Exhibit 3
ililililil]il]ilililil]ililtlliltllllilililllilil] illl

Il4Il5469

II{ THE COURT OF COMMOI{ PLEAS

CUYAHOGA COUI\TY, OHIO

SOMCO, LLC DBA J3 CLOTHING COMPANY

Plaintiff

Case No: CV-20-931763

Judge: NANCY A FUERST

LIGHTNING ROD MUTUAL INSURANCE COMPANY

Defendant

JOUR}{AL EI{TRY

PRETRIAL HELD 8I I I /2020

DEFT LIGHTNING ROD MUTUAL INS. CO.'S PRE-ANSWER MOTION TO DISMISS, OR ALTERNATIVELY MOTION FOR

SUMMARY JUDGMENT, FILED 06/05/2020,15 HELD IN ABEYANCE. THE COURT HEREBY CONVERTS TI{E MOTION

TO DISMISS TO A MOTION FOR STIMMARY JUDGMENT. DISCOVERY AND BRIEFING SCHEDULE TO BE SET AT THE

NEXTPRETRIAL.

PLAINTIFF'S MOTIONFOR LEAVE INSTANTER TO FILE SUR-REPLY TO DEFENDANT LIGHTNING ROD MUTUAL

INSURANCE COMPANY'S MOTION TO DISMISS, OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT, FILED

07/20t2020,IS DEMED.

THE COURT NOTES THAT PLTF'S RESPONSE TO DEFT'S 7/23/2020 MOTION TO STAY DISCOVERY, OR,

ALTERNATIVELY, MOTION FOR PROTECTI\'E ORDER IS DUE 8/17/2020. PIIRSUANT TO CIV.R. 6, REPLY BRIEF DUE

8/24/2020.

PRETRIAL SET FOR 09115/2020 AT 03:00 PM. PRETRIAL BY PHONE. COUNSEL TO USE CONFERENCE CALL

INFORMATION PROVIDED BY PLTF'S COUNSEL.

Judge Signature 08112/2020

RECEIVED FOR FILING

08/12¡2020 12:3043

NAILAH K. BYRD, CLERK

08/tr/2020

Page I of I
Complaint
IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY. OHIO

CASE NO.:

JUDGE:

COMPLAINT FOR

DECLARATORY RELIEF

(With Jury Demand)

COMPLAINT AND REQUEST FOR DECLARATORY RELIEF

1. Plaintiff Somco. LLC is a limited liability company organized under Ohio law

with its principal place of business in Moreland Hills in Cuyahoga County. Ohio. Somco. LLC.

dba J3 Clothing Co., is a men's clothing and accessories retailer with onsite tailoring services.

J3's proprietors have over 70 years' collective experience in the men's clothing industry and

serve customers throughout northeast Ohio.

2. Defendant Lightning Rod Mutual Insurance Company (“Lightning Rod”) is a forprofit insurance company organized under Ohio law with its principal place of business in

Wooster. Ohio.

3. At all times relevant. Lightning Rod insured Plaintiff Somco. LLC. dba J3

Clothing Co. under a “Businessowners Package Policy.” Policy Number PACKLBO

3412111888(“the Policy”). A copy of the Policy is attached as Exhibit 1.

SOMCO. LLC dba J3 CLOTHING CO.

34105 Chagrin Blvd.

Moreland Hills. Ohio 44022

Plaintiff

vs.

LIGHTNING ROD MUTUAL INSURANCE

COMPANY

P.O. Box 36

1685 Cleveland Rd.

Wooster. Ohio 44691-0036

Defendant

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
4. Defendant Lightning Rod delivered the Policy to Plaintiff in Cuyahoga County,

the Policy insures Plaintiff's property and business operations and potential liabilities in

connection with Plaintiffs operation of a retail store in Cuyahoga County, and the covered losses

at issue herein were incurred by Plaintiff in Cuyahoga County, making venue appropriate in this

Court.

5. The Policy provides coverage for loss of Business Income (“BI”), Extra Expense

(“EE”) coverage, and coverage for loss due to actions of a Civil Authority.

6. Relevant portions of the Policy provide that Defendant Lightning Rod:

a. “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 the property at the described premises...” and

b. “will pay for Extra Expense you incur during the “period of restoration”

that you would not have incurred had there been no direct physical loss

or damage to property at the described premises.” 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 described premises due to direct physical loss of

or damage to property, other than at the described premises, cause by or

resulting from any Covered Cause of Loss.”

7. While the Policy was in force, Plaintiff sustained, and continues to sustain, a

loss(es) due to the presence of COVID-19 at, in, on, and/or around Plaintiffs premises described

in the Policy.

8. While the Policy was in force, Plaintiff sustained and continues to sustain, a

loss(es) due to the presence of COVID-19 on surfaces, furniture, merchandise, and/or other items

of physical property located at Plaintiffs premises described in the Policy.

9. While the Policy was in force, Plaintiffs sustained, and continues to sustain, a

loss(es) due to the spread of the COVID-19 in the community (the “Pandemic”).

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
10. While the Policy was in force, Plaintiffs sustained, and continue to sustain, a

loss(es) due to the civil authority orders issued by the Governor of Ohio and the Ohio

Department of Health addressing COVID-19 and the Pandemic.

11. COVID-19 is a virus.

12. COVID-19 is a physical substance.

13. COVID-19 is present in viral fluid particles.

14. COVID-19 is a human pathogen.

15. COVID-19 can and does live on and/or remain contagious and active on inert

physical surfaces.

16. COVID-19 can and does live on and/or remain contagious and active on floors,

walls, furniture, desks, tables, chairs, countertops, computer keyboards, touch screens, cardboard

packages, clothing, fixtures, mobile phones, iPads, tablets, laptop computers, and other items of

physical property for a period of time.

17. COVID-19 can be transmitted by way of human contact with surfaces and items

of physical property on which COVID-19 particles are physically present.

18. COVID-19 has been transmitted by way of human contact with surfaces and items

of physical property on which COVID-19 particles are present.

19. COVID-19 can be transmitted by way of human contact with surfaces and items

of physical property located at premises.

20. COVID-19 has been transmitted by way of human contact with surfaces and items

of physical property located at premises in Cuyahoga County.

21. COVID-19 can be transmitted by human to human contact and interaction at

premises.

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
22. COVID-19 has been transmitted by human to human contact and interaction at

premises in Cuyahoga County.

23. COVID-19 can be transmitted through airborne viral particles emitted into the air

at premises.

24. COVID-19 has been transmitted by way of human contact with airborne COVID19 particles emitted into the air at premises in Cuyahoga County.

25. The presence of any COVID-19 particles causes physical harm to property so as

to impair its value, usefulness and/or normal function.

26. The presence of any COVID-19 particles causes physical damage to property so

as to impair its value, usefulness and/or normal function.

27. The presence of COVID-19 renders property physically unsafe and unusable,

resulting in the physical loss of the property.

28. The presence of people infected with or carrying COVID-19 particles renders

property in their immediate vicinity physically unsafe and unusable, resulting in the physical loss

of the property.

29. In response to the physical presence of COVID-19 and the Pandemic, the

Governor of Ohio has issued multiple executive orders pursuant to the authority vested in him by

the Ohio Constitution and the laws of Ohio.

30. In response to the physical presence of COVID-19 and the Pandemic, the Ohio

Department of Health, pursuant to its authority under Ohio law, has issued multiple orders,

including a Stay At Home Order.

31. The term “civil authority” is not defined in the Policy.

32. The State of Ohio is a civil authority as contemplated by the Policy.

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
33. The Ohio Department of Health is a civil authority as contemplated by the Policy.

34. The Governor of the State of Ohio is a civil authority as contemplated by the

Policy.

35. On March 9, 2020, Ohio Governor Mike DeWine issued Executive Order 2020­

01D that declared a state of emergency in response to the physical presence of COVID-19 and

the Pandemic.

36. On March 22, 2020, the Ohio Department of Health issued a Stay At Home

Order, effective March 23, 2020, ordering Ohio residents to stay at home. By way of this order

the State of Ohio ordered all non-essential businesses in Ohio to cease all activities.

37. Plaintiff does not qualify as an Essential Business and was required to cease retail

operations at its premises described in the Policy.

38. The civil authority orders, including, but not limited to the Stay At Home Order,

prohibit access to Plaintiff's premises described in the Policy.

39. The State of Ohio, through the Governor and the Department of Health, have

issued and continue to issue authoritative orders governing Ohioans and Ohio businesses,

including Plaintiff, in response to the physical presence of COVID-19 and the Pandemic, the

effect of which have required and continue to require Plaintiff to cease retail operations at, and

that have prohibited and continue to prohibit access to, the premises described in the Policy.

40. State and local governmental authorities and public health officials around the

country acknowledge that COVID-19 and the Pandemic cause direct physical loss of and damage

to property. For example:

a. The state of Colorado issued a Public Health Order indicating that “COVID19... physically contributes to property loss, contamination, and damage.”

(Emphasis added);

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
b. The City of New York issued an Emergency Executive Order in response to

COVID-19 and the Pandemic, in part “because the 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 Illinois issued an Executive Order describing COVID-19’s

“propensity to physically impact surfaces and personal property”” (Emphasis

added);

h. The State of New Mexico issued a Public Health Order acknowledging the

“threat” COVID-19 “poses” to “property.”” (Emphasis added);

i. 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

j. The City of Los Angeles issued an Order in response to COVID-19 “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).

41. COVID-19 and the Pandemic have caused and continue to cause direct physical

loss of and damage to property.

42. COVID-19 and the Pandemic are physically impacting public and private

property in Ohio and throughout the country.

43. People in Cuyahoga County have been diagnosed with COVID-19.

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
44. People in Cuyahoga County have COVID-19 but have not been diagnosed.

45. People in Cuyahoga County have COVID-19 particles on or about their person

and personal property.

46. Properties throughout Cuyahoga County contain the presence of COVID-19

particles on surfaces, furniture, fixtures, and items of physical property located at those

properties.

47. Properties throughout Cuyahoga County contain the presence of COVID-19

particles in the air.

48. COVID-19 and the Pandemic have caused and continue to cause property loss and

property damage throughout Cuyahoga County.

49. It is probable that COVID-19 particles have been present at Plaintiff's premises

described in the Policy during the Policy period.

50. It is probable that COVID-19 particles have been present on surfaces, furniture,

and other items of physical property located at Plaintiffs premises described in the Policy during

the Policy period.

51. It is probable that airborne COVID-19 particles have been present at Plaintiffs

premises described in the Policy during the Policy period.

52. It is probable that people infected with COVID-19 have been present at Plaintiffs

premises described in the Policy during the Policy period.

53. It is probable that people carrying COVID-19 particles on or about their person

have been present at Plaintiffs premises described in the Policy during the Policy period.

54. It is probable that airborne COVID-19 particles have been present at Plaintiffs’

premises described in the Policy during the Policy period.

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
55. At least one of Plaintiff's customers who was present at Plaintiffs premises

described in the Policy has tested positive for COVID-19. This customer interacted with and

came into close contact with Plaintiffs proprietors, employees and other customers at Plaintiffs

premises described in the Policy. This customer came into contact with surfaces, merchandise

and other items of physical property located at Plaintiffs premises described in the Policy.

56. Plaintiff has sustained direct physical damage to items of physical property

located at its premises described in the Policy as the result of the presence of COVID-19

particles and/or the Pandemic.

57. Plaintiff has suffered the direct physical loss of items of physical property located

at its premises described in the Policy as the result of the presence of COVID-19 particles and/or

the Pandemic and/or the civil authority orders referenced herein.

58. Plaintiff has suffered direct physical damage to its premises described in the

Policy as the result of the presence of COVID-19 particles and/or the Pandemic.

59. Plaintiff has suffered the direct physical loss of its premises described in the

Policy as the result of the presence of COVID-19 particles and/or the Pandemic and/or the civil

authority orders referenced herein.

60. Plaintiff submitted a timely insurance claim(s) to Defendant Lightning Rod.

61. By letter dated the next day, Defendant Lightning Rod advised Plaintiff it had

“completed [its] investigation” and denied Plaintiff coverage under the Policy.

62. There is a dispute about whether Plaintiff is entitled to coverage under the Policy

for its loss(es) sustained and to be sustained in the future. Accordingly, Plaintiff is entitled to

declaratory relief from this Court pursuant to Ohio Civil Rule 57 and R.C. §§ 2721.01 to

2721.15.

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
63. Plaintiff is entitled to and demands a declaration that:

(1) Plaintiff sustained a direct physical loss of and/or or damage to property at its

premises described in the Policy as a result of COVID-19 and/or the Pandemic;

(2) the presence of COVID-19 is a covered cause of loss under the Policy;

(3) the Pandemic is a covered cause of loss under the Policy;

(4) the losses incurred by Plaintiff as the result of the orders issued by the

Governor of Ohio and the Ohio Department of Health are covered losses under the

Policy;

(5) Defendant Lightning Rod has not and cannot prove the application of any

exclusion or limitation to the coverage for Plaintiff's losses alleged herein;

(6) Plaintiff is entitled to coverage for its past and future Business Income loss(es)

and Extra Expense resulting from COVID-19 and/or the Pandemic for the time period set

forth in the Policy;

(7) Plaintiff is entitled to coverage for loss(es) due to the actions of Ohio’s civil

authorities, including the Governor of Ohio and the Ohio Department of Health as set

forth herein;

(8) Plaintiff has coverage for any substantially similar civil authority order in the

future that limits or restricts access to Plaintiff’s premises; and

(8) any other issue that may arise during the course of litigation that is a proper

issue on which to grant declaratory relief.

64. Plaintiff does not seek a determination of the amount of its covered losses. If there

is a dispute between the parties as to the amount of the loss, the Policy provides that such a

dispute should be resolved by Appraisal:

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
Appraisal

If we and you disagree on 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

a judge of a court having jurisdiction. The appraisers will state separately

the 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. (WBP 00

60 12 07 Pages 26-27 of 33)

65. Plaintiff prays for declaratory relief from the Court that Defendant Lightning Rod

must resolve any dispute about the amount of loss via Appraisal. Plaintiff also requests the Court

appoint the umpire if the appraisers cannot agree.

66. Plaintiff prays 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, Plaintiff seeks judgment against the Defendant, Lightning Rod Mutual

Insurance Company, as set forth above, plus interest, costs, and attorney fees as allowed by law.

/s/Nicholas A. DiCello_________

Nicholas A. DiCello (0075745)

Dennis R. Lansdowne (0026036)

Jeremy A. Tor (0091151)

SPANGENBERG, SHIBLEY & LIBER,

LLP

1001 Lakeside Ave., Suite 1700

Cleveland, Ohio 44114

ndicello@spanglaw.com

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP
dlansdowne@spanglaw.com

jtor@spanglaw.com

and

/s/Robert P. Rutter______________

Robert P. Rutter (0021907)

Robert A. Rutter (0081503)

RUTTER & RUSSIN, LLC

One Summit Office Park, Suite 650

4700 Rockside Road

Cleveland, Ohio 44131

(216) 642-1425

brutter@OhioInsuranceLawyer.com

bobbyrutter@OhioInsuranceLawyer.com

JURY DEMAND

Plaintiff hereby requests, pursuant to Civil Rule 38(B), a trial by jury of any of the issues

in the within lawsuit that are properly triable to a jury.

/s/Nicholas A. DiCello_____________

NICHOLAS A. DICELLO

Attorney for Plaintiff

Electronically Filed 04/08/2020 16:02 / / CV 20 931763 / Confirmation Nbr. 1982190 / CLSLP