UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHIEF OF STAFF LLC, on behalf of itself and 

all others similarly situated,

Plaintiff,

v.

HISCOX INSURANCE COMPANY, INC.,

Defendant.

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Civil Action No. 1:20-cv-03169

JUDGE GARY S. FEINERMAN

MAGISTRATE JUDGE MARIA 

VALDEZ

ORAL ARGUMENT REQUESTED

PLAINTIFF CHIEF OF STAFF’S MEMORANDUM IN OPPOSITION TO 

DEFENDANT’S RULE 12(B)(6) MOTION TO DISMISS PLAINTIFF’S FIRST 

AMENDED COMPLAINT 

Plaintiff Chief of Staff LLC operates a Connecticut hospitality support agency and is one 

of the tens of thousands of business operators in the United States wrongly denied insurance 

coverage for the forced interruption of their business. Plaintiff was issued an “all-risk” insurance 

policy by Defendant Hiscox Insurance Company, but has been denied coverage for business 

income losses resulting from Connecticut’s government shut-down orders that rendered its 

insured property unusable. 

Chief of Staff has properly alleged a claim for insurance coverage. Hiscox promised to 

pay for the actual loss of Business Income Chief of Staff sustained due to a suspension of 

operations caused by either physical loss of or damage to property. There is no dispute that 

Chief of Staff has suffered a suspension of its operations, yet Hiscox moves to dismiss that 

complaint on the ground that “physical loss of or damage to property” requires an physical 

alteration to the insured property. Not so. If property is rendered unusable, the insured has 

suffered a covered loss. See, e.g., TRAVCO Ins Co. v. Ward, 715 F. Supp. 2d 699, 708 (E.D. Va. 
-2- 

2010), aff’d, 504 F. App’x 251 (4th Cir. 2013). Because Chief of Staff experienced a loss of 

functionality of its covered property, it is entitled to coverage and Hiscox’s motion to dismiss 

should be denied. 

STATEMENT OF FACTS 

A. Chief of Staff’s All-Risk Businessowners Insurance Policy with Hiscox 

 Hiscox issued Chief of Staff Businessowners Policy No. UDC-1575520-BOP-19 to for 

the period April 30, 2019 to April 30, 2020, which was renewed as Businessowners Policy No. 

UDC-1575520-BOP-20 for the period April 30, 2020 to April 30, 2021 (“Policy” or “Policies”). 

Amend. Compl. ¶ 17. Both Policies are the same in all material respects. Amend. Compl. ¶ 17.1

Chief of Staff’s Policy included coverage for lost business income sustained due to a 

suspension of operations of its business located at 750 Main Street Suite 1304, Hartford, 

Connecticut. Declaration of Stephen A. Weiss (“Decl.”) Exh. A at 3, 11. Chief of Staff 

consistently paid all of its premiums due under the Policy to Hiscox which, in turn, promised to 

pay for business loses and extra expenses incurred as a result of an insured loss that prevented 

Chief of Staff from running its business, subject to a coverage limit of the “[a]ctual loss amount 

for up to 12 months.” Decl. Exh. C (Coverage Guide) at 2. 

 Specifically, the Policy provides: 

Business Income 

We will pay for the actual loss of Business Income you sustain due to the 

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

suspension must be caused by direct physical loss of or damage to property at the 

described premises. The loss or damage must be caused by or result from a 

Covered Cause of Loss. With respect to loss of or damage to personal property in 

the open or personal property in a vehicle, the described premises include the area 

within 100 feet of the site at which the described premises are located. 

 

1 Because the policies are materially the same, all references to Chief of Staff’s Policy refer to Decl. Exh. 

A.
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Decl. Exh. A at 11 § I(A)(5)(f)(1)(a) (emphasis added). Business Income is defined as net 

income “that would have been earned or incurred if no physical loss or damage had occurred” 

and continuing normal operating expenses incurred, including payroll. Id. at 12 

§ I(A)(5)(f)(1)(c). A “suspension” is defined to mean either a partial slowdown or complete 

cessation of Chief of Staff’s business activities, or that “a part or all of the described premises is 

rendered untenantable.” Id. at 11 § I(A)(5)(f)(3). “Operations” means the “business activities 

occurring at the described premises.” Id. at 36 § I(H)(8). And “period of restoration” means the 

time running from 72 hours after the loss or damage until business is resumed. See id. at 36 § 

I(H)(9). 

Chief of Staff’s Policy also covered “Extra Expense,” expenses incurred during the 

“period of restoration” that would not have incurred if there had been no direct physical loss or 

damage to property at the described premises, including expenses: 

(a) To avoid or minimize the suspension of business and to continue “operations”

(i) At the described premises; or 

(ii) At replacement premises or at temporary locations, including: 

relocation expenses, and costs to equip and operate the replacement or 

temporary locations. 

(b) To minimize the suspension of business if you cannot continue 

“operations”.

(c) To: 

(i) Repair or replace any property, or 

(ii) Research, replace or restore the lost information on damaged “valuable 

papers and records”; 

to the extent it reduces the amount of loss that otherwise would have been 

payable under this Additional Coverage or Additional 

Coverage f. Business Income. 

Id. at 13 § I(A)(5)(g)(1). As with the Business Income coverage, the Policy defines 

“suspension” to mean either a “partial slowdown or complete cessation of” business 
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activities; or “[t]hat a part or all of the described premises is rendered untenantable, if 

coverage for Business Income applies.” Id. at 13 § I(A)(5)(g)(3). 

Chief of Staff’s Policy further provided Civil Authority coverage:

When a Covered Cause of Loss causes damage to property other than property at 

the described premises, we 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 described premises, provided that both of the following 

apply: 

(1) Access to the area immediately surrounding the damaged property is 

prohibited by civil authority as a result of the damage, and the described 

premises are within that area but are not more than one mile from the 

damaged property; and

(2) The action of civil authority is taken in response to dangerous physical 

conditions resulting from the damage or continuation of the Covered 

Cause of Loss that caused the damage, or the action is taken to enable a 

civil authority to have unimpeded access to the damaged property. 

Id. at 13-14 § I(A)(5)(i). 

For each of these coverages, Business Income, Extra Expense, and Civil Authority, 

covered causes of loss include all “risks of direct physical loss” unless the loss is excluded or 

limited under the policy. Id. at 8 § I(A)(3). The Policy contains no exclusion or limitation that 

would bar recovery for the complete loss of functional use due to government closure orders.

B. Connecticut’s Forced Closure of Chief of Staff

In an attempt to prevent the spread of the COVID-19 pandemic, Connecticut Governor 

Ned Lamont issued Executive Order No. 7D on March 16, 2020, barring social and recreational 

gatherings of all types to fewer than 50 people and closing bars and restaurants to all service 

except food and non-alcoholic beverage takeout and delivery. Amend. Compl. ¶ 32 & n.27. 

Less than one week later, Governor Lamont required all non-essential business to reduce their inperson workforces by 100%. 
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As a result, Chief of Staff has been unable to use its property for its intended purpose. 

Amend. Compl. ¶ 43. Accordingly, it submitted a claim under its business interruption insurance 

Policy to Hiscox, but that claim was denied because Hiscox asserted that the income loss was not 

as a result of direct physical loss of or damage to property at the premises, and that the Policy 

contains an exclusion for any damages caused directly or indirectly by a virus. 

This action follows. Chief of Staff seeks a declaratory judgment and damages on behalf 

of itself and other Hiscox insureds whose business interruption losses resulting from the 

Connecticut Executive Orders and similar orders elsewhere were denied. For the reasons set 

forth below, Chief of Staff suffered a “direct physical loss” of its property as a result of the 

restriction of their businesses by the Executive Orders. Hiscox’s motion to dismiss should be 

denied. 

LEGAL STANDARD 

To survive such a motion, the complaint must provide “a short and plain statement of the 

claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide 

a defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007). In ruling on a Rule 12(b)(6) motion, all well-pleaded facts in are accepted 

as true and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Perez v. Amco Ins. 

Co., No. 08-CV-04364, 2010 WL 1582229, at *2 (N.D. Ill. Apr. 20, 2010) (citing Barnes v. 

Briley, 420 F.3d 673, 677 (7th Cir. 2005)).

ARGUMENT 

Under Connecticut law, an insurance policy is “interpreted by the same general rules that 

govern the construction of any written contract . . . the determinative question is the intent of the 

parties, that is, what coverage the [insured] expected to receive and what the [insurer] was to 
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provide, as disclosed by the provisions of the policy.” Johnson v. Conn. Ins. Guar. Ass’n, 31 

A.3d 1004, 1007 (Conn. 2011) (quoting Conn. Med. Ins. Co. v. Kulikowski, 942 A.2d 334, 338 

(Conn. 2008)). The policy must be interpreted as a whole, with all relevant portions considered 

together and, if possible, operative effect given to every provision in to reach a reasonable result. 

Id. “A policy should not be interpreted so as to render any part of it superfluous.” Hansen v. 

Ohio Cas. Ins. Co., 239 Conn. 537, 547–48, 687 A.2d 1262, 1267 (1996). “[A] provision in an 

insurance policy is ambiguous when it is reasonably susceptible to more than one reading.” 

Johnson, 31 A.3d at 1007. “Any ambiguity in the terms of an insurance policy must be 

construed in favor of the insured because the insurance company drafted the policy.” Id.

 Hiscox promised to pay for the actual loss of business income Chief of Staff sustained so 

long as the suspension of business operations was “caused by direct physical loss of or damage 

to property at the described premises.” Decl. Ex A at 11 § I(A)(5)(f)(1)(a). By its plain 

language, the Policy’s provision of coverage applies not only when property at the premises 

suffers physical damage, but also when that property is lost. Because Chief of Staff indisputably 

“lost” the use its property for its intended purpose due to Connecticut’s closure orders, its lost 

business income is covered under its policy’s Business Income, Extra Expense, and Civil 

Authority provisions, and Hiscox’s motion to dismiss should be denied. See Studio 417 Inc. v. 

The Cincinnati Ins. Co., No. 20-cv-03127-SRB, 2020 WL 4692385, at *5 (W.D. Mo. Aug. 12, 

2020) (denying motion to dismiss claim alleging business interruption insurance covered losses 

from civil authority closure orders). 

I. Chief of Staff properly alleges a covered cause of loss for Business Income and Extra 

Expense coverage. 

Hiscox’s promise to pay Business Income and Extra Expense coverage kicks in 

when Chief of Staff suffers a suspension of business operations caused by direct physical 
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loss of, or damage to, property at the described premises. Decl. Exh. A at 11 § I(A)(5)(f), 

13 § I(A)(5)(g), As set forth in the Amended Complaint, Connecticut’s closure orders 

have caused Chief of Staff to suffer a physical loss because it lost the use of its insured 

property for its intended purpose. Amend. Compl. 43. Hiscox argues that Chief of 

Staff’s suspension of operations did not trigger coverage because it was not caused by 

any physical or tangible alteration of its property. Mot. at 7-10. However, this position 

finds no support in the plain language of Chief of Staff’s Policy and ignores well-settled 

law regarding the construction of insurance policies. 

A. Physical loss of property does not require alteration to the property. 

The Policy’s plain language supports coverage in the absence of a tangible 

alteration to the property itself. It is black-letter law that a contract must, where possible, 

be interpreted so to give reasonable meaning to each provision without rendering any 

portion superfluous. Chief of Staff’s Policy covered both “loss of” property in addition 

to “damage to” property. 

First, both “loss of” and “damage to” are undefined terms. Because “loss” and 

“damage” are separated by the disjunctive “or,” they are necessarily different things. If a 

loss could not occur without damage, then the Policy would contain surplus language. 

Accordingly, “direct physical loss” must mean something other than “direct physical 

damage” and must encompass loss of use.

Hiscox conflates “loss” and “damage” to argue that the Policy requires a tangible, 

physical alteration. Putting aside that neither the word “alter” nor the word “alteration” is 

found anywhere in the Policy, Hiscox’s interpretation of the policy would render the 

phrase “loss of” meaningless and therefore cannot be correct. The Court must give 
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meaning to both terms. See Nautilus Grp., Inc. v. Allianz Global Risks US, 2012 WL 

760940, at * 7 (W.D. Wash. Mar. 8, 2012) (stating that “if ‘physical loss’ was interpreted 

to mean ‘damage,’ then one or the other would be superfluous”); Manpower, Inc. v. Ins. 

Co. of the State of Penn., 2009 WL 3738099, at *5 (E.D. Wis. Nov. 3, 2009) (same); see 

also Studio 417, 2020 WL 4692385, at *5 (W.D.Mo. Aug. 12, 2020) (same). 

It is simply untrue, as Hiscox contends, that settled law requires “loss of” and 

“damage to” to mean the same thing or require physical alteration of the property in 

question. To the contrary, “[t]he majority of cases appear to support [the] position that 

physical damage to the property is not necessary, at least where the building in question 

has been rendered unusable by physical forces.” TRAVCO Ins Co., 715 F. Supp. 2d at 

708. Courts in various jurisdictions have held that even absent a physical alteration, a 

physical loss may occur when the property is uninhabitable or unusable for its intended 

purpose. See Studio 417, 2020 WL 4692385, at *6 (denying motion to dismiss where 

physical loss tethered to COVID-19 and closure orders); Decl. Exh. D Mehl v. The 

Travelers Home & Marine Ins. Co., Case No. 16-CV-1325-CDP (E.D. Mo. May 2, 

2018), ECF No. 25 (denying insurer’s motion for summary judgment due to evidence that 

plaintiff considered the property uninhabitable); Port Auth. of N.Y. & N.J. v. Affiliated 

FM Ins. Co., 311 F.3d 226, 236 (3d Cir. 2002) (affirming denial of coverage but 

recognizing that “[w]hen the presence of large quantities of asbestos in the air of a 

building is such as to make the structure uninhabitable and unusable, then there has been 

a distinct [physical] loss to its owner”); Three Palms Pointe, Inc. v. State Farm Fire & 

Cas. Co., 250 F. Supp. 2d 1357, 1364 (M.D. Fla. 2003) (“under Florida law ‘direct 

physical loss’ includes more than losses that harm the structure of the covered property.”) 
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(citing Azalea, Ltd. v. Am. States Ins. Co., 656 So. 2d 600 (Fla. Dist. Ct. App. 1995)); 

Prudential Prop. & Cas. Ins. Co. v. Lilliard-Roberts, 2002 WL 31495830, at * 9 (D. Or. 

June 18, 2002) (citing case law for the proposition that “the inability to inhabit a building 

[is] a ‘direct, physical loss’ covered by insurance”); Murray v. State Farm Fire & Cas. 

Co., 509 S.E.2d 1, 17 (W.Va. 1998) (“Direct physical loss also may exist in the absence 

of structural damage to the insured property.”); General Mills, Inc. v. Gold Medal Ins. 

Co., 622 N.W.2d 147, 152 (Minn. Ct. App. 2001) (“[D]irect physical loss can exist 

without actual destruction of property or structural damage to property; it is sufficient to 

show that insured property is injured in some way.”); Sentinel Mgmt. Co. v. New 

Hampshire Ins. Co., 563 N.W.2d 296, 300 (Minn. Ct. App. 1997) (same). 

For example, in Gregory Packaging, Inc. v. Travelers Prop. Cas. Co. of Am., an 

ammonia leak rendered a juice plant inoperable but did not cause a physical alteration to 

the plant. The court found that the insured had suffered “direct physical loss or damage,” 

and expressly held that property can sustain physical loss or damage without 

experiencing structural alteration.” 2014 WL 6675934, at *5 (D.N.J. Nov. 24, 2014); see 

also Farmers Ins. Co. of Or. v. Trutantich, 858 P.2d 1332 (Or. App. 1993) (physical loss 

due to odor). 

Moreover, to read a requirement of physical alteration or actual damage into the 

phrase “loss of” would violate grammatical principles. See R.T. Vanderbilt Co., Inc. v. 

Hartford Accident & Indem. Co., 171 Conn. App. 61, 279, 156 A.3d 539, 657 (2017), 

aff’d, 333 Conn. 343, 216 A.3d 629 (2019). Specifically, an insured cannot suffer 

alteration or damage “of” their property, only “to” their property. Thus, neither actual 

damage nor physical alteration are required to sustain a “loss of” an insured’s property. 
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B. Hiscox’s authorities are not to the contrary. 

Hiscox argues that the existing case law required Chief of Staff to have 

experienced a physical manifestation of the alleged loss in the form of a tangible change 

to the insured property. Hiscox cites England v. Amica Mut. Ins. Co., No. 16-1951, 2017 

WL 3996394, at *6 (D. Conn. Sept. 11, 2017), for the proposition that direct physical loss 

of property unambiguously requires physical manifestation of change to the detriment of 

the insured, but Hiscox misrepresents the England case. There, the plaintiff alleged that 

she suffered a physical loss due solely to the fact that a chemical reaction occurred, not 

that the chemical reaction affected her use of the property. There, the court held that a 

“chemical reaction itself, absent physical manifestation in the Property marking a change 

to an unsatisfactory state” is not a loss under her policy. Id. at *8. Here, in contrast, 

Connecticut’s closure orders are not merely a background occurrence, those orders have 

detrimentally altered Chief of Staff’s ability to access and use its insured property. 

Hiscox also quotes Couch on Insurance for the proposition that “physical loss or 

damage” generally excludes losses that are intangible, or do not involve a physical alteration of 

the property. Mot. at 8. But Hiscox fails to quote the very next paragraphs of the treatise 

explaining that there are cases to the contrary: 

The opposite result has been reached, allowing coverage based on physical 

damage despite the lack of physical alteration of the property, on the theory that 

the uninhabitability of the property was due to the fact that gasoline vapors from 

adjacent property had infiltrated and saturated the insured building, and the theory 

that the threatened physical damage to the insured building from a covered peril 

essentially triggers the insured’s obligation to mitigate the impending loss by 

undertaking some hardship and expense to safeguard the insured premises. 

These cases present difficult analytical challenges to courts seeking a result that 

comports with the parties’ agreement. Why should a property insurer be 

responsible when gasoline fumes permeate the premises but not when there is 

asbestos in the building? One good argument for this seeming discrepancy is that 
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the asbestos was presumably put there deliberately, as part of the normal building 

and construction process, and, as such, is considerably less fortuitous than fumes 

from gasoline that has strayed onto the insured premises from property owned and 

controlled by another. The fortuity concept is, of course, a foundational concept in 

insurance law, and the fortuitous leaking of gasoline is much closer to the classic 

“random risk” that insurers are in the business of assessing than is the concealed 

but intentional presence of asbestos.

10A Couch on Insurance, § 148.46 (3d ed. 2020) (footnotes omitted). 

 The other cases cited by Hiscox either wrongly interpreted policy language or are 

distinguishable from the facts here. In Roundabout Theater Co. v. Continental Casualty, 

the court denied coverage when a theater was shut down as a result of a construction 

accident in a nearby building that closed the street in spite of the policy’s coverage of 

physical loss of or damage to property. 301 A.D. 1 (N.Y. App. Div. 1st Dept. 2002). 

However, that court incorrectly interpreted “loss” and “damage” to have the same 

meaning, 302 A.D.2d at 7, contrary to settled New York law that words in a disjunctive 

clause are to be considered separately, e.g., Cresvale Intern. Inc. v. Reuters Am., Inc., 257 

A.D.2d 502, 505 (N.Y. App. Div. 1st Dept. 1999), and that policies should not be 

interpreted to make words meaningless, Burlington Ins. Co. v. NYC Transit Auth., 79 

N.E.3d 477, 482 (N.Y. 2017). Because Newman Myers Kreines Gross Harris P.C. v. 

Great N. Ins. Co., 177 F. Supp. 3d 323, 330 (S.D.N.Y. 2014) relies upon Roundabout 

Theater, it suffers from the same flawed reasoning and is inconsistent with settled New 

York law.2

Hiscox also argues that the Policy’s definition of “period of restoration” supports 

the requirement of a physical or tangible alteration of property. Mot. at 9. Again, not so. 

 

2 For the same reasons, because they treated “loss” and “damage” the same., both Gavrilides Mgmt. Co. v. 

Michigan Ins. Co., No. 20-258-CB-C30, Ingham Co., Mich, (July 1, 2020) and Rose’s 1, LLC v. Erie Ins. 

Exch., No. 2020-CA-002424B (Aug. 6, 2020), Def. Decl. Exhs. F, H, are also incorrectly decided. 
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Hiscox continues its misdirection by failing to quote the full relevant language, and a 

complete reading of that section supports coverage. Once a loss has occurred, Plaintiffs’ 

insurance pays for losses during the “suspension of ‘operations’ during the ‘period of 

restoration.’” Decl. Exh A at 11 § I(A)(5)(f)(1)(a). Both “suspension,” id. at 12 § 

I(A)(5)(f)(3), and “period of restoration,” id. at 36 § I(H)(9), are defined terms that 

describe the nature and scope of the insured’s losses, not the existence of a loss. Neither 

term requires a physical alteration to have meaning within the policy. It is true that the 

“period of restoration” can provide a measure of time that ends when property is 

“repaired, rebuilt, or replaced.” Id. at 36 § I(H)(9)(2)(a). But the “period of restoration” 

can also end “when business is resumed at a new permanent location.” Id. § 

I(H)(9)(2)(b). Thus, coverage here would not write “period of restoration” out of the 

policy, as Hiscox claims. Rather, “period of coverage” was drafted with an 

understanding that the covered loss could include “loss of property” including the 

inability to use the insured location. 

C. Alternatively, “physical loss of or damage to property” is ambiguous.

For the reasons set forth above, Chief of Staff has suffered “direct physical loss of” its 

property when its business was curtailed as a result of the stay-at-home orders. The more 

persuasive authority supports this result. However, if the Court is undecided as to whether 

Plaintiffs suffered a “direct physical loss,” Plaintiffs loss should have coverage because the 

phrase “direct physical loss or damage” is ambiguous. See Conn. Ins. Guar. Ass’n v. Fontaine, 

900 A.2d 18, 23 (Conn. 2006) (holding when the words of an insurance contract are susceptible 

of two equally reasonable interpretations, that which will sustain the claim and cover the loss 

must prevail). 
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 The fact that there are conflicting authorities as to the interpretation of whether physical 

change is necessary for a “physical loss” demonstrates that the term is ambiguous. See, e.g., 

Amerada Hess Corp. v. Zurich Ins. Co., 29 F. App’x 800, 805 (3d Cir. 2002); Stroehmann v. 

Mutual Life Ins. Of N.Y., 300 U.S. 435, 439 (1937) (“Examination of the words relied upon to 

show an exception to the incontestability clause of the policy discloses ample cause for doubt 

concerning their meaning. The arguments of counsel have emphasized the uncertainty. The 

District Court and the Circuit Court of Appeals reached different conclusions, and elsewhere 

there is diversity of opinion.”); Alliance Life Ins. Co. v. Ulysses Volunteer Fireman’s Relief 

Ass’n., 529 P.2d 171, 180 (Kan. 1974). 

Moreover, other courts have looked to the definitions in third-party liability provisions in 

assessing ambiguity. See Mehl, ECF No. 25 Decl. Ex. D at 2. Here, Chief of Staff’s liability 

coverage expressly defines “property damage” to include both “[p]hysical injury to tangible 

property, including all resulting loss of use of that property” and “[l]oss of use of tangible 

property that is not physically injured.” Decl. Ex A at 51 § II(F)(17). For the Policy’s terms to 

have consistent meaning, “physical loss of or damage to property” must include situations where 

property is rendered functionally unusable, even if there is no alteration to that property. In light 

of this definition, Hiscox’s argument that the undefined term “physical loss of or damage to” 

requires a tangible physical manifestation of damage or physical alteration demonstrates an 

ambiguity because the terms are susceptible to two equally reasonable interpretations. 

II. Chief of Staff has properly alleged Civil Authority coverage. 

Civil Authority coverage applies when (1) other property is damaged, (2) an action of 

civil authority prohibits access to the described premises and surrounding area, (3) the described 

premises is within one mile of the damaged other property, and (4) the action of civil authority is 
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in response to the cause of loss that caused damage. Decl. Exh. A at 13-14 § I(A)(5)(g). For the 

same reasons Chief of Staff has suffered “physical loss of or damage to” its property as a result 

of the Connecticut’s closure orders such that the loss is covered under the regular business 

interruption coverage, other property within one mile of the insured property was likewise 

damaged by the orders. 

Defendants argue at length that Chief of Staff has failed to allege an order physically 

prohibiting “all access to the described premises.” But the Policy does not include any language 

to suggest that an order prohibiting access must prohibit “all” or “any” access. In addition, Chief 

of Staff alleges that the closure orders fully prohibited access to Plaintiff’s property, prohibited 

access to all nonessential businesses and not-for-profit enterprises, and required a 100% 

reduction in workforces. Amend. Compl. ¶¶ 32, 47. At the motion-to-dismiss stage, these 

allegations plausibly allege that access was prohibited to such a degree as to trigger the civil 

authority coverage. See Studio 417, 2020 WL 4692385, at *7 (denying motion to dismiss claim 

for civil authority coverage from COVID-19 related closure orders). 

IV. The Policy’s virus exclusion does not apply to losses caused by Connecticut’s closure 

orders. 

Hiscox’s final argument is that Chief of Staff’s Policy excludes the loss caused by the 

closure orders because it contains an exclusion for losses caused by any “virus, bacterium or 

other microorganism that induces or is capable of inducing physical distress, illness or disease.” 

Mot. at 13. Under Connecticut law, unless the court concludes with a “high degree of certainty” 

that the policy language clearly and unambiguously excludes the claim, the language should be 

construed in favor of the insured. Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 967 A.2d 1, 22 

(Conn. 2009). That standard is not satisfied here. 
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The virus exclusion contained in Plaintiff’s Policy is intended to apply only in the event 

of contamination by bacteria or virus at the insured property. See Decl. Exh. E (ISO Circular LICF-2006-175). The Circular specifically notes that the virus exclusion was envisioned as a gap 

filler for instances where pollution exclusions were not being applied to contamination from viral 

or bacterial sources. Id. at 5. The examples listed specifically describe the spread of disease by 

the presence of disease-causing agents on interior building surfaces or the surfaces of personal 

property. Id.

As Hiscox recognizes in its brief, there is no allegation that there was a virus infestation 

in Plaintiff’s property. See Mot. at 4-5. As Plaintiff alleges, the cause of its loss was the 

Connecticut closure order, not an infestation of the coronavirus, COVID-19. The exclusion was 

never intended to apply to Chief of Staff’s situation, and to apply it here would do violence to the 

parties’ intentions.

For the same reason, both Hiscox’s reference to anti-concurrent causation language and 

citations to related case law are unavailing. ISO Circular LI-CF-2006-175 makes plain that 

Hiscox adopted the “virus exclusion” to avoid liability only when a disease-causing 

microorganism contaminates the insured property. This meaning must also apply when read in 

context with the “broad causal language.” The exclusion does not apply merely because a virus 

is somewhere in the chain of events that lead to Chief of Staff’s loss. Even if the exclusion 

applies to indirect losses, the only losses excluded are those flowing either directly or indirectly 

from contamination of Chief of Staff’s property. Because Chief of Staff has not alleged a 

contamination of its property, the exclusion cannot bar coverage for its business income losses. 

CONCLUSION 

For the aforementioned reasons, Hiscox’s motion to dismiss should be denied.
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Dated: September 4, 2020 

SEEGER WEISS LLP 

Attorneys for Plaintiff 

By: /s/ Stephen A. Weiss 

 STEPHEN A. WEISS

Christopher A. Seeger 

Stephen A. Weiss 

SEEGER WEISS

77 Water Street, 8th Floor 

New York, New York 10005 

Telephone: 212/584-0700 

James E. Cecchi

CARELLA, BYRNE, CECCHI 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road

Roseland, New Jersey 07068 

(973) 994-1700

Samuel H. Rudman 

ROBBINS GELLER RUDMAN 

& DOWD LLP 

58 South Service Road, Suite 200 

Melville, NY 11747

(631) 367-7100

Paul J. Geller 

Stuart A. Davidson 

ROBBINS GELLER RUDMAN 

& DOWD LLP 

120 East Palmetto Park Road, Suite 

500

Boca Raton, Florida 33432 

(561) 750-3000

Attorneys for Plaintiff 
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CERTIFICATE OF SERVICE

I hereby certify that on September 4, 2020, I electronically filed the foregoing document 

with the Clerk of the Court by using the CM/ECF system which will send a notice of filing to: 

Attorneys for Defendant: 

Peter J. Valeta (3128282) 

Wendy N. Enerson (6272377) 

COZEN O’CONNOR

123 North Wacker Drive, Suite 1800 

Chicago, Illinois 60606 

Phone: (312) 474-7981 

Phone: (312) 382-3162 

Email: pvaleta@cozen.com 

wenerson@cozen.com 

Judy Y. Barrasso, La. Bar No. 02814 (PHV) 

Celeste Coco-Ewing, La. Bar No. 25002 (PHV)

Chloé M. Chetta, La. Bar No. 37070 (PHV) 

BARRASSO USDIN KUPPERMAN 

FREEMAN & SARVER, L.L.C. 

909 Poydras Street, Suite 2350 

New Orleans, LA 70112 

Main: 504-589-9700 

Email: jbarrasso@barrassousdin.com 

ccoco-ewing@barrassousdin.com 

cchetta@barrassousdin.com 

 /s/ Stephen A. Weiss 

 Stephen A. Weiss