as ‘loss or harm 

resulting from injury to . . . property . . . .’ ” (Inns-by-the-Sea, 

supra, 71 Cal.App.5th at pp. 699–700.) Another Planet’s 

preferred authority adopted these same definitions, even as it 
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34

found for the insured. (See Huntington Ingalls, supra, 287 A.3d 

at pp. 525–526.)

It is self-evident, of course, that “property insurance is 

insurance of property. While in the modern setting ‘just about 

any type of property’ may be insured, the insured item must 

nonetheless be property. [¶] Given this premise, the threshold 

requirement for recovery under a contract of property insurance 

is that the insured property has sustained physical loss or 

damage.” (Simon Marketing, Inc. v. Gulf Ins. Co. (2007) 

149 Cal.App.4th 616, 622–623 (Simon Marketing).) Thus, for 

direct physical damage to property to occur, the property itself 

must have been physically harmed or impaired. (See Starr 

Surplus, supra, 535 P.3d at p. 262 [“the plain language of ‘direct 

physical . . . damage to covered property’ requires a material or 

tangible harm or injury directed toward the property itself,” fn. 

omitted].)

It is also evident, based on the plain meaning of direct 

physical damage, that the general requirement of a distinct, 

demonstrable, physical change or alteration to property applies 

here. As the Supreme Court of Vermont explained, “We 

conclude that direct physical damage requires a distinct, 

demonstrable, physical change to property. When we combine 

the definitions of ‘direct,’ ‘physical,’ and ‘damage’ provided 

above, the plain meaning is evident. The three components —

immediate or proximate causation, [citation], material force or 

effect, [citation], and injury to property, [citation] — when 

logically construed together require that there be a physical 

alteration to the property itself for damage to occur under the 

policy. [Citation.] The addition of ‘distinct’ and ‘demonstrable’ 

to this definition is important because it ‘necessarily implicates 

the insured’s burden of showing that a covered loss has 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

35

occurred,’ i.e. an articulable change to the property.” 

(Huntington Ingalls, supra, 287 A.3d at p. 527.)

Such a change or alteration need not be visible to the 

naked eye to constitute direct physical damage to property; 

“alterations at the microscopic level may meet this threshold.” 

(Huntington Ingalls, supra, 287 A.3d at pp. 527–528; see Starr 

Surplus, supra, 535 P.3d at p. 263 [“Both physical loss and 

physical damage can arise from invisible or microscopic 

forces”].) Instead, it is the effect of the change or alteration of

the property that is determinative. If the change or alteration 

causes harm or injury to the property itself, such a change or 

alteration may constitute direct physical damage to property. 

Conversely, if a change or alteration does not cause any damage 

or harm to the property, it does not constitute direct physical 

damage to property. Many physical forces, such as heat and 

cold, cause physical changes or alterations to property, but these 

changes or alterations do not necessarily cause physical 

damage.

2. Direct Physical Loss to Property

Although the precise meaning of direct physical loss to 

property is more contested, its general scope is readily 

ascertainable. Loss can simply be a more extreme form of 

damage, but its meaning is also broader. Referencing a common 

dictionary definition, the Inns-by-the-Sea court explained, 

“ ‘Loss’ is often used to refer to ‘destruction’ and ‘ruin’ [citation], 

but its definition also includes ‘the partial or complete 

deterioration or absence of a physical capability or function,’ ‘an 

instance of losing someone or something,’ and ‘the harm or 

privation resulting from losing or being separated from someone 

or something.’ ” (Inns-by-the-Sea, supra, 71 Cal.App.5th at 
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p. 705, fn. 18.) Again, the authority cited by Another Planet is 

generally in accord. (Huntington Ingalls, supra, 287 A.3d at 

p. 525.)

The pairing of the word “physical” with “loss” 

demonstrates “ ‘there must be some physicality to the loss . . . of 

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

or physical destruction.’ ” (Inns-by-the-Sea, supra, 

71 Cal.App.5th at p. 707.) It also encompasses complete 

physical deprivation or dispossession, such as when property is 

stolen. (See Apple Annie, supra, 82 Cal.App.5th at p. 929, 

fn. 10.)

This physicality requirement is reinforced by the 

insurance policy’s reference in its business income and extra 

expense provisions to a “period of restoration” following direct 

physical loss or damage, which includes “the time required to

[¶] . . . [¶] repair or replace the property.” This language 

“implies that the ‘loss’ or ‘damage’ that gives rise to Business 

Income coverage has a physical nature that can be physically

fixed.” (Inns-by-the-Sea, supra, 71 Cal.App.5th at p. 707.) “The 

definition of ‘period of restoration’ provides an indication that 

the phrase ‘direct physical loss of’ property was not intended to 

include the mere loss of use of physical property to generate 

income, without any other physical impact to property that 

could be repaired, rebuilt or replaced.” (Id. at p. 708.) “The 

definition of ‘period of restoration,’ by recognizing there will be 

a period of physical repair to the property, is, at a minimum, 

consistent with requirement of a physical alteration to trigger a 

covered loss.” (Starlight Cinemas, supra, 91 Cal.App.5th at 

p. 40.)
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

37

In describing this physicality requirement, the Couch 

treatise does not note any difference between direct physical 

damage and direct physical loss. It applies the same “distinct, 

demonstrable, physical alteration” requirement to each: “The 

requirement that the loss be ‘physical,’ given the ordinary 

definition of that term, is widely held to exclude alleged losses 

that are intangible or incorporeal and, thereby, to preclude any 

claim against the property insurer when the insured merely

suffers a detrimental economic impact unaccompanied by a 

distinct, demonstrable, physical alteration of the property.” 

(10A Couch on Insurance, supra, § 148:46, fns. omitted.) 

Another treatise echoes this description: “The requirement that 

the loss or damage be ‘physical’ therefore has been found to 

preclude coverage for losses that are solely intangible or 

incorporeal; for example, an economic loss unaccompanied by a 

distinct physical alteration to property.” (5 New Appleman on 

Insurance Law Library Edition, supra, § 46.03[2].) 

Prior to the COVID-19 pandemic, several California courts 

likewise adopted this description of direct physical loss to 

property. (See, e.g., Doyle, supra, 21 Cal.App.5th at p. 38; MRI 

Healthcare, supra, 187 Cal.App.4th at p. 779; Simon Marketing, 

supra, 149 Cal.App.4th at pp. 622–623.) It has also been widely 

adopted in cases rejecting coverage for pandemic-related losses. 

(See, e.g., Endeavor, supra, 96 Cal.App.5th at p. 440, review 

granted; Starlight Cinemas, supra, 91 Cal.App.5th at p. 38;

Inns-by-the-Sea, supra, 71 Cal.App.5th at p. 706.) Even cases 

finding the possibility of coverage have assumed this description 

applies. (See, e.g., San Jose Sharks, supra, 98 Cal.App.5th at 

p. 168; Shusha, supra, 87 Cal.App.5th at p. 264, review granted; 

Marina Pacific, supra, 81 Cal.App.5th at p. 108.)
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The longstanding California view that direct physical loss 

to property requires a distinct, demonstrable, physical 

alteration of property is correct. But this requirement is not as 

restrictive as the Couch treatise has interpreted it. The Couch 

treatise places its description in opposition to cases “allowing 

coverage based on physical damage despite the lack of physical 

alteration of the property” including one where “the 

uninhabitability of the property was due to the fact that gasoline 

vapors from adjacent property had infiltrated and saturated the 

insured building.” (10A Couch on Insurance, supra, § 148:46, 

citing Western Fire Ins. Co. v. First Presbyterian Church (Colo. 

1968) 437 P.2d 52.) But, as the Inns-by-the-Sea court observed, 

it is not self-evident that the physical alteration requirement

necessarily excludes such a loss: “[I]t is possible that in the 

context of real property, the ‘distinct, demonstrable, physical 

alteration’ referenced in the Couch treatise [citation] could 

include damage that is not structural, but instead is caused by 

a noxious substance or odor.” (Inns-by-the-Sea, supra, 

71 Cal.App.5th at p. 706, fn. 19.) 

Inns-by-the-Sea cited case law from other jurisdictions 

where “the presence of noxious substances and odors” was found 

sufficient to constitute direct physical loss or damage to 

property. (Inns-by-the-Sea, supra, 71 Cal.App.5th at p. 701.) It 

explained, “[C]ase law supports the view that in certain 

circumstances an invisible substance or biological agent might 

give rise to coverage because it causes a policyholder to suspend 

operations due to direct physical loss of or damage to property.” 

(Id. at p. 710, fn. 21.) 

We agree that an invisible substance or biological agent 

may, in some cases, be sufficiently harmful and persistent to 

cause a distinct, demonstrable, physical alteration to property. 
ANOTHER PLANET ENTERTAINMENT, LLC v. VIGILANT INS. CO.

Opinion of the Court by Guerrero, C. J.

39

As one court explained, a physical contaminant may cause direct 

physical loss or damage where it is “so connected to the property 

that the property effectively becomes the source of its own loss 

or damage.” (Starr Surplus, supra, 535 P.3d at p. 265; 

see United Talent, supra, 77 Cal.App.5th at p. 833 [risk of harm 

“inextricably linked to the insured property”].) Notably, such a 

connection will not be found where the substance or biological 

agent can be easily cleaned or removed from the property. (Innsby-the-Sea, supra, 71 Cal.App.5th at p. 703, fn. 17.) “While 

saturation, ingraining, or infiltration of a substance into the 

materials of a building or persistent pollution of a premises 

requiring active remediation efforts is sufficient to constitute 

‘direct physical loss of or damage to property,’ evanescent 

presence is not.” (Verveine Corp. v. Strathmore Ins. Co. (Mass. 

2022) 184 N.E.3d 1266, 1276 (Verveine).) 

Given this physicality requirement, Another Planet is 

incorrect that direct physical loss to property may be found 

anytime a property may not be used as intended. A property 

insurance policy does not cover a particular intended use; it 

covers the property itself. (See Simon Marketing, supra, 

149 Cal.App.4th at pp. 622–623.) “In simple terms, under this 

rule, ‘ “Plaintiff[s’] operations are not what is insured — the 

building and the personal property in or on the building are.” ’ ” 

(Inns-by-the-Sea, supra, 71 Cal.App.5th at p. 706.) The property 

itself must suffer a direct physical loss, i.e., it must be so 

negatively affected that it is rendered effectively unusable or 

uninhabitable.

Another Planet relies on Hughes, supra, 199 Cal.App.2d 

239, but Hughes does not support Another Planet’s broad 

interpretation of direct physical loss. The primary issue in 

Hughes was whether the terms “ ‘dwelling’ ” or “ ‘dwelling 
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Opinion of the Court by Guerrero, C. J.

40

building’ ” included the soil underneath the insured’s home. (Id. 

at p. 248.) The Hughes court concluded the soil was included, 

because “to exclude the underlying land would be to render the 

policy illusory.” (Ibid.) Among other things, the court reasoned 

that coverage must exist where the home was “rendered 

completely useless to its owners,” even if no “tangible injury to 

the physical structure itself could be detected.” (Ibid.) The 

home “suffered real and severe damage when the soil beneath it 

slid away and left it overhanging a 30-foot cliff. Until such 

damage was repaired and the land beneath the building 

stabilized, the structure could scarcely be considered a ‘dwelling 

building’ in the sense that rational persons would be content to 

reside there.” (Id. at p. 249.) While we need not address the 

specific question before the Hughes court, it does not support 

Another Planet’s view that direct physical loss encompasses any 

loss of intended use. The loss in Hughes was plainly more severe 

than simply a change in use; the insureds were effectively 

deprived or dispossessed of their property. (See Endeavor, 

supra, 96 Cal.App.5th at p. 435, review granted [“Hughes did 

not purport . . . to erect a ubiquitous ‘loss of use equals property 

loss or damage’ rule”].)

Finally, the requirement of a direct physical loss to 

property generally excludes impairments that are purely legal 

in nature. (See Garvey, supra, 48 Cal.3d at p. 406 [referring to 

“ ‘fortuitous, active, physical forces such as lightning, wind, and 

explosion, which bring about the loss’ ”].) It does not cover

situations where there is “a loss of use of property but there is 

no direct physical loss because a government order as opposed 

to a physical condition related to the property caused the 

deprivation.” (Huntington Ingalls, supra, 287 A.3d at p. 531.) 

This position enjoys near-universal support among the Courts 
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of Appeal: “[M]ost California appellate courts have held the 

allegation of temporary loss of use of property resulting from 

pandemic-related government closure orders — without any 

physical loss of the property — is not sufficient to support a 

claim against an insurer for business income coverage under a 

policy that requires the suspension be caused by ‘direct physical 

loss of or damage to’ insured property.” (Starlight Cinemas, 

supra, 91 Cal.App.5th at p. 38; accord, Endeavor, supra, 

96 Cal.App.5th at p. 434, review granted [collecting cases].) 

Coast Restaurant departed from this consensus. It held, 

“[W]hile physical alteration to covered property could trigger 

coverage under a ‘physical loss or damage’ insuring provision, 

that is not the only possible trigger for coverage.” (Coast 

Restaurant, supra, 90 Cal.App.5th at p. 343.) Specifically, the 

Coast Restaurant court believed pandemic-related public health 

orders could cause direct physical loss to property because they 

“affected how the physical space of the property and the physical 

objects (chairs, tables, etc.) in that space could or could not be 

used” and “deprived the [insured] of important property rights 

in the covered property.” (Id. at p. 340.) 

Neither scenario identified by Coast Restaurant falls 

within the definition of direct physical loss to property. Both 

reflect changes in the insured’s use of or rights to the property, 

not changes to the physical condition of the property itself. 

(See Endeavor, supra, 96 Cal.App.5th at pp. 434–435, review 

granted; Starlight Cinemas, supra, 91 Cal.App.5th at p. 38 [“We 

disagree with our colleagues in Coast . . . that a temporary 

deprivation of an insured’s right to use covered property 

constitutes a covered loss under policy language covering a 

‘direct physical loss of or damage to property’ ”].) Although an 

insured may choose to make physical changes to the condition 
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Opinion of the Court by Guerrero, C. J.

42

of the property in response to a government order, the 

government order itself has only intangible or incorporeal 

effects — uses and rights — not physical ones. “[D]eprivation of 

property must be causally linked to a physical event. The plain 

meaning of ‘direct physical loss’ requires an ‘explicit nexus 

between the purported loss and the physical condition of the 

insured property.’ ” (Huntington Ingalls, supra, 287 A.3d at 

p. 531.) Where the deprivation of property is caused by a 

government order, rather than a physical event, no direct 

physical loss to property has occurred.4

3. “Property Damage” in Commercial General 

Liability Policies

Another Planet urges a more expansive interpretation of 

direct physical loss or damage to property, based in part on the 

definition of “property damage” contained in its commercial 

general liability (CGL) insurance policy. Another Planet 

obtained its CGL policy from Vigilant as well, and it appears as 

a separate section in a single insurance policy packet. Under 

the CGL policy, Vigilant agreed to pay “damages that the 

insured becomes legally obligated to pay by reason of liability: 

[¶] imposed by law; or [¶] assumed in an insured contract; [¶] 

for bodily injury or property damage caused by an occurrence to 

which this coverage applies.” (Boldface omitted.) The CGL 

4 We disapprove Coast Restaurant Group, Inc. v. Amguard 

Ins. Co., supra, 90 Cal.App.5th 332, to the extent it holds that 

pandemic-related government health orders regulating the use 

of property may cause direct physical loss to property. We need

not express any view regarding the separate question of whether 

or under what circumstances a governmental seizure of real or 

personal property would constitute a direct physical loss to 

property. (Cf. American Alternative Ins. Corp. v. Superior Court 

(2006) 135 Cal.App.4th 1239, 1246.)
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Opinion of the Court by Guerrero, C. J.

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policy defined property damage as (1) “physical injury to 

tangible property, including resulting loss of use of that 

property” and (2) “loss of use of tangible property that is not 

physically injured.” 

Another Planet is correct that this definition in its CGL 

policy may be relevant to the interpretation of direct physical 

loss or damage in its property insurance policy, whether the two 

policies are considered a single contract (see Civ. Code, § 1641 

[“The whole of a contract is to be taken together, so as to give 

effect to every part, if reasonably practicable, each clause 

helping to interpret the other”]) or not (see id., § 1642 [“Several 

contracts relating to the same matters, between the same 

parties, and made as parts of substantially one transaction, are 

to be taken together”]). But, for two primary reasons, we 

conclude that this CGL definition does not expand the definition 

of direct physical loss or damage to property described above.

First, the nature of third party CGL insurance is 

materially different from first party property insurance. “[A] 

first party insurance policy provides coverage for loss or damage 

sustained directly by the insured (e.g., life, disability, health, 

fire, theft and casualty insurance). A third party liability policy, 

in contrast, provides coverage for liability of the insured to a 

‘third party’ (e.g., a CGL policy, a directors and officers liability 

policy, or an errors and omissions policy). In the usual first 

party policy, the insurer promises to pay money to the insured 

upon the happening of an event, the risk of which has been 

insured against. In the typical third party liability policy, the 

carrier assumes a contractual duty to pay judgments the 

insured becomes legally obligated to pay as damages because of 

bodily injury or property damage caused by the insured.” 

(Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 
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645, 663 (Montrose).) Third party coverage therefore turns on 

the insured’s legal liability, rather than the fact of injury to 

property itself.

Second, and relatedly, the scope of coverage in a standard 

third party CGL policy is materially different from the scope of 

standard first party property coverage at issue here. Although 

the two types of coverage are often combined in a single 

insurance package, “[t]he scope of coverage and the operation of 

the exclusion clauses . . . are different in the separate policy 

portions and should be treated as such.” (Garvey, supra,

48 Cal.3d at p. 406.) “ ‘Liability and corresponding coverage 

under a third party insurance policy must be carefully 

distinguished from the coverage analysis applied in a first party 

property contract. Property insurance, unlike liability 

insurance, is unconcerned with establishing negligence or 

otherwise assessing tort liability.’ ” (Ibid.)

Moreover, a reasonable person would readily understand 

that property damage in Another Planet’s CGL policy is more 

expansive in scope than direct physical loss or damage to 

property in its property insurance policy. The first prong of the 

CGL property damage definition covers “physical injury to 

tangible property,” which is analogous to the ordinary 

understanding of direct physical damage to property. The 

second prong of the CGL property damage definition covers “loss 

of use of tangible property that is not physically injured,” but it 

does not contain the limiting adjectives “direct” or “physical” in 

direct physical loss to property. Because the definition of 

property damage in Another Planet’s CGL policy is materially 

different, on its face, from the terms used in its property 
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insurance policy, the former carries little weight in interpreting 

the latter.5

F. Ambiguity and Extrinsic Evidence

Another Planet also urges an expansive definition of direct 

physical loss or damage based on what it characterizes as 

extrinsic evidence of a latent ambiguity in the meaning of the 

policy language, as applied to its specific allegations of 

insurance coverage for COVID-19-related losses. We conclude 

that the evidence proffered by Another Planet is not inconsistent 

with the plain meaning of direct physical loss or damage 

described above, and it does not reveal any ambiguity in the 

policy language.

“As California courts previously have observed, the 

‘meaning of language is to be found in its applications. An 

5 For similar reasons, the specific virus exclusion in Another 

Planet’s CGL policy sheds little light on the meaning of direct 

physical damage or loss to property in Another Planet’s property 

insurance policy. The exclusion states, in part, “[T]his 

insurance does not apply to any damages, loss, cost or expense 

arising out of the actual, alleged or threatened contaminative, 

pathogenic, toxic or other hazardous properties of biological 

agents.” (Boldface omitted.) The phrase “biological agents” 

includes “viruses or other pathogens.” Because the grant of 

coverage in Another Planet’s CGL policy is different from the 

grant of coverage in its property insurance policy, the fact that 

certain losses are excluded from the former does not mean they 

are covered by the latter. Moreover, to the extent Another 

Planet’s point is that the virus exclusion shows that “ ‘all risks’ 

insurance include[s] coverage for losses caused by a virus” like 

COVID-19, that point is not inconsistent with our interpretation

of direct physical loss or damage to property. As discussed 

further in the next section, nothing in that interpretation 

categorically excludes a virus as a potential cause of direct 

physical loss or damage to property.
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indeterminacy in the application of language signals its 

vagueness or ambiguity. An ambiguity arises when language is 

reasonably susceptible of more than one application to material 

facts. There cannot be an ambiguity per se, i.e., an ambiguity 

unrelated to an application.’ [Citations.] [¶] Accordingly, 

‘[e]ven if a contract appears unambiguous on its face, a latent 

ambiguity may be exposed by extrinsic evidence which reveals 

more than one possible meaning to which the language of the 

contract is yet reasonably susceptible.’ [Citation.] ‘The test of 

admissibility of extrinsic evidence to explain the meaning of a 

written instrument is not whether it appears to the court to be 

plain and unambiguous on its face, but whether the offered 

evidence is relevant to prove a meaning to which the language 

of the instrument is reasonably susceptible.’ ” (Dore v. Arnold 

Worldwide, Inc. (2006) 39 Cal.4th 384, 391.) A court may 

provisionally receive such evidence until it is “in a position to 

determine whether in the light of all of the offered evidence, the 

item objected to will turn out to be admissible as tending to 

prove a meaning of which the language of the instrument is 

reasonably susceptible or inadmissible as tending to prove a 

meaning of which the language is not reasonably susceptible.” 

(Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 

69 Cal.2d 33, 40, fn. 7 (Pacific Gas).) In this case, Another 

Planet has cited or requested judicial notice of certain extrinsic 

evidence it contends is relevant to the interpretation of its 

insurance policy.

First, Another Planet relies on a 2006 circular issued by 

the Insurance Services Office, Inc. (ISO) announcing a new 

standard exclusion for “loss or damage caused by or resulting 

from any virus, bacterium or other microorganism that induces 

or is capable of inducing physical distress, illness or disease.” 
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The ISO is “an organization that develops standard policy forms 

for the insurance industry and collects statistical data and 

estimates risks relevant to the forms.” (Bank of the West v. 

Superior Court (1992) 2 Cal.4th 1254, 1262.) It also “publishes 

circulars designed to explain the intent, purpose and effect of its 

standard form provisions.” (Maryland Casualty Co. v. Reeder 

(1990) 221 Cal.App.3d 961, 971.)

This ISO circular stated, “Disease-causing agents may 

render a product impure (change its quality or substance), or 

enable the spread of disease by their presence on interior 

building surfaces or the surfaces of personal property. When 

disease-causing viral or bacterial contamination occurs, 

potential claims involve the cost of replacement of property (for 

example, the milk), cost of decontamination (for example, 

interior building surfaces), and business interruption (time 

element) losses.” The circular offered examples such as “the 

growth of listeria bacteria in milk” and “viral and bacterial 

contaminants [including] rotavirus, SARS, influenza (such as 

avian flu), legionella and anthrax.” 

Under the heading, “Current Concerns,” the circular 

provided the following explanation for the new virus exclusion: 

“Although building and personal property could arguably 

become contaminated (often temporarily) by such viruses and 

bacteria, the nature of the property itself would have a bearing 

on whether there is actual property damage. An allegation of 

property damage may be a point of disagreement in a particular 

case. In addition, pollution exclusions are at times narrowly 

applied by certain courts. In recent years, ISO has filed 

exclusions to address specific exposures relating to 

contaminating or harmful substances. Examples are the mold 

exclusion in property and liability policies and the liability 
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exclusion addressing silica dust. Such exclusions enable 

elaboration of the specific exposure and thereby can reduce the 

likelihood of claim disputes and litigation.” 

The circular continued, “While property policies have not 

been a source of recovery for losses involving contamination by 

disease-causing agents, the specter of pandemic or hitherto 

unorthodox transmission of infectious material raises the 

concern that insurers employing such policies may face claims 

in which there are efforts to expand coverage and to create 

sources of recovery for such losses, contrary to policy intent. [¶] 

In light of these concerns, we are presenting an exclusion 

relating to contamination by disease-causing viruses or bacteria 

or other disease-causing microorganisms.” 

We have recognized that standardized insurance industry 

provisions and their accompanying interpretative materials 

may be useful in analyzing coverage issues. (Montrose, supra,

10 Cal.4th at p. 670.) This general rule extends to standard 

form exclusions. But, as with any extrinsic evidence, such 

exclusions are only relevant to the extent they tend to prove a 

meaning of which the language of the policy is reasonably 

susceptible. (Pacific Gas, supra, 69 Cal.2d at p. 40, fn. 7.) If a 

grant of coverage cannot reasonably be read to include a matter, 

even considering the absence of the proffered exclusion, the 

language of the exclusion cannot create coverage where none 

exists. (Yahoo, supra, 14 Cal.5th at p. 72.)

Another Planet maintains the existence of the standard 

exclusion covering viruses “is evidence that insurers like 

Vigilant knew that viruses can, and do, cause ‘direct physical 

loss or damage to property.’ ” But Vigilant does not contend that 

viruses can never cause direct physical loss or damage to 
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Opinion of the Court by Guerrero, C. J.

49

property. It explicitly accepts the view of the Massachusetts 

Supreme Judicial Court that “the exclusion would have 

independent significance where, for example, personal property, 

such as food, becomes physically contaminated or infected with 

a virus, requiring its destruction or some form of remediation.” 

(Verveine, supra, 184 N.E.3d at p. 1278.) Crucially, as the ISO 

circular explains, “the nature of the property itself would have 

a bearing on whether there is actual property damage,” and it is 

self-evident that the nature of the virus (or other contaminant) 

is relevant to the existence of direct physical loss or damage as 

well. The dispute here revolves around the ability of the 

COVID-19 virus to cause direct physical loss or damage to 

Another Planet’s property, not the ability of any virus to cause 

such loss or damage to any property. The virus exclusion does 

not provide any relevant guidance on the specific issue of the 

COVID-19 virus’s effect on Another Planet’s property.

Another Planet also relies on statements from an 

insurance industry group and Vigilant’s parent company, Chubb 

Limited, that acknowledge substantial exposure to losses from 

natural disasters, including pandemics. For example, in its 

2019 annual report, Chubb stated, “We have substantial 

exposure to losses resulting from natural disasters, man-made 

catastrophes such as terrorism or cyberattack, and other 

catastrophic events, including pandemics. This could impact a 

variety of our businesses, including our commercial and 

personal lines, and life and accident and health (A&H) 

products.” These generalized statements about the effect of a 

pandemic on the finances of a diversified insurance company, or 

the insurance industry as a whole, do not shed light on the 

meaning of direct physical loss or damage to property in Another 

Planet’s property insurance policy. The statements are 
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Opinion of the Court by Guerrero, C. J.

50

untethered from the policy language, and even from property 

insurance itself. The modern insurance industry includes many 

different insurance products, from life insurance and health 

insurance to liability insurance. Even property insurance 

includes many specialized policies and coverage extensions. For 

example, although we need not consider it here, one available 

extension covers “ ‘direct physical loss or damage to Property 

Insured caused by or resulting from a covered communicable 

disease event.’ ” (Amy’s Kitchen, supra, 83 Cal.App.5th at 

p. 1068, boldface omitted; see fn. 3, ante.) A “ ‘communicable 

disease event’ ” is defined as “ ‘an event in which a public health 

authority has ordered that a location be evacuated, 

decontaminated, or disinfected due to the outbreak of a 

communicable disease at such location.’ ” (Amy’s Kitchen, at 

p. 1071.) This coverage extension is not part of Another Planet’s 

insurance policy, and it illustrates the incongruity of relying on 

general industry statements to inform the scope of coverage 

here.

Another Planet’s reliance on statements by Chubb 

executives after the onset of the COVID-19 pandemic is 

similarly unpersuasive. In its 2020 annual report, Chubb 

discussed how the COVID-19 pandemic had affected its 

business: “Our and the industry’s COVID-related claims come 

from a broad range of exposures, principally in four areas. The 

first occurred as people suffered from ill health or death, from 

front-line workers to ordinary employees, affecting everything 

from life and health insurance to workers compensation. The 

second source of exposures come from liability-related 

insurance, including employment practices, directors and 

officers (D&O) and medical malpractice. Next are business 

interruption losses, from businesses that had coverage and were 
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Opinion of the Court by Guerrero, C. J.

51

shut down during the pandemic. And finally, there are creditrelated exposures, such as surety and trade credit.” This 

passage illustrates the variety of Chubb’s insurance products, 

beyond property insurance. Another Planet points out that 

Chubb acknowledges “business interruption losses, from 

businesses that had coverage and were shut down during the 

pandemic,” but this statement expressly refers to businesses 

“that had coverage.” It does not mandate coverage where none 

exists. Indeed, the same document reflects explicit hostility 

toward claims like those asserted by Another Planet here. In 

Chubb’s view, the COVID-19 pandemic led to “a spree of 

litigation that attempts to twist the intent of contracts and 

reinterpret insurance contract language to force pay-outs in 

situations that in most cases insurers never intended to cover, 

and in which no premium was charged for the risk, specifically 

when city and state governments mandated pandemic-related 

business closures. This litigation relied on implausible 

arguments that COVID causes direct physical loss or damage to 

a business’s property, in the same way as a fire.” These 

statements do not support an understanding of direct physical 

damage or direct physical loss that differs from the plain 

meaning of those phrases. Another Planet has not established 

any ambiguity in the policy language.6

6 Because the policy language is not ambiguous, its plain 

meaning governs. (AIU Insurance, supra, 51 Cal.3d at p. 822.) 

We therefore have no occasion to apply the familiar rule that 

ambiguous language in an insurance policy should be 

interpreted to protect the insured’s objectively reasonable 

expectations. (See Yahoo, supra, 14 Cal.5th at pp. 71–72.) 

Another Planet has not identified any meaning, other than plain 

meaning, to which the policy language is reasonably susceptible.
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52

G. The Actual or Potential Presence of the

COVID-19 Virus

The Ninth Circuit asked, “Can the actual or potential 

presence of the COVID-19 virus on an insured’s premises 

constitute ‘direct physical loss or damage to property’ for 

purposes of coverage under a commercial property insurance 

policy?” (Another Planet, supra, 56 F.4th at p. 734.) As noted, 

while we cannot and do not decide whether the COVID-19 virus 

can ever constitute direct physical loss or damage to property, 

we conclude Another Planet’s allegations are insufficient to 

meet the definition of direct physical loss or damage to property 

under California law. Moreover, Another Planet’s allegations 

regarding the COVID-19 virus and its effects appear typical of 

the allegations offered by many insureds in similar situations. 

To the extent the Ninth Circuit’s question is premised on the 

split in authority represented on one side by United Talent, 

which held that the actual or potential presence of the virus 

generally could not cause direct physical loss or damage to 

property, and on the other by Marina Pacific, which held that it 

could, we further conclude that United Talent was correct.7

Another Planet primarily contends that the COVID-19 

virus causes direct physical damage to property by physically 

altering surfaces where it lands and attaches. Similarly, the

Marina Pacific court found persuasive, in part, an allegation 

7 Although this proceeding concerns litigation in the federal 

courts, we need not consider any differences between federal 

and California pleading standards because we conclude Another 

Planet’s allegations are insufficient even under the more 

permissive California standard. (Cf. Marina Pacific, supra, 

81 Cal.App.5th at pp. 109–110; Endeavor, supra, 

96 Cal.App.5th at p. 442 & fn. 18, review granted.)
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that the COVID-19 virus “not only lives on surfaces but also 

bonds to surfaces through physicochemical reactions involving 

cells and surface proteins, which transform the physical 

condition of the property.” (Marina Pacific, supra, 

81 Cal.App.5th at p. 108.) These allegations do not explain how 

the property was damaged or harmed by the presence of the 

COVID-19 virus. In other words, they do not allege any injury 

or impairment to property caused by the COVID-19 virus. The 

mere fact of microscopic bonds between the virus and a surface 

says little about the effect of such microscopic bonds on that 

surface. (See Endeavor, supra, 96 Cal.App.5th at p. 442, review 

granted [“the type of viral interaction with surfaces alleged by 

[the insured] (and accepted as true) does not, as a matter of law, 

satisfy the default definition of ‘direct physical harm or loss to 

property’ ”], fn. omitted.) To constitute direct physical damage 

to property under California law, a tangible alteration of the 

property is necessary but not sufficient. An insured must allege, 

and later prove, that the alteration caused physical harm to the 

property. The alteration itself is not enough.

Marina Pacific also found persuasive, in part, an 

allegation that the COVID-19 virus “alters ordinary physical 

surfaces transforming them into fomites through 

physicochemical processes, making them dangerous and 

unusable for their intended purposes unless decontaminated.” 

(Marina Pacific, supra, 81 Cal.App.5th at p. 110.) Another 

Planet similarly contends that the COVID-19 virus causes a 

“physical alteration from an object to a fomite [which] makes 

physical contact with those previously safe, inert surfaces (e.g., 

handrails, doorknobs, bathroom fixtures) unsafe” because a 

person could contract COVID-19 through contact with the 

object. Accepting these statements as true, they likewise do not 
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54

sufficiently allege direct physical damage to property. As noted,

a fomite is “ ‘an object . . . that may be contaminated with 

infectious agents (such as bacteria or viruses) and serve in their 

transmission.’ ” (United Talent, supra, 77 Cal.App.5th at p. 826, 

fn. 5.) Describing an object as a fomite primarily reflects a 

conceptual or analytical change, not a physical one. And, to the 

extent the change is physical, it fails to satisfy the definition of 

direct physical damage to property for the same reason that 

other allegations of microscopic bonding or adhesion is 

insufficient. It does not involve damage or harm to property. 

“Fomite-based transmission . . . typifies another way the virus 

‘pos[es] health risk to humans,’ as opposed to property. 

[Citation.] Though this evidence shows that the COVID-19 

virus is ‘harmful,’ it simply does not equate to evidence that any 

property suffered physical harm.” (Starr Surplus, supra, 

535 P.3d at pp. 264–265.)

To support its allegation of direct physical loss to property, 

Another Planet alleges that the actual or potential presence of 

the COVID-19 virus rendered its property unusable for its 

intended purpose. As noted, such a bare allegation is 

insufficient. A property insurance policy does not cover a 

particular intended use; it covers the property itself. 

(See Simon Marketing, supra, 149 Cal.App.4th at pp. 622–623.) 

Moreover, to the extent Another Planet claims it was the 

physical presence of the virus that caused its property to become 

unusable, it has failed to allege that the virus caused a distinct, 

demonstrable, physical alteration to property. Where a 

substance is alleged to cause harm to humans, rather than 

property, it must still alter the property itself in a lasting and 

persistent manner. Although Another Planet contests just how 

easily the COVID-19 virus may be cleaned from various 
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55

surfaces, it does not make any allegations regarding the 

remediation necessary to remove the virus. Instead, it focuses 

on the difficulty of preventing reintroduction of the virus when 

humans reenter and circulate through a property. But 

persistence in this context requires the property itself to become 

the source of harm. (Starr Surplus, supra, 535 P.3d at p. 265 

[“[E]ven when the force does not originate within the property, 

it [is] so connected to the property that the property effectively 

becomes the source of its own loss or damage”]; see United 

Talent, supra, 77 Cal.App.5th at p. 833 [risk of harm 

“inextricably linked to the insured property”].) The risk of harm 

from reintroduction of the virus is essentially the opposite. The 

continuing nature of the risk stems not from the property but 

from the presence of other humans. The risk is “untethered to 

any property” and “may be reduced or rendered less harmful 

through practices unrelated to the property, such as social 

distancing, vaccination, and the use of masks.” (United Talent, 

at p. 838; see id. at p. 839 [plaintiff “has not alleged that its 

properties required unique abatement efforts to eradicate the 

virus”].) As one court explained, “This is why the presence of 

SARS-CoV-2 is unlike the presence of other substances — such 

as unpleasant odors, dangerous chemical contamination, or 

asbestos — that permeate the property and require substantial 

effort to remove.” (Endeavor, supra, 96 Cal.App.5th at p. 441, 

review granted.)8

8 Another Planet also alleges that the COVID-19 virus 

damages air by changing its composition and rendering it 

harmful to humans. But it acknowledges in its briefing that an 

insured does not own air, in the sense of the physical particles 

that happen to fill an interior space or settle above an exterior 
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Opinion of the Court by Guerrero, C. J.

56

Some courts have found persuasive the fact that 

businesses were required to alter their physical space in order 

to minimize virus transmission and safely operate. (See, e.g., 

Shusha, supra, 87 Cal.App.5th at p. 264, review granted

[“ ‘Cleaning of surfaces alone is insufficient,’ and safe operations 

would require ‘substantial physical alterations, systems 

changes to facilities, and new protocols for air circulation, 

disinfection, and disease prevention’ ”].) But such alterations 

are neither caused directly by the presence of the virus itself nor 

do they remedy its physical effects on property. Instead, they 

are preventative; “they aim to redress the way people pose harm 

to one another by carrying and transmitting the virus at the 

property.” (Starr Surplus, supra, 535 P.3d at p. 265; 

see Connecticut Dermatology Group, PC v. Twin City Fire 

Ins. Co. (Conn. 2023) 288 A.3d 187, 201 [“plaintiffs’ activities 

designed to prevent the transmission of the coronavirus on the 

properties were not ‘repairs’ in any ordinary sense of the word”].) 

While Another Planet contends such preventative measures are 

covered by its insurance policy as efforts at mitigation, such 

mitigation efforts are not reimbursable without an underlying 

covered loss or damage to property. As discussed, Another 

Planet has not alleged any such loss or damage.9

property. In any event, Another Planet’s allegations are 

insufficient to show direct physical loss or damage to air for the 

reasons we have discussed. (See Tapestry, Inc. v. Factory 

Mutual Ins. Co. (Md. 2022) 286 A.3d 1044, 1059–1060.)

9 We disapprove San Jose Sharks, LLC v. Superior Court, 

supra, 98 Cal.App.5th 158; JRK Property Holdings, Inc. v. 

Colony Ins. Co., supra, 96 Cal.App.5th 1, review granted; 

Shusha, Inc. v. Century-National Ins. Co., supra, 
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57

Finally, we observe that our consideration of this matter 

has been framed by the Ninth Circuit’s certified question. Other 

issues, in this case or in others, may be dispositive. For 

example, the federal district court in this matter appears to have 

based its dismissal order, at least in part, on the absence of 

causation in light of governmental orders requiring the closure

of Another Planet’s venues. It wrote, “Another Planet does not 

have a claim for loss of business income because the closure 

orders [by state and local public health authorities] — and not 

[the] virus’s alleged presence at Another Planet’s facilities —

caused it to shut down.” The Inns-by-the-Sea court emphasized 

a similar lack of causation: “Moreover, [plaintiff] alleges that it 

ceased operations ‘as a direct and proximate result of the 

Closure Orders.’ It does not make the proximate cause 

allegation based on the particular presence of the virus on its 

premises.” (Inns-by-the-Sea, supra, 71 Cal.App.5th at p. 703.) 

In Best Rest, the same court extended its causation analysis 

beyond closure orders. The plaintiff in that case, a hotel, was 

able to operate during the pandemic. (Best Rest, supra, 

88 Cal.App.5th at p. 700.) But it “ ‘experienced a wave of 

reservation cancellations,’ ” and its occupancy during the 

pandemic was far below normal. (Ibid.) Although the plaintiff’s 

business losses were related to the pandemic overall, the Best 

Rest court affirmed an adverse summary judgment order on the 

grounds that plaintiff’s losses were not caused by the presence 

of the COVID-19 virus at its property. (Id. at p. 706.) Instead, 

the losses were caused by an overall reduction in the number of 

87 Cal.App.5th 250, review granted; and Marina Pacific Hotel 

& Suites, LLC v. Fireman’s Fund Ins. Co., supra, 

81 Cal.App.5th 96, to the extent they are inconsistent with this 

opinion.
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Opinion of the Court by Guerrero, C. J.

58

people travelling. The court concluded, “[E]ven if Best Rest had 

eradicated all traces of COVID-19 from its premises, it still 

would have suffered the same lost income.” (Id. at p. 708.) 

While we need not consider these issues here, we emphasize 

that the focus of our opinion should not be interpreted to 

downplay other circumstances that might be dispositive in this 

case or others.

III. CONCLUSION

For the reasons stated, we answer the Ninth Circuit’s 

question as follows: No, the actual or potential presence of the 

COVID-19 virus on an insured’s premises generally does not 

constitute “direct physical loss or damage to property” for 

purposes of coverage under a commercial property insurance 

policy.

GUERRERO, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Another Planet Entertainment, LLC v. Vigilant 

Insurance Company

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding XX on request by 9th Circuit (Cal. Rules of 

Court, rule 8.548)

Review Granted (published)

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S277893

Date Filed: May 23, 2024

__________________________________________________________ 

Court: 

County: 

Judge: 

__________________________________________________________ 

Counsel:

Pasich, Kirk Pasich, Nathan M. Davis, Arianna M. Young and Kayla 

M. Robinson for Plaintiff and Appellant.

Hunton Andrews Kurth, Scott P. DeVries, Yosef Y. Itkin, Lorelie S. 

Masters and Michael S. Levine for United Policyholders as Amicus 

Curiae on behalf of Plaintiff and Appellant.

Covington & Burling, Sabrina T. McGraw and Rani Gupta for Major 

League Baseball and National Hockey League as Amici Curiae on 

behalf of Plaintiff and Appellant.

Covington & Burling, Thomas Martecchini, David B. Goodwin, 

Christine S. Haskett and Billie T. H. Mandelbaum for Ross Stores, 

Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.
Reed Smith, John N. Ellison, Richard P. Lewis, Jr., Katherine J. 

Ellena and Kathryn M. Bayes for California Pizza Kitchen, Inc., 

French Laundry Partners, LP, KRM, Inc., and Yountville Food 

Emporium, LLC, as Amici Curiae on behalf of Plaintiff and Appellant.

Latham & Watkins, Brook B. Roberts, John M. Wilson and Corey D. 

McGehee for San Manuel Band of Mission Indians and San Manuel 

Entertainment Authority as Amici Curiae on behalf of Plaintiff and 

Appellant.

Roxborough, Pomerance, Nye & Adreani, Nicholas P. Roxborough, 

Vincent S. Gannuscio and Joseph C. Gjonola for the Santa Ynez Band 

of Chumash Mission Indians of the Santa Ynez Reservation of 

California as Amicus Curiae on behalf of Plaintiff and Appellant.

Clyde & Co US, Susan Koehler Sullivan, Douglas J. Collodel, Gretchen 

S. Carner, Brett C. Safford; O’Melveny & Myers, Jonathan D. Hacker 

and Jenya Godina for Defendant and Respondent.

Pacific Law Partners, Clarke B. Holland, David B.A. Demo and 

Andrew P. Collier for Oregon Mutual Insurance Company as Amicus 

Curiae on behalf of Defendant and Respondent.

Crowell & Moring and Mark D. Plevin for American Property Casualty 

Insurance Association and National Association of Mutual Insurance 

Companies as Amici Curiae on behalf of Defendant and Respondent.

Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and Elise D. Klein 

for California Fair Plan Association as Amicus Curiae on behalf of 

Defendant and Respondent.

Jamie Ostroff and Shari Covington for California Medical Association 

as Amicus Curiae.

Proskauer Rose, Kyle A. Casazza and Christina H. Kroll for The Los 

Angeles Lakers, Inc., as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Kirk Pasich

Pasich LLP

10880 Wilshire Boulevard, Suite 2000

Los Angeles, CA 90024

(424) 313-7860

Jonathan D. Hacker

O’Melveny & Myers LLP

1625 I Street NW

Washington, DC 20006

(202) 383-5285