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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BILLY GOAT TAVERN 1, INC., )

BILLY GOAT MIDWEST, LLC, BILLY )

GOAT NORTH II, INC., BILLY GOAT )

VI, INC., BILLY GOAT INN, INC., )

BILLY GOAT TAVERN WEST, LLC, )

all d/b/a BILLY GOAT TAVERN, and all ) No. 20 CV 02068

others similarly situated )

)

Plaintiffs, )

)

v. )

)

SOCIETY INSURANCE ) Honorable Judge Harry D. Leinenweber

) Magistrate Judge Susan E. Cox

Defendants. )

MEMORANDUM IN SUPPORT OF DEFENDANT SOCIETY INSURANCE’S

MOTION FOR SUMMARY JUDGMENT

There is no insurance coverage under the Society Policy for Plaintiffs’ claims for loss of 

business income. Plaintiffs allege their businesses have slowed as a result of Illinois Governor 

J.B. Pritzker’s Executive Orders aimed at curbing the spread of COVID-19. However, those 

intangible economic claims are not covered as a matter of law under the plain and unambiguous 

terms of the insurance policy issued by Society. 

To obtain “loss of Business Income” coverage under the Society Policy there must be 

“direct physical loss of or damage to” property at Plaintiffs’ premises that causes a necessary 

suspension in operations. Plaintiffs did not suspend dine-in operations because of any physical 

loss of or damage to property at their premises, but because of an external factor: the Executive 

Orders seeking to limit the spread of COVID-19. Plaintiffs admit that they suspended their 

operations in compliance with the Governor’s Executive Orders implementing restrictions on the 

public’s ability to congregate in bars and restaurants. Those orders have nothing to do with 

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damage or loss to property. The point is to keep people away from one another, not away from 

damaged property or buildings.

Plaintiffs do not meet the Illinois legal standard for a claim for business income loss 

based on direct physical loss to covered property. Under Illinois law, a “physical” loss or 

damage means an alteration to the structure, composition, or form of Plaintiffs’ tangible 

property. This standard is not met where a business, like Plaintiffs’, suffers only intangible, 

economic losses. Here, all properties are physically unchanged and undamaged, and, in fact, 

many are in use, preparing and serving food for off-premises enjoyment. In short, the undisputed 

facts establish that Plaintiffs’ loss of business income was not caused by a “Covered Cause of 

Loss,” or “direct physical loss of or damage to covered property at the described premises” as 

required by the Society Policy. 

Therefore, Defendant Society is entitled to summary judgment and a declaration that 

there is no insurance coverage under the Society Policy for Plaintiffs’ claims

I. SOCIAL DISTANCING EXECUTIVE ORDERS ISSUED BY GOVERNOR PRITZKER.

Illinois Governor J.B. Pritzker, like other governors around the country, entered 

executive orders that required restaurants to stop providing food and beverages for on-premises 

consumption in order to enable social distancing and minimize the spread of COVID-19. As a 

result of Governor Pritzker’s COVID-19 related Executive Orders, Plaintiffs have had to 

temporarily limit their business to off-premises dining, such as take-out or delivery orders, and 

have allegedly incurred a loss of income as a result.

Beginning in March, Governor Pritzker, issued several executive orders (collectively, 

“the Executive Orders”) that are relevant to this litigation. Executive Order 2020-07 was issued 

on March 16, 2020 (“the March 16 Order”) and states that “COVID-19 is a novel and severe 

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acute respiratory illness that can spread among people through respiratory transmission.” 

(Society’s Statement of Material Undisputed Facts (“SOF”) ¶¶ 20-21.) As a result, “social 

distancing, which consists of maintain [sic] at least a six-foot distance between people, is the 

paramount strategy for minimizing the spread of COVID-19.” (Id. at ¶ 22.) “[T]he number of 

suspected COVID-19 cases in Illinois is increasing exponentially . . . indicating that drastic 

social distancing measures are needed.” (Id.) Accordingly, it provided: 

Section 1. Beginning March 16, 2020 at 9 p.m. through March 30, 2020, all 

businesses in the State of Illinois that offer food or beverages for on-premise 

consumption—including restaurants, bars, grocery stores, and food halls—must 

suspend service for and may not permit on-premises consumption. Such 

businesses are permitted and encouraged to serve food and beverages so that they 

may be consumed off-premises, as currently permitted by law, through means 

such as in-house delivery, third-party delivery, drive-through, and curbside pickup. In addition, customers may enter the premises to purchase food or beverages 

for carry out. 

(Id. at ¶ 23.) The reason for the prohibition of on-premises consumption of food at restaurants, 

as specified in the March 16 Order, is to reduce the transmission of COVID-19 because public 

dining “usually involves prolonged close social contact contrary to recommended practice for 

social distancing.” (Id. at ¶ 24.) 

Executive Order 2020-10 was issued on March 20, 2020 (“the March 20 Order”). (Id. at

¶ 25.) The purpose of the March 20 Order was “for the preservation of public health and safety 

throughout the entire State of Illinois and to ensure that our healthcare delivery system is capable 

of serving those who are sick . . . [and] to slow and stop the spread of COVID-19.” (Id. at ¶ 27) 

The March 20 Order required all businesses and operations in the state to cease, with the 

exception of “Essential Businesses and Operations,” which it “encouraged” to remain open. (Id. 

at ¶¶ 26, 29.) It also prohibited gatherings of more than ten people. (Id. at ¶ 26.) “Essential 

Businesses and Operations” included “[r]estaurants and other facilities that prepare and serve 

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food, but only for consumption off-premises, through such means as in-house delivery, thirdparty delivery, drive through, curbside pick-up, and carry-out.” (Id. at ¶ 28.) The order further 

required Illinois residents to “shelter in place” but allowed citizens to leave their homes to 

perform Essential Activities, including obtaining and delivering food, and to operate Essential 

Businesses and Operations. (Id. at ¶ 31.) Executive Order 2020-18, issued on April 1, 2020

(“April 1 Order”), again recognized that “social distancing, which requires maintaining at least a 

six-foot distance between people, is a paramount strategy for minimizing the spread of COVID19 in our communities[,]” and that “drastic social distancing measures are needed[.]” (Id. at ¶ 

36.)

II. THE SOCIETY POLICY REQUIRES A “DIRECT PHYSICAL LOSS OF OR DAMAGE TO 

COVERED PROPERTY” FOR THERE TO BE COVERAGE UNDER THE BUSINESS INCOME 

AND EXTRA EXPENSE ADDITIONAL COVERAGES.

The insurance contract at issue is a Businessowners Policy, with policy number 

BP17022546-2, between the named Plaintiffs and Society Insurance for the period of August 26, 

2019 to August 26, 2020 (“the Society Policy”). The Society Policy is composed of a number of 

forms; however, the allegations in the Complaint relate to Form TBP2 (05-15), Businessowners 

Special Property Coverage Form (“the Special Property Coverage Form”).1 (Id. at ¶ 14.)

The Special Property Coverage Form consists of eight parts. Part A. Coverage describes 

the coverages available under the Special Property Coverage Form and is divided into six 

numbered sections: 1. Covered Property, 2. Property Not Covered, 3. Covered Causes of Loss, 4. 

Limitations, 5. Additional Coverages, and 6. Coverage Extensions. 

Part A begins:

A. Coverage

1 All references to the Society Policy should be read as referring to the Businessowners Special Property Coverage 

Form contained in the Society Policy. 

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We will pay for direct physical loss of or damage to Covered Property at 

the premises described in the Declarations caused by or resulting from any 

Covered Cause of Loss.

1. Covered Property

Covered Property includes Buildings as described under 

Paragraph a. below, Business Personal Property as described 

under Paragraph b. below, or both, depending on whether a Limit 

of Insurance is shown in the Declarations for that type of 

property. . . .

a. Buildings, meaning the buildings and structures at the premises 

described in the Declarations . . .

b. Business Personal Property located in or on the buildings at the 

described premises or in the open (or in a vehicle) within 100 feet 

of described premises, including: . . .

(Id. at ¶ 15 (emph. added).) The term Covered Cause of Loss is defined in Section 3 of Part A 

and states:

3. Covered Causes Of Loss

Direct Physical Loss unless the loss is excluded or limited under this coverage 

form.

(Id. at ¶ 16.)

Plaintiffs allege they submitted a claim for Business Income, an Additional Coverage 

under Section 5, paragraph (g) of Part A. (Id. at ¶ 17.) It provides, in pertinent part:

5. Additional Coverages

g. Business Income 

(1) Business Income

(a) 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 a direct physical loss 

of or damage to covered property at the described premises. The loss 

or damage must be caused by or result from a Covered Cause of Loss.

. . . 

(b) We will only pay for loss of Business Income that you sustain during 

the “period of restoration” and that occurs within 12 consecutive 

months after the date of direct physical loss or damage.

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(Id. (emph. added).)

“Period of Restoration” is a defined term under the policy, and refers to the period of 

time that:

a. Begins immediately after the time of direct physical loss or 

damage for Business Income or Extra Expense coverage caused by 

or resulting from any covered Cause of Loss at the described 

premises; and 

b. Ends on the earlier of:

(1) The date when the property at the described premises 

should be repaired, rebuilt or replaced with reasonable 

speed and similar quality; or

(2) The date when business is resumed at a new permanent 

location.

(Id. at ¶ 18 (emph. added).) 

AS A MATTER OF LAW THERE IS NO COVERAGE UNDER THE SOCIETY POLICY

The only issue in this case is a question of law: whether the losses claimed by Plaintiffs 

fall within the coverage provided by the Society Policy. The existence of coverage is an 

essential element of Plaintiffs’ case, and Plaintiffs have the burden of proving their loss falls 

within the terms of the Society Policy. Fiorentini v. Paul Revere Life Ins. Co., 893 F.3d 476, 

480 (7th Cir. 2018) (citing St. Michael’s Orthodox Catholic Church v. Preferred Risk Mut. Ins. 

Co., 146 Ill. App. 3d 107, 109-110, 496 N.E.2d 1176 (Ill. App. Ct 1986)). The court must 

construe the policy as a whole “‘taking into account the type of insurance for which the parties 

have contracted, the risks undertaken and purchased, the subject matter that is insured and the 

purposes of the entire contract.’” Westfield Ins. Co. v. Rose Paving Co., No. 12 C 40, 2014 WL 

866119, at * 2 (N.D. Ill. March 5, 2014) (quoting Crum & Foster Managers Corp. v. Resolution 

Trust Corp., 156 Ill. 2d 384, 391, 620 N.E. 2d 1073 (Ill. 1993)). “Insurance policies must be 

construed and enforced as made by the parties; the courts have no right to make a new contract 

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for the parties. . . . .” Schewe v. Home Ins. Co., 80 Ill. App. 3d 829, 832, 400 N.E. 2d 501 (Ill. 

App. Ct. 1980). Clear and unambiguous policy terms and provisions must be taken in their plain, 

ordinary and popular sense. Medmarc Cas. Ins. Co. v. Avent America, Inc., 653 F. Supp. 2d 879, 

(N.D. Ill. 2009) (citing Travelers Ins. Co. v. Eljer Mfg., Inc., 197 Ill.2d 278, 292-93, 757 N.E.2d 

481 (2001)).

I. PLAINTIFFS’ CLAIM WAS NOT THE RESULT OF “PHYSICAL” LOSS OR DAMAGE, NOR 

WAS IT CAUSED BY A COVERED CAUSE OF LOSS UNDER THE SOCIETY POLICY AS A 

MATTER OF LAW.

A. A “PHYSICAL” LOSS IS ONE THAT CAUSES A CHANGE IN THE PHYSICAL 

CHARACTERISTICS OF THE COVERED PROPERTY.

As Plaintiffs admit, the Business Income additional coverage of the Society Policy covers 

loss of business income sustained due to a suspension of the insured’s operations only if that 

suspension is caused by a “direct physical loss of or damage to covered property at the described 

premises.” (Compl. Ex. A at 94, ¶ (g)(1)(a) (emph. added).) Plaintiffs do not have a claim for 

“direct physical loss of or damage to covered property at the described premises.” Under the 

plain language of the Society Policy and Illinois law, the term “physical” in the phrases “direct 

physical loss of or damage to covered property” and “direct physical loss” clearly modifies “loss 

of or damage to” and “loss.” Eljer Mfg., Inc., 197 Ill. 2d at 301; see also, Ward Gen’l Ins. 

Servs., Inc. v. Employer’s Fire Ins. Co., 7 Cal. Rptr. 3d 844, 489 (Cal. Ct. App. 2003) (finding 

that the word “physical” modifies both loss and damage because “[m]ost readers expect the first 

adjective in a series of nouns or phrases to modify each noun or phrase in the following series 

unless another adjective appears”).

Under Illinois law, a property sustains a “physical” injury when it “is altered in 

appearance, shape, color or in other material dimension.” Eljer Mfg., Inc., 197 Ill. 2d at 301.

Conversely, intangible damage, such as diminution in value, is not a “physical” injury to 

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property. Id. at 301-02. The same is true in the Seventh Circuit, which requires a change in the 

physical, as opposed to intangible, characteristics of property to satisfy a “physical” loss 

requirement. Windridge of Naperville Condo v. Philadelphia Indem. Ins. Co., 932 F.3d 1035, 

1040 (7th Cir. 2019) (Illinois law); see also Advance Cable Co. v. Cincinnati Ins. Co., 788 F.3d 

743, 747 (7th Cir. 2015) (Wisconsin law). As explained by a leading treatise on insurance law 

(Couch on Insurance): “[t]he requirement that the loss be ‘physical,’ given the ordinary 

definition of that term, is widely held to exclude 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 § 148.46 (3d Ed. 2019). 

The interpretation of “physical” in Eljer Manufacturing is also consistent with the 

decisions of courts across the country that have interpreted the phrase “direct physical loss.” As 

recently stated by the Southern District of Florida, 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.’” Mama Jo’s, Inc. v. Sparta Ins. Co., 2018 WL 3412974, at 

*9 (S.D. Fla. June 11, 2018) (citation omitted). See also, Ward Gen. Ins. Servs., 114 Cal. App. 

4th at 556 (“direct physical loss” requires loss of something that “has a material existence, 

formed out of tangible matter, and is perceptible to the sense of touch”); Universal Image Prods., 

Inc. v. Fed. Ins. Co., 475 Fed. Appx. 569 (6th Cir. 2012) (requirement of “direct physical loss or 

damage” not met where presence of bacteria in air conditioning system did not cause tangible 

damage to insured premises); Columbiaknit, Inc. v. Affiliated FM Ins. Co., No. Civ. 98–434–HU, 

1999 WL 619100, at *7 (D.Or. Aug.4, 1999) (exposure of clothing to elevated spore counts was 

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not “physical loss” in the absence of a “distinct and demonstrable physical change to the garment 

necessitating some remedial action”); Mastellone v. Lightning Rod Mut. Ins. Co., 175 Ohio App. 

3d 23, 884 N.E. 2d 1130, 1144 (Ohio Ct. App. 2008) (holding that mold does not constitute 

“physical damage” because “[t]he presence of surface mold did not alter or affect the structural 

integrity of the [property]”).

There has been no alteration in the structure or composition of Plaintiffs’ covered 

property, and therefore there has been no “direct physical loss of or damage to covered property 

at the described premises” and no “Covered Cause of Loss” within the meaning of the Society 

Policy. Eljer Mfg., Inc., 197 Ill. 2d at 301-02. While Plaintiffs allege, in a cursory fashion, that 

“COVID-19 rendered the covered property at the premises . . . unsafe and inaccessible for dinein customers” (Compl. ¶ 53), the very Executive Orders relied on by Plaintiffs evidences that it is 

groups of people, without adequate social distancing, that are unsafe in any location because of 

COVID-19. (SOF ¶¶ 22, 24, 26, 30.) It is not Plaintiffs’ premises themselves that are unsafe, 

but the possible threat of transmission among large groups of people within any area. This 

distinction is demonstrated by the fact that under the March 16 Executive Order, Plaintiffs are 

allowed, encouraged, and, in fact, are continuing to operate on their premises for the purposes of 

selling food and beverages for off-premises consumption. (Id. at ¶¶ 23, 28) Plaintiffs have 

presented no evidence or allegations that the structural integrity of any of their restaurants or 

business personal property have been altered, or their physical characteristics have been 

changed—the walls remain standing, the roofs have not been torn off, and the property remains 

untouched by fire or water—and, in fact, the Plaintiffs are still using many of the restaurants for 

preparing and serving food for takeout and delivery. (Id. at ¶ 41.) Consequently, Plaintiffs have 

not suffered the type of harm covered by the Society Policy, nor have they suffered a harm 

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resulting from a Covered Cause of Loss. Therefore, there is no coverage under the Society 

Policy as a matter of law and summary judgment should be granted in Society’s favor. 

B. THE PARTIAL TEMPORARY LIMITATION OF PLAINTIFFS’ OPERATIONS IS NOT A 

“PHYSICAL” LOSS OR DAMAGE AS A MATTER OF LAW.

Plaintiffs’ allegation that Governor Pritzker’s Executive Orders have temporarily limited 

their ability to provide on-site consumption of food and beverages does not, as a matter of law,

constitute a “physical” loss or damage. This temporary, partial limitation of business operations 

is an intangible financial situation, not an alteration in the tangible, physical characteristics of the 

property. The appearance, shape, structural integrity, nor any other physical characteristic of the 

property have changed. Rather, Plaintiffs’ alleged harm is an intangible change in the available 

business operations similar to a change in zoning resulting in different hours a business can be 

open or a temporary suspension of a liquor license.

The only court in Illinois to consider whether a limitation on use constitutes “physical” 

property damage rejected that proposition. In the context of a third-party liability policy, the 

court in Mutlu v. State Farm Fire and Casualty, denied recovery where the plaintiff sought 

coverage for the defense and indemnity of a lawsuit that alleged plaintiff deprived other 

condominium owners in his building of the use of hot water. 337 Ill. App. 3d 420, 423, 785 N.E. 

2d 951 (Ill. App. Ct. 2003). The policy at issue insured against liability for property damage, 

defined as “physical damage to or destruction of tangible property, including loss of use.” Id. at 

426. The court found that under the Illinois Supreme Court’s decision in Eljer Manufacturing, 

the loss of use of hot water did not constitute “physical” damage, and held that there was no 

coverage for loss of use of tangible property unless physical damage or destruction was also 

shown. Id. at 431. 

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Mutlu is consistent with the opinions of sister courts that have held a mere temporary 

change or limitation on the use of the insured premises or property, unaccompanied by a physical 

alteration of the property, does not constitute physical loss or damage under first-party property 

insurance policies. In Roundabout Theatre Company v. Continental Casualty, for example, the 

Appellate Division of the Supreme Court of New York held there was no “direct physical loss or 

damage” under an insurance policy where a plaintiff theater company lost all access to its 

premises due to a municipal order that closed the street the theater was located on. 302 A.D.2d 1

(N.Y. App. Div. 2002). The order was issued as a result of a construction accident on a nearby 

property, but the premises of the theater did not sustain any physical damage. Id. at 3. The street 

was closed for nearly a month “because of the substantial damage to the area and the danger 

from the partially collapsed scaffold.” Id. As a result, the theater was completely inaccessible to 

the public and forced to cancel all performances. Id. The court rejected the plaintiff’s argument 

that “loss” should be read as including “loss of use” and held the policy unambiguously required 

direct physical damage to the theater itself for coverage. Id. at 7; see also, Newman Myers 

Kreines Gross Harris, P.C. v. Great Northern Ins. Co., 17 F. Supp. 3d 323, 331 (S.D.N.Y. 2014) 

(finding that the words “direct” and “physical” require “actual, demonstrable harm of some form 

to the premises itself, rather than forced closure of the premises for reasons exogenous to the 

premises themselves”) (emph. added).

The Eighth Circuit reached the same conclusion in Pentair v. American Guarantee and 

Liability Insurance, holding the mere loss of use and function of a factory was not a direct 

physical loss, where a factory in Taiwan was shut down due to an earthquake that disabled the 

electrical substation powering the factory. 400 F.3d 613 (8th Cir. 2005). Although the factory 

itself did not suffer any physical harm, it was unable to operate without power and the plaintiff 

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sought to recover losses and extra expenses caused by the shutdown. Id. at 614. The insuring 

agreement provided coverage for “all risk of direct physical loss of or damage to” the property 

described in the agreement. Id. at 614. The court held that even though the factory could not

perform its intended function, the mere loss of use or function did not constitute “direct physical 

loss or damage.” Id. at 615. 

The Eighth Circuit subsequently held a United States Department of Agriculture embargo 

on imports of beef from Canada due to mad cow disease was not a direct physical loss. Source 

Food Tech. v. U.S. Fid. and Guaranty, 465 F.3d 834, 835 (8th Cir. 2006). The plaintiff owned a 

load of beef product that had been manufactured, packaged, and loaded onto a truck by its 

supplier in Canada. Id. Although there was no evidence that the plaintiff’s beef product was 

contaminated by mad cow disease, the plaintiff contended that the loss of use, function, and 

access to it constituted a “direct physical loss” under the terms of its policy. Id. at 835-36. The 

court held that because the property, namely the beef product, was not physically damaged or 

contaminated, the plaintiff had failed to establish a direct physical loss. Id. at 837-38.

Courts have also found that reduced consumer demand resulting from a limitation on an 

insured’s business operations at the insured premises due to a governmental order is not a “direct 

loss.” Brothers Inc. v. Liberty Mut. Fire Ins. Co., 268 A.2d 611 (D.C. 1970). In Brothers, the 

local government imposed a 5:30 p.m. curfew and prohibited the sale of alcoholic beverages in 

response to riots following the assassination of Martin Luther King, Jr. Id. at 611-12. The 

insured’s policy covered “direct” losses to covered property from riot and civil commotion; 

however, the Court held that the policy did not provide coverage for the plaintiff’s claims 

because the “business ‘falloff’” resulting from the inability to conduct business on its premises 

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after 5:30 p.m. was not a “direct” loss by a riot. Id. at 613. Rather, the court found that “[a]t the 

most, the loss incurred here was an indirect, if not remote loss resulting from riots.” Id.

The phrase “direct physical loss” requires more than what Plaintiffs have alleged here: a 

temporary and partial limitation of operations at its premises. Such a claim is insufficient to 

bring it within the express terms of the insurance contract between the parties. “Direct physical 

loss” requires damage to the structural integrity of Plaintiffs’ restaurants. Such is not the case 

here where Plaintiffs’ restaurants have sustained no tangible change in their physical structure or 

composition. Plaintiffs continue to operate their businesses as intended, as a restaurant, with 

their operations temporarily limited to take-out and delivery. Therefore, as a matter of law there 

is no coverage under the Society Policy. 

C. THE PERIOD OF RESTORATION CLAUSE IS FURTHER EVIDENCE THAT 

“PHYSICAL” LOSS OR DAMAGE REQUIRES A TANGIBLE CHANGE IN THE 

PHYSICAL CHARACTERISTICS OF PROPERTY.

The fact that the Business Income Additional Coverage of the Society Policy “will only 

pay for loss of Business Income that [the policyholders] sustain[s] during the ‘period of 

restoration’” further demonstrates the meaning of the requirement of “physical” loss or damage. 

Under the policy definition, the “period of restoration” begins with the “direct physical loss or 

damage,” and ends on the earlier of “the date when the property at the described premises should 

be repaired, rebuilt or replaced with reasonable speed and similar quality” or “when business is 

resumed at a new permanent location.” (SOF at ¶ 18.)

This Court is to construe the policy as a whole and give meaning to each provision. Eljer 

Mfg., Inc., 197 Ill. 2d at 292. The definition of “period of restoration” provides additional 

context to the intended meaning of “physical loss or damage” as used in the Society Policy. 

Read together, it is clear the phrase “physical loss of or damage to” does not encompass a 

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temporary limitation on use, without more. Rather, it refers to a loss or damage that requires the 

repair, rebuilding, or replacement of the property. See, e.g., Newman Myers, 17 F. Supp. 3d at 

332 (explaining that use of “repair” and “replace” in period of restoration clause “contemplates 

physical damage to the insured premises as opposed to loss of use of it”); Roundabout Theatre, 

302 A.D.2d at 8 (same). Providing coverage for a period of restoration where there is no need 

for restoration because the property has not been physically altered would lead to an absurd 

result and must not be adopted. U.S. Fire Ins. Co. v. Hartford Ins. Co., 726 N.E.2d 126, 128 (Ill. 

Ct. App. 2000) (“A strained, forced, unnatural or unreasonable construction [of an insurance 

policy], or one which would lead to an absurd result, must not be adopted.”).

Here, there is no “period of restoration” because there is nothing on the Plaintiffs’ 

premises that needs to be repaired, rebuilt, or replaced and no reason for Plaintiffs to move their 

businesses to a new location. The facts establish the very opposite of this requirement – that 

Plaintiffs continue to use their restaurants to prepare and serve take-out and delivery. (SOF ¶ 

41.) To allow for losses that do not require repair, rebuilding, or replacement would 

impermissibly render the period of restoration provision meaningless. As further demonstrated 

by these additional requirements for the coverage Plaintiffs seek, there is no genuine issue of 

material fact regarding the cause of Plaintiffs’ reduction in business, and the cause of Plaintiffs’

reduction in business does not constitute “physical loss or damage” to the described premises or 

a Covered Cause of Loss as defined in the Society Policy. As a result, summary judgment 

should be entered in Society’s favor on both counts of the Complaint.

CONCLUSION

WHEREFORE, the Defendant, Society Insurance, respectfully requests that this 

Honorable Court enter an order granting summary judgment in its favor and against Plaintiffs as 

to the Plaintiffs’ Complaint in its entirety; declaring there is no coverage for Plaintiffs’ claims 

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under the Society Policy; and granting Society such other and further relief as this Court deems 

just.

Date: May 27, 2020

Thomas B. Underwood (#3122933)

Michael D. Sanders (##6230187)

Michelle A. Miner (#6299524)

Amy E. Frantz (#6312526)

PURCELL & WARDROPE, CHTD.

10 South LaSalle Street, Suite 1200

Chicago, IL 60603

(312) 427-3900

tbu@pw-law.com

msanders@pw-law.com

mminer@pw-law.com

afrantz@pw-law.com

Respectfully submitted,

Society Insurance

By: /s/ Thomas B. Underwood 

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