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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

3 SQUARES LLC, D/B/A 3 SQUARES 

DINER, and YUSHO LLC, D/B/A JAM 

RESTAURANT,

 

 Plaintiffs

 vs.

THE CINCINNATI INSURANCE 

COMPANY,

 Defendant

Case Number:

JURY TRIAL DEMANDED 

 

 

CLASS ACTION COMPLAINT AND REQUEST FOR DECLARATORY RELIEF 

 Plaintiffs, 3 SQUARES LLC, D/B/A 3 SQUARES DINER and YUSHO LLC, 

D/B/A JAM RESTAURANT, by and through undersigned counsel, state as follows for 

their Complaint and Request for Declaratory Relief against the defendant THE 

CINCINNATI INSURANCE COMPANY.:

I. INTRODUCTION 

This is a class action brought by Plaintiffs, 3 Squares LLC, d/b/a 3 Squares 

Diner and Yusho LLC, d/b/a Jam Restaurant, against Defendant The Cincinnati 

Insurance Company, related to an insurance policy that insures Plaintiffs’ property, 

business operations, and potential liabilities in connection with Plaintiffs’ business 

operations, which includes coverage for Business Income (“BI”), Extra Expense (“EE”) 

coverage, and coverage for loss due to the actions of a Civil Authority.

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Plaintiffs made premium payments expecting in their time of need The 

Cincinnati Insurance Company would make good on its contractual obligations under 

the policy it wrote and issued. Then last month, Plaintiffs were forced to shut down 

their businesses due to the COVID-19 pandemic. Specifically, effective March 16, 

2020, during the term of the policy issued by The Cincinnati Insurance Company to 

Plaintiffs, Illinois Governor Pritzker issued an order closing all restaurants and bars 

to the public in an effort to address the pandemic. This has resulted in losses to 

businesses throughout the state of Illinois. Indeed, many businesses had to alter or 

shutter operations due to orders from Civil Authorities, such as the Illinois Governor 

and Director of Public Health. As a result, many insureds filed insurance claims for 

coverage for loss of BI, EE coverage, and coverage for loss due to the actions of a Civil 

Authority

Upon information and belief, The Cincinnati Insurance Company 

systematically denied and or claimed a reservation of rights refusing to pay on 

insurance claims brought by Plaintiffs—and hundreds of other putative class 

members —for coverage for losses stemming from the presence of SARS-CoV-2 and 

the COVID-19 pandemic, including of BI, EE coverage, and coverage for loss due to 

the actions of a Civil Authority. Defendant’s decision not to provide coverage and/or 

its decision to reserve its rights and refuse to pay claims under the common policy 

form(s) issued to Plaintiffs and the putative class members gives rise to Plaintiffs’

and the putative class members’ right to seek declaratory judgment pursuant to 735 

ILCS 5/2-701 establishing that they are entitled to receive the benefit of the insurance 

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coverage they purchased and for indemnification of the business losses they have

sustained.

II. PARTIES, JURISDICTION AND VENUE 

1. Plaintiffs, 3 Squares LLC, d/b/a 3 Squares Diner and Yusho LLC, d/b/a 

Jam Restaurant (collectively referred to as “Plaintiffs”), are both limited liability 

corporations organized under Illinois law with their principal places of business in 

Chicago, Cook County, Illinois. 

2. One or more of the members of Plaintiffs are citizens of the state of 

Illinois.

3. Plaintiff 3 Squares LLC is the owner and operator of 3 Squares Diner 

located at 1020 W. Lawrence Ave., Chicago, IL 60640. 

4. Plaintiff Yusho LLC is the owner and operator of Jam Restaurant 

located at 2853 N. Kedzie Ave., Chicago, IL 60640

5. Defendant The Cincinnati Insurance Company (“CIC”) is an Ohio 

corporation with its principal place of business in Ohio. CIC is an insurance company

engaged in the business of selling insurance contracts to commercial entities such

as Plaintiffs in Illinois and elsewhere. CIC is incorporated in the State of Ohio and

maintains its principal place of business in Ohio.

6. The Court has subject matter jurisdiction over this matter under 28 

U.S.C. 1332(a), because this matter involves citizens of different states and the 

amount in controversy exceeds $75,000.

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7. The Court has subject matter jurisdiction over this matter under 28 

U.S.C.1332(d)(2) and (6), as amended by the Class Action Fairness Act of 2005, 

because this matter was brought as a class action, the aggregate claims of the 

putative Class members exceed $5,000,000, exclusive of interest and costs, and at 

least one member of the putative Class is a citizen of a different state than CIC.

III. FACTUAL SUMMARY 

A. The Insurance Policy 

8. This action is brought by Plaintiffs, individually and on behalf of all 

other similarly situated insureds, that have been denied their contractual rights 

under common policy forms due to Defendant’s decision not to provide coverage for 

losses stemming from SARS-CoV-2 virus and/or COVID-19, including Business 

Income (“BI”), Extra Expense (“EE”) coverage, and coverage for loss due to the actions 

of a Civil Authority.

9. At all times relevant, CIC insured Plaintiffs pursuant to insurance 

policies drafted by CIC. 

10. 3 Squares LLC is insured pursuant to policy number EPP 049 15 94 / 

EBA 049 15 94. A copy of the policy is attached as Exhibit 1. 

11. Yusho LLC is insured pursuant to policy number ECP 050 44 94 / EBA 

050 44 94. A copy of the policy is attached as Exhibit 2. (Exhibit 1 and 2 collectively 

referred to as the “Policies”).

12. The Policies use standard common forms that contain the same and/or 

substantially similar provisions at issue in this action. 

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13. The Insurance Services Office, Inc. (“ISO”) publishes policy forms for use 

by the insurance industry. 

14. The Policies utilize, in part, policy forms and language published by the 

ISO, as reflected by the ISO copyright designation at the bottom of numerous pages 

of the Policies.

15. Prior to the effective date of the Policies, ISO published and made 

available for use a standard virus exclusion form.

16. Defendant CIC chose not to include the ISO standard virus exclusion 

form in the Policies.

17. Other than reference to a computer virus, the Policies include no 

exclusion that references the word virus.

18. Plaintiffs’ Policies provide coverage for loss of Business Income (“BI”), 

Extra Expense (“EE”) coverage, and coverage for loss due to the actions of a Civil 

Authority. 

19. Relevant portions of the Policies provide, subject to other terms, that 

Defendant CIC:

a. “...will pay for the actual loss of “Business Income” and “Rental 

Value” you sustain due to the necessary “suspension” of your 

“operations” during the “period of restoration”. The “suspension 

must be caused by direct “loss” to the property at a “premises” 

caused by or resulting from any Covered Cause of Loss;” and

b. “...will pay Extra Expense you sustain during the “period of 

restoration;” and

c. “...will pay for the actual loss of Business Income you sustain 

and necessary Extra Expense caused by action of civil authority 

that prohibits access to the premises...” when a “Covered 

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Cause of Loss causes damage to property other than property 

at the described premises...”

20. The term “civil authority” is not defined in the Policies.

21. Defendant’s standardized language in the Policies regarding coverage 

for loss of BI, EE coverage, and coverage for loss due to the actions of a Civil Authority 

is present in every policy issued by CIC to Plaintiffs and the putative class members 

as defined herein that provides coverage for loss of BI, EE coverage, and coverage for 

loss due to the actions of a Civil Authority.

22. As typified by Plaintiffs’ experience, CIC chose not to provide coverage 

for loss of BI, EE coverage, and coverage for loss due the actions of a Civil Authority 

under claims tendered for losses due to SARS-CoV-2 at, in, on or around insureds’ 

premises, losses due to the spread of SARS-CoV-2 and/or COVID-19 in the community 

(the “COVID-19 Pandemic”), or losses due to Civil Authority orders issued by the 

Governor of Illinois and the Illinois Department of Health addressing SARS-CoV-2 

and the COVID-19 Pandemic.

23. While the Policies were in force, Plaintiffs sustained, and continue to 

sustain, loss(es) due to SARS-CoV-2 and COVID-19 at, in, on, and/or around their

premises described in the Policies.

24. While the Policies were in force, Plaintiffs sustained, and continue to 

sustain, loss(es) due to the spread of SARS-CoV-2 and COVID-19 in the community.

25. While the Policies were in force, Plaintiffs sustained, and continue to 

sustain, losses due to the civil authority orders issued by the Governor of Illinois and 

the Illinois Department of Health addressing SARS-CoV-2 and COVID-19 Pandemic.

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B. The SARS-CoV-2 Virus 

26. SARS-CoV-2 is a virus.

27. SARS-CoV-2 is a physical substance.

28. SARS-CoV-2 can cause the illness known as COVID-19, which can be 

lethal. 

29. SARS-CoV-2 can be present outside the human body in viral fluid 

particles.

30. SARS-CoV-2 can and does remain capable of being transmitted and 

active on inert physical surfaces for a period of time.

31. SARS-CoV-2 can and does remain capable of being transmitted and 

active on floors, walls, furniture, desks, tables, chairs, countertops, computer 

keyboards, touch screens, cardboard packages, food items, silverware, plates, serving 

trays, glasses, straws, menus, pots, pans, kitchen utensils, faucets, refrigerators, 

freezers, and other items of property for a period of time.

32. SARS-CoV-2 can be transmitted by way of human contact with surfaces 

and items of physical property on which SARS-CoV-2 particles are physically present.

33. SARS-CoV-2 has been transmitted by way of human contact with 

surfaces and items of physical property located at premises in Illinois.

34. SARS-CoV-2 has been transmitted by human to human contact and 

interaction at premises in Illinois, including places like bars and restaurants.

35. SARS-CoV-2 can be transmitted through airborne particles emitted into 

the air at premises.

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36. SARS-CoV-2 has been transmitted by way of human contact with 

airborne SARS-CoV-2 particles emitted into the air at premises in Illinois.

37. The presence of any SARS-CoV-2 particles renders items of physical 

property unsafe.

38. The presence of any SARS-CoV-2 particles on physical property impairs 

its value, usefulness and/or normal function.

39. The presence of any SARS-CoV-2 particles causes direct physical harm 

to property.

40. The presence of any SARS-CoV-2 particles causes direct physical loss to 

property.

41. The presence of any SARS-CoV-2 particles causes direct physical 

damage to property.

42. The presence of any SARS-CoV-2 particles at premises renders the 

premises unsafe, thereby impairing the premises’ value, usefulness and/or normal 

function.

43. The presence of people infected with COVID-19 or carrying SARS-CoV2 particles renders physical property in their vicinity unsafe and unusable, resulting 

in direct physical loss to that property.

44. The presence of people infected with COVID-19 or carrying SARS-CoV2 particles at premises renders the premises, including property located at that 

premises, unsafe, resulting in direct physical loss to the premises and property.

C. Illinois’ Response to SARS-CoV-2 and COVID-19 

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45. In response to SARS-CoV-2 and the COVID-19 Pandemic, the Governor 

of Illinois has issued multiple executive orders pursuant to the authority vested in 

him by the Illinois Constitution and the laws of Illinois.

46. Similarly, the Illinois Department of Health, pursuant to its authority 

under Illinois law, has issued multiple orders, including a Stay At Home Order.

47. Similarly, the City of Chicago, pursuant to its authority, has issued 

orders, including curfew orders on all liquor sales throughout Chicago.

48. The State of Illinois is a civil authority as contemplated by the Policies.

49. The Illinois Department of Health is a civil authority as contemplated 

by the Policies.

50. The Governor of the State of Illinois is a civil authority as contemplated 

by the Policies.

51. The City of Chicago is a civil authority as contemplated by the Policies.

52. The Mayor of Chicago is a civil authority as contemplated by the 

Policies.

53. On March 11, 2020, the World Heath Organization characterized the 

COVID-19 outbreak as a pandemic.

54. On March 15, 2020, Illinois Governor J.B. Pritzker issued Executive 

Order 2020-07 stating “it is necessary and appropriate for the State of Illinois to 

immediately take measures to protect the public’s health in response to this COVID19 outbreak.” With this goal in mind, Governor Pritzker ordered that all bars and 

restaurants close to the public effective March 16, 2020 to March 30, 2020 (later 

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extended to April 30, 2020 per COVID-19 Executive Order No. 16) and prohibiting all

public and private gatherings of 50 people or more, in addition other strict mandates. 

This order was in response to the physical presence of SARS-CoV-2 and the COVID19 Pandemic.

55. The stated goal of this order was to slow the spread of SARS-CoV-2 by 

minimizing in-person interaction in an environment with “frequently used services 

in public settings, including bars and restaurants...” The March 15th order further 

provided that “the ongoing spread of COVID-19 and the danger the virus poses to the 

public’s health and wellness require the reduction of on-premises consumption of food 

and beverages.”

56. On March 20, 2020, Governor Pritzker issued a Closure Order

(Executive Order 2020-10) (a.k.a., a Stay At Home Order) requiring all Illinois 

residents to stay at home barring exceptions such as essential travel for essential 

work or supplies, exercise and recreation, through April 7, 2020. Moreover, the 

March 20th order reduced the allowable public and private gathering size to no more 

than 10 people. The March 20th order was again in direct response to the continued

and increasing presence of SARS-CoV-2on property at or around Plaintiffs’ premises.

57. Like the March 16, 2020 Closure Order, the March 20, 2020 Order

prohibited the public from accessing Plaintiffs’ restaurants, thereby causing the

necessary suspension of their operations and triggering the Civil Authority coverage

under the Policy.

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58. On March 26, 2020, Chicago Mayor Lori Lightfoot shut down Chicago’s 

most popular gathering spots, including the entire lakefront and all its parks, bike 

trails and beaches.

59. On April 8, 2020, Mayor Lightfoot issued a sweeping curfew order, with 

no definite end date, on all liquor sales across Chicago, banning sales after 9:00 p.m.

D. Illinois’ Exercise of Civil Authority Closes Plaintiffs’ Businesses 

60. Plaintiffs businesses do not qualify as Essential Businesses and were

required to cease and/or significantly reduce operations.

61. The civil authority orders, including, but not limited to the Stay At 

Home Order, prohibit access to Plaintiffs’ premises described in the Policies.

62. The State of Illinois, through the Governor and the Department of

Health, have issued, and continue to issue, authoritative orders governing

Illinoisans and Illinois businesses, including Plaintiffs in response to SARS-CoV-2 

and the COVID-19 Pandemic, the effect of which have required and continue to

require Plaintiffs to cease and/or significantly reduce operations at, and that have

prohibited and continue to prohibit access to, the premises described in the Policies.

63. State and local governmental authorities, and public health officials

around the Country, acknowledge that SARS-CoV-2 and the COVID-19 Pandemic

cause direct physical loss and damage to property. For example:

a. The state of Colorado issued a Public Health Order indicating

that “COVID-19... physically contributes to property loss, 

contamination, and damage...” (Emphasis added);

b. The City of New York issued an Emergency Executive Order in

response to COVID-19 and the Pandemic, in part “because the

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virus physically is causing property loss and damage.” (Emphasis 

added);

c. Broward County, Florida issued an Emergency Order 

acknowledging that COVID-19 “is physically causing property 

damage.” (Emphasis added);

d. The State of Washington issued a stay at home Proclamation 

stating the “COVID-19 pandemic and its progression... remains a

public disaster affecting life, health, [and] property...” (Emphasis 

added);

e. The State of Indiana issued an Executive Order recognizing

that COVID-19 has the “propensity to physically impact surfaces 

and personal property.” (Emphasis added);

f. The City of New Orleans issued an order stating “there is reason

to believe that COVID-19 may spread amongst the population by

various means of exposure, including the propensity to attach to

surfaces for prolonged period of time, thereby spreading from

surface to person and causing property loss and damage in certain 

circumstances.” (Emphasis added);

g. The State of New Mexico issued a Public Health Order

acknowledging the “threat” COVID-19 “poses” to “property.”

(Emphasis added);

h. North Carolina issued a statewide Executive Order in response to

the Pandemic not only “to assure adequate protection for lives,”

but also to “assure adequate protection of... property.” (Emphasis 

added); and

i. The City of Los Angeles issued an Order in response to COVID19 “because, among other reasons, the COVID-19 virus can

spread easily from person to person and it is physically causing 

property loss or damage due to its tendency to attach to surfaces 

for prolonged periods of time.” (Emphasis added).

64. SARS-CoV-2 and the COVID-19 Pandemic are physically impacting 

public and private property in Illinois and throughout the country.

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65. SARS-CoV-2 and the COVID-19 Pandemic have caused and continue to 

cause direct physical loss and damage to property.

66. People in Illinois have been diagnosed with COVID-19.

67. People in Illinois have, and have had, SARS-CoV-2 but have not been 

diagnosed with COVID-19.

68. People in Illinois have SARS-CoV-2 particles on or about their person 

and personal property.

69. Properties and premises throughout Illinois contain the presence of 

SARS-CoV-2 particles on surfaces and items of property.

70. It is probable that SARS-CoV-2 particles have been physically present 

at Plaintiffs’ premises described in the Policies during the time the Policies were in 

effect. 

71. It is probable that SARS-CoV-2 particles have been physically present 

on surfaces and items of property located at Plaintiffs’ premises described in the 

Policies during the time the Policies were in effect. 

72. It is probable that airborne SARS-CoV-2 particles have been physically 

present at Plaintiffs’ premises described in the Policies during the time the Policies

were in effect. 

73. It is probable that people carrying SARS-CoV-2 particles in, on or about 

their person have been present at Plaintiffs’ premises described in the Complaint 

during the time the Policies were in effect. 

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74. It is probable that airborne SARS-CoV-2 particles have been physically 

present at Plaintiffs’ premises described in the Policies during the time the Policies

were in effect. 

75. Plaintiffs have sustained direct physical loss and damage to items of 

property located at their premises and direct physical loss and damage to their

premises described in the Policies as a result of the presence of SARS-CoV-2 particles 

and/or the Pandemic. 

76. Plaintiffs submitted timely insurance claims to Defendant CIC.

77. Defendant CIC has denied Plaintiffs’ claims.

IV. CLASS ALLEGATIONS 

78. Pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1), and 

23(b)(2), Plaintiffs bring this action on behalf of themselves and the following class 

(the “Class”) of similarly situated persons:

All Illinois businesses insured under a policy issued by The Cincinnati 

Insurance Company with the same operative language as policy form 

numbers EPP 049 15 94 and ECP 050 44 94 with Business Interruption, 

Extra Expense and Civil Authority coverage who were denied coverage 

or met with a reservation of rights arising out of a claim(s) for SARSCoV-2, COVID-19, the COVID-19 Pandemic and/or Illinois’ civil 

authority “stay at home” order related losses.

79. The following are Excluded from the Class: Defendant, including any 

parent, subsidiary, affiliate, or controlled person of Defendant; Defendant’s officers, 

directors, agents, or employees; and the judicial officers assigned to this litigation, 

and any members of their staffs and immediate families.

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80. Plaintiffs reserve the right to modify or amend the definition of the 

proposed Class and/or to add subclasses, if necessary, before this Court determines 

whether certification is appropriate.

a. Numerosity 

81. The precise number of class members for the Class are unknown to 

Plaintiffs at this time but can be easily determined through appropriate discovery. 

Plaintiffs believe that because Defendant is a large insurer with a notable presence

in the State of Illinois and – upon information and belief – writes millions of dollars 

of business coverage premiums, the class of businesses affected by Defendant’s 

practices described herein consists of hundreds of businesses or the class of 

businesses affected are otherwise so numerous that joinder of all Class members is 

impractical. The unlawful practice alleged herein is a standardized and uniform 

practice, employed by Defendant pursuant to standardized insurance policy 

language, and results in the retention by Defendant of insurance benefits properly 

owed to Plaintiffs and the Class members. The class definition will permit the court 

to reasonably ascertain whether any individual or entity is a member of the class as 

any individual who or entity that is insured by Defendant and was denied coverage 

for SARS-CoV-2 related losses covered by BI, EE, or Civil Authority provisions.

82. Upon information and belief, Defendant uniformly refuses to pay 

insureds for SARS-CoV-2 related losses covered by BI, EE, and/or Civil Authority 

provisions of its business insurance policies. Accordingly, the Class consists of many 

hundreds, if not thousands, of Defendant’s insureds who were not paid or afforded 

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coverage under the terms of their insurance policies. Thus, pursuant to Federal Rules 

of Civil Procedure 23(a)(1), the large size of the Class renders the Class so numerous 

that joinder of all individual members is impracticable.

B. Commonality 

83. Common questions of law and fact predominate in this matter because 

Defendant’s conduct towards the members of the Class is identical. Defendant 

uniformly refuses to pay for losses covered by BI, EE, and/or Civil Authority 

provisions arising from SARS-CoV-2, COVID-19 and/or the COVID-19 Pandemic. 

Indeed, upon information and belief, Defendant responds to every claim at issue with 

an identical or near identical form letter reserving its rights and refusing to honor 

the claim(s).

84. Plaintiffs share a common interest with all members of the putative 

Class in the objects of the action and the relief sought.

85. Plaintiffs satisfy Federal Rules of Civil Procedure 23(a)(2)’s 

commonality requirement because its claims arise from a practice which Defendant 

applies uniformly to all the similarly situated Class members and are based on the 

same legal theories as all other members of the putative class, that coverage for 

SARS-CoV-2 related losses of BI, EE coverage, and coverage for loss due to the actions 

of a Civil Authority. Because Defendant’s conduct was and is uniform as to all Class 

members, the material elements of Plaintiffs’ claims and those of absent class 

members are subject to common proof, and the outcome of Plaintiffs’ individual 

actions will be dispositive for the Class. The common questions include, but are not 

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limited to, the following: (1) whether SARS-CoV-2 can cause direct physical loss or 

damage to property as stated in the common policy forms at issue; (2) whether SARSCoV-2 and/or COVID-19 is a covered cause of loss under the Policies; (3) whether the 

COVID-19 Pandemic is a covered cause of loss under the Policies; (4) whether the 

losses incurred by insureds as the result of the orders issued by the Governor of 

Illinois and the Illinois Department of Health are covered losses under the Policies; 

(5) whether insureds are entitled to coverage for their past and future Business 

Income loss(es) and Extra Expense resulting from SARS-CoV-2, COVID-19 and/or the 

COVID-19 Pandemic for the time period set forth in their Policies; (6) whether 

insureds are entitled to coverage for loss(es) due to the actions of Illinois’ civil 

authorities, including the Governor of Illinois and the Illinois Department of Health; 

and (7) whether insureds have coverage for any substantially similar civil authority 

order in the future that limits or restricts the access to insureds places of business 

and/or their operations.

C. Typicality 

 

86. Pursuant to Federal Rules of Civil Procedure 23(a)(3), Plaintiffs’ claims 

are typical of the claims of all other members of the Class because all such claims 

arise from the Defendant’s failure to provide coverage for losses covered by BI, EE, 

and/or Civil Authority provisions.

87. Plaintiffs and Class members’ legal claims arise from the same core 

practices, namely, the refusal to provide coverage for SARS-CoV-2 related losses 

covered by BI, EE, and/or Civil Authority provisions. The material facts underlying 

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the claims of each putative class member are the same material facts as those 

supporting the Plaintiffs’ claims alleged herein and require proof of the same material 

facts.

D. Adequacy 

88. Plaintiffs can and will adequately represent the putative class and its 

interests are common to, and coincident with, those of all absent class members. By 

proving its individual claims, Plaintiffs will necessarily prove the claims of the 

putative class and prove Defendant’s liability to the Class. Plaintiffs have no known 

conflicts of interest with any members of the Class; their interests and claims are not 

antagonistic to those of any other class members; nor are their claims subject to any 

unique defenses.

89. The representative Plaintiffs therefore can and will fairly and 

adequately protect and represent the interests of the Class under the criteria set forth 

in Federal Rules of Civil Procedure 23(a)(4).

90. Plaintiffs’ counsel—Romanucci & Blandin, LLC, Spangenberg Shibley 

& Liber, LLP, and Rutter & Russin, LLC—have extensive experience in complex 

commercial litigation, insurance coverage dispute litigation, class actions, and have 

adequate financial resources to ensure that the interests of the Class will not be 

harmed.

91. If appointed class representatives, Plaintiffs are aware of, and are

committed to, faithfully upholding their fiduciary duties to absent Class members. 

Plaintiffs and their counsel are committed to the vigorous prosecution of this action 

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and will allocate the appropriate time and resources to ensure that the class is fairly 

represented.

92. Plaintiffs and their counsel will therefore fairly and adequately assert 

and protect the interests of the Class.

E. Declaratory Relief Under Rule 23(b)(1)(A) 

93. Pursuant to Federal Rules of Civil Procedure 23(b)(1)(A), class 

treatment is warranted because the prosecution of separate actions by individual 

class members would create a risk of inconsistent or varying adjudications with 

respect to individual Class members that would establish incompatible standards of 

conduct for the party opposing the class. 

94. Defendant’s standardized language in the Policies and forms at issue 

regarding coverage for loss BI, EE coverage, and coverage for loss due to the actions 

of a civil authority is present in every CIC policy issued by Defendant to the putative 

Class members that provides for coverage for loss of BI, EE coverage, and coverage 

for loss due the actions of a Civil Authority.

95. As a result, separate actions brought by individual Class members 

would possibly lead to a situation where identical language is interpreted differently. 

F. Declaratory Relief Under Rule 23(b)(2) 

96. Pursuant to Federal Rules of Civil Procedure 23(b)(2), class treatment 

is warranted because Defendant has acted or refused to act on grounds generally 

applicable to all the members of the Class, thereby making final declaratory relief 

concerning the Class as a whole appropriate.

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97. Because declaratory relief is sought, class treatment ensures uniformity 

and consistency in results, enables the many small claims of Class members as well 

as claims for class-wide declaratory relief to be brought efficiently, and will provide 

optimum relief to Class members for their past and future injuries, as well as deter 

Defendant and other similar businesses from engaging in such wrongful conduct in 

the future.

98. Because Defendant has acted consistently towards all members of the 

Class, declaratory relief is appropriate with respect to both the Class and Plaintiff’s 

claims and is likewise subject to common proof and adjudication.

99. Based on the foregoing, class treatment is the most fair and efficient 

form of adjudication for this matter.

COUNT I: DECLARATORY JUDGMENT 

100. The allegations contained in the foregoing paragraphs are hereby 

incorporated by reference.

101. Plaintiffs bring this count on behalf of themselves and all members of 

the Class. 

102. There is a dispute about whether Plaintiffs and the Class members are 

entitled to coverage under the Policies for their loss(es) sustained and to be sustained 

in the future as described herein. Accordingly, Plaintiffs are entitled to declaratory 

relief from this Court pursuant to 735 ILCS 5/2-701 on behalf of itself and the Class.

103. Plaintiffs are entitled to and demand a declaration that:

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a. Plaintiffs and the Class members sustained direct physical loss or 

damage to property at theirs premises described in the Policies as a 

result of SARS-CoV-2, COVID-19 and/or the COVID-19 Pandemic; 

b. SARS-CoV-2 and/or COVID-19 is a covered cause of loss under the 

Policies; 

c. The COVID-19 Pandemic is a covered cause of loss under the Policies;

d. The losses incurred by Plaintiffs and the Class members as the result of 

the orders issued by the Governor of Illinois and the Illinois Department 

of Health are covered losses under the Policies;

e. Defendant CIC has not and cannot prove the application of any 

exclusion or limitation to the coverage for Plaintiffs and the Class 

members losses alleged herein; 

f. Plaintiffs and the Class members are entitled to coverage for their past 

and future Business Income loss(es) and Extra Expense resulting from 

SARS-CoV-2, COVID-19 and/or the COVID-19 Pandemic for the time 

period set forth in the Policies; 

g. Plaintiffs and the Class members are entitled to coverage for loss(es) due 

to the actions of Illinois civil authorities, including the Governor of 

Illinois and the Illinois Department of Health; 

h. Plaintiffs and the Class members have coverage for any substantially 

similar civil authority order in the future that limits or restricts the 

access to Plaintiffs or the Class members’ places of business and/or their 

operations; and 

i. Any other issue that may arise during the course of litigation that is a 

proper issue on which to grant declaratory relief.

104. Plaintiffs and the Class members do not seek a determination of their

damages resulting from SARS-CoV-2, the COVID-19 or the COVID-19 Pandemic. If 

there is a dispute between the parties as to the amount of the loss, the Policies provide 

that such a dispute should be resolved by Appraisal:

Appraisal 

 

Case: 1:20-cv-02690 Document #: 1 Filed: 05/04/20 Page 21 of 23 PageID #:21
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If we and you disagree on the value of the property, the amount 

of Net Income and operating expense, or the amount of "loss",

either may make written demand for an appraisal of the "loss". In 

this event, each party will select a competent and impartial 

appraiser. The two appraisers will select an umpire. If they

cannot agree, either may request that selection be made by judge 

of a court having jurisdiction. The appraisers will state separately 

the value of the property, the amount of Net Income and operating 

expense, and amount of "loss". If they fail to agree, they will 

submit their differences to the umpire. A decision agreed to by

any two will be binding. Each party will:

a. Pay its chosen appraiser; and

b. Bear the other expenses of the appraisal and umpire equally.

If there is an appraisal, we still retain our right to deny the claim.

(FM 101 05 16, page 30 of 40)

105. Plaintiffs, individually and on behalf of those similarly situated, pray

for declaratory relief from the Court that Defendant CIC must resolve any dispute 

about the amount of loss via Appraisal. Plaintiffs also request the Court to appoint 

the umpire if the appraisers cannot agree.

106. Plaintiffs, individually and on behalf of those similarly situated, pray 

for any further relief the Court deems proper, including attorney fees, interest, and 

costs as allowed by law or in the exercise of the Court’s equitable jurisdiction.

WHEREFORE, Plaintiffs, individually and on behalf of those similarly 

situated, seek judgment against Defendant CIC, as set forth above, plus interest, 

costs, and attorney fees as allowed by law.

DEMAND FOR TRIAL BY JURY 

 

 

 

 

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Dated: May 4, 2020 Respectfully Submitted,

By:/s/ Antonio M. Romanucci

Attorney for the Plaintiff

Antonio M. Romanucci

Gina A. Deboni

David A. Neiman

ROMANUCCI & BLANDIN, LLC 

321 N. Clark St., Suite 900

Chicago, IL 60654

Tel: (312) 458-1000

Fax: (312) 458-1004

aromanucci@rblaw.net

gad@rblaw.net

dneiman@rblaw.net

Nicholas A. DiCello (OH Bar 0075745, Pro Hac Vice motion forthcoming)

Dennis R. Lansdowne (OH Bar 0026036, Pro Hac Vice motion forthcoming)

Stuart Scott (OH Bar 0064834, Pro Hac Vice motion forthcoming)

Jeremy A. Tor (OH Bar 0091151, Pro Hac Vice motion forthcoming)

SPANGENBERG, SHIBLEY & LIBER, LLP 

1001 Lakeside Ave., Suite 1700

Cleveland, Ohio 44114

ndicello@spanglaw.com

dlansdowne@spanglaw.com

jtor@spanglaw.com

Robert P. Rutter (OH Bar 0021907, Pro Hac Vice motion forthcoming)

Robert A. Rutter (OH Bar 0081503, Pro Hac Vice motion forthcoming)

RUTTER & RUSSIN, LLC 

One Summit Office Park, Suite 650

4700 Rockside Road

Cleveland, Illinois 44131

(216) 642-1425

brutter@IllinoisInsuranceLawyer.com

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