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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHIEF OF STAFF LLC, on behalf of itself and all others 

similarly situated,

Plaintiff,

vs.

HISCOX INSURANCE COMPANY INC.,

Defendant.

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20 C 3169

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Chief of Staff, a hospitality support agency based in Connecticut, alleges in this putative 

class action that Hiscox Insurance Company, its insurer, wrongfully denied coverage for losses 

that it suffered due to government-ordered shutdowns arising from the COVID-19 pandemic. 

Doc. 28. Hiscox moves to dismiss the complaint under Civil Rule 12(b)(6), arguing that the 

policy does not cover Chief of Staff’s claimed losses. Doc. 31. The motion is granted.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. 

N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider 

“documents attached to the complaint, documents that are critical to the complaint and referred 

to in it, and information that is subject to proper judicial notice,” along with additional facts set 

forth in Chief of Staff’s brief opposing dismissal, so long as those additional facts “are consistent 

with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) 

(internal quotation marks omitted). The facts are set forth as favorably to Chief of Staff as those 

materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the 

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facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United 

States, 881 F.3d 529, 531 (7th Cir. 2018).

In March 2020, near the outset of the COVID-19 pandemic, the Governor of Connecticut 

issued a series of closure orders, one of which prohibited access to all nonessential businesses

throughout the state. Doc. 28 at ¶ 32; see Ned Lamont, Governor, State of Conn., Exec. Order 

No. 7H: Protection of Public Health and Safety During COVID-19 Pandemic and Response—

Restrictions on Workplaces for Non-Essential Business, Coordinated Response Effort (Mar. 20, 

2020), https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/LamontExecutive-Orders/Executive-Order-No-7H.pdf. The orders forced Chief of Staff, located in

Hartford, to cease operations. Doc. 28 at ¶¶ 14-15. Chief of Staff sought to recover its lost 

income under a commercial property insurance policy issued by Hiscox, id. at ¶ 48, the pertinent 

terms of which are set forth below. Hiscox denied coverage. Id. at ¶¶ 48, 50.

Discussion

The parties agree that the Hiscox policy is governed by Connecticut law. Doc. 32 at 6 &

n.2; Doc. 37 at 5-6. Under Connecticut law, “[t]he terms of an insurance policy are to be 

construed according to the general rules of contract construction.” Galgano v. Metro. Prop. & 

Cas. Ins. Co., 838 A.2d 993, 997 (Conn. 2004); see also Hanks v. Powder Ridge Rest. Corp., 885 

A.2d 734, 739 (Conn. 2005) (“[W]here there is definitive contract language, the determination of 

what the parties intended by their contractual commitments is a question of law.”) (internal 

quotation marks omitted). “[T]he determinative question is the intent of the parties, that is, what 

coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed 

by the provisions of the policy.” Karas v. Liberty Ins. Corp., 228 A.3d 1012, 1020 (Conn. 2019) 

(second, third, and fourth alterations in original). A court evaluating the parties’ expectations 

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must be “mindful of the principle that provisions in insurance contracts must be construed as 

laymen would understand [them] and not according to the interpretation of sophisticated 

underwriters.” R.T. Vanderbilt Co. v. Hartford Accident & Indem. Co., 216 A.3d 629, 641

(Conn. 2019) (alteration in original).

Chief of Staff asserts coverage under three of the Hiscox policy’s coverage provisions: 

the “Business Income” provision, the “Excess Expense” provision, and the “Civil Authority”

provision. Doc. 28 at ¶¶ 37-48, 69-115; Doc. 37 at 6-14. Hiscox contends that none of those 

provisions applies, Doc. 32 at 6-13; Doc. 38 at 2-10, but argues that even if one or more do, the 

policy’s virus exclusion defeats coverage, Doc. 32 at 13-15; Doc. 38 at 10-13. Because none of 

the coverage provisions applies, there is no need to address the virus exclusion.

A. Business Income Provision

The Business Income provision states:

[Hiscox] will pay for the actual loss of Business Income [Chief of Staff] 

sustain[s] due to the necessary suspension of [its] “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.

Doc. 32-1 at 14. “Business Income,” in turn, is defined (with irrelevant exceptions) as the net 

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

plus normal operating expenses that continue to accrue. Id. at 15. Even assuming without 

deciding that the Governor’s closure orders effected a “necessary suspension” of Chief of Staff’s 

“operations” during some “period of restoration,” the Business Income provision does not 

provide coverage because that suspension was not “caused by direct physical loss of or damage 

to property at the described premises.” Id. at 14.

Chief of Staff contends that the closure of its business qualifies as a “direct physical loss

of ... property at [its] premises”—though not “damage to” such property—because “it lost the 

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use of its insured property for its intended purpose.” Doc. 37 at 7. Hiscox takes the contrary 

view, contending that the term “direct physical loss” “unambiguously require[s] some physical 

manifestation [of] change” to the property, which is not alleged to have happened here. Doc. 32 

at 7 (alterations in original) (quoting England v. Amica Mut. Ins. Co., 2017 WL 3996394, at *6 

(D. Conn. Sept. 11, 2017)). Hiscox’s reading is the far better one.

True enough, the noun “loss,” standing alone, can refer to “depriv[ation] of ... a 

possession.” Loss, Oxford English Dictionary (2d ed. 1989) (def. 2a); see also Loss, Webster’s 

Third New International Dictionary (1961) (def. 1a) (“the act or fact of losing,” “failure to keep 

possession,” “deprivation”). But the noun “loss” in the Business Income provision is modified 

by the adjective “physical,” which in context means “tangible, concrete.” Physical, Oxford 

English Dictionary (3d ed. updated Mar. 2006) (def. 6); see also Physical, Black’s Law 

Dictionary (11th ed. 2019) (def. 2) (“pertaining to real, tangible objects”); Physical, Webster’s 

Third New International Dictionary, supra (def. 2b) (“of or relating to natural or material things

as opposed to things mental, moral, spiritual, or imaginary”). So “physical loss” refers to a 

deprivation caused by a tangible or concrete change in or to the thing that is lost. But the 

complaint does not allege any such deprivation. Instead, the complaint alleges that Chief of 

Staff’s loss of use of its property was due to the Governor’s closure orders, Doc. 28 at ¶¶ 46-

47—hardly a concrete or tangible “loss of ... property at [its] premises,” Doc. 32-1 at 14.

Pressing the contrary result, Chief of Staff invokes the principle that “a policy should not 

be interpreted so as to render any part of it superfluous.” Lexington Ins. Co. v. Lexington 

Healthcare Grp., Inc., 84 A.3d 1167, 1184 (Conn. 2014) (internal quotation marks omitted). 

Applying that principle—and noting that the Business Income provision covers losses “caused 

by direct physical loss of or damage to property,” Doc. 32-1 at 14 (emphasis added)—Chief of 

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Staff argues that “[i]f a loss could not occur without damage, then the Policy would contain 

surplus language,” which means that “‘direct physical loss’ must mean something other than 

‘direct physical damage.’” Doc. 37 at 7. Among those other meanings of “direct physical loss,” 

Chief of Staff contends, is “loss of use,” for otherwise, all “loss” would be “damage” and there 

would be no need for the provision to mention “loss” at all. Id. at 7-8. 

Chief of Staff is correct that the phrases “direct physical loss” and “direct physical ... 

damage” are best read so as not to completely overlap and thereby render one or the other 

superfluous. But it does not follow that mere loss of use—without any tangible alteration to the

physical condition or location of property at the insured’s premises—falls within the meaning of 

either phrase. Read naturally, the two phrases can be read to exclude loss of use without 

rendering either superfluous. To illustrate, consider a thief who attempts to steal a desktop 

computer. If the thief succeeds, the computer is “physical[ly] los[t]” but not necessarily 

“physical[ly] ... damage[d].” If the thief cannot lift the computer, so instead of stealing it takes a 

hammer to its monitor in frustration, the computer would be “physical[ly] ... damage[d]” but not

“physical[ly] los[t].” Yet if the thief were only to change the password on the system so that 

employees could not log in, there would be neither “physical ... damage” nor “physical loss,” 

though the computer would be unusable for some while. The Business Income provision might 

cover the first two cases, but it does not cover the third.

In fact, it is Chief of Staff’s interpretation that would violate the surplusage-avoidance 

principle by reading the word “physical” out of the Business Income provision. After all, if the 

mere loss of use were covered, what would be the difference between “direct loss” and “direct 

physical loss”? Chief of Staff does not say, and the court cannot tell.

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Chief of Staff’s interpretation is also difficult to square with the Business Income 

provision’s “period of restoration” language. As noted, the provision covers losses “due to the 

necessary suspension of [the business’s] ‘operations’ during the ‘period of restoration.’” 

Doc. 32-1 at 14. The policy defines the “period of restoration” to “end[] on the earlier of: 

(a) [t]he date when the property at the described premises should be repaired, rebuilt or replaced 

with reasonable speed and similar quality; or (b) [t]he date when business is resumed at a new 

permanent location.” Doc. 32-1 at 39. Under Chief of Staff’s theory—that the mere loss of use

of property at the premises, without any physical alteration to the condition or location of that 

property, is covered—when would the period of restoration end? If there has been no physical 

alteration to the condition or location of the property, there is nothing to “repair[], rebuil[d] or 

replace[].” Ibid. Nor is there any reason to expect that, absent physical alteration to “property at 

the [insured’s] premises,” the business would resume at “a new permanent location.” Ibid. The 

uneasy fit between the “period of restoration” language and Chief of Staff’s reading of the 

Business Income provision confirms that the better reading of the provision is the one that 

requires some physical change to the condition or location of property at the insured’s premises. 

Accord Phila. Parking Auth. v. Fed. Ins. Co., 385 F. Supp. 2d 280, 287 (S.D.N.Y. 2005) 

(“‘Rebuild,’ ‘repair’ and ‘replace’ all strongly suggest that the damage contemplated by the 

Policy is physical in nature.”).

Chief of Staff argues in the alternative that the Business Income provision is ambiguous, 

and thus that its meaning should be resolved in Chief of Staff’s favor. Doc. 37 at 12-13; see 

Conn. Ins. Guar. Ass’n v. Fontaine, 900 A.2d 18, 24 (Conn. 2006) (“[O]ur interpretation of 

ambiguous policy language in favor of coverage under the doctrine of contra proferentem has 

become near axiomatic in insurance coverage disputes.”). For the reasons just given, the 

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provision’s language is not ambiguous, so the contra proferentem interpretive principle does not 

come into play. In so holding, the court acknowledges that several district court decisions have 

interpreted similar contractual language to cover losses due to government-imposed COVID-19 

closure or shutdown orders. See, e.g., Derek Scott Williams PLLC v. Cincinnati Ins. Co., 2021 

WL 767617, at *3-5 (N.D. Ill. Feb. 28, 2021); In re Soc’y Ins. Co. COVID-19 Bus. Interruption 

Prot. Ins. Litig., 2021 WL 679109, at *8-10 (N.D. Ill. Feb. 22, 2021); Studio 417, Inc. v. 

Cincinnati Ins. Co., 478 F. Supp. 3d 794, 800-03 (W.D. Mo. 2020). But contrary to Chief of 

Staff’s submission, Doc. 37 at 12-13, disagreement among courts regarding the interpretation of 

an insurance policy provision does not, by itself, render the provision ambiguous. See Erie Ins. 

Grp. v. Sear Corp., 102 F.3d 889, 894 (7th Cir. 1996) (rejecting the argument that an insurance 

policy term was ambiguous “on the basis of conflicting case law” interpreting the term); TMW 

Enters. v. Fed. Ins. Co., 619 F.3d 574, 580 (6th Cir. 2010) (Sutton, J.) (“[A] disagreement among 

three judges about whether a contractual provision is ambiguous does not establish that it is 

ambiguous ... .”); City of Austin v. Decker Coal Co., 701 F.2d 420, 426 n.17 (5th Cir. 1983) 

(“[T]he fact that courts may disagree as to the import of a contract term does not, by that fact 

alone, mean that it is ambiguous.”); Cont’l Ins. Co. v. Bones, 596 N.W.2d 552, 556-58 (Iowa 

1999) (holding an insurance policy provision to be unambiguous even though other courts had 

interpreted similar language differently).

In an effort to create ambiguity, Chief of Staff observes that in an entirely separate 

portion of the policy—the section providing liability coverage, Doc. 32-1 at 40-55—the term 

“[p]roperty damage” is defined 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.” Id. at 54. Chief of Staff argues that in order “[f]or the Policy’s terms to 

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have consistent meaning,” the phrase “physical loss of or damage to property” in the Business 

Income provision “must include situations where property is rendered functionally unusable, 

even if there is no alteration to that property.” Doc. 37 at 13. But the definition of “property 

damage” cited by Chief of Staff, which by its terms applies only to the liability coverage, 

Doc. 32-1 at 52, does not upset the court’s reading of the Business Income provision, which 

appears in the section of the policy providing property coverage, id. at 10-39. As discussed 

above, the conclusion that the Business Income provision is not implicated by losses arising from

the Governor’s closure orders is driven by the word “physical.” Although the policy may cover 

“[l]oss of use of tangible property that is not physically injured” in the liability context, that has 

no bearing on whether “physical loss of ... property” in the Business Income provision requires a 

physical alteration to the property or its location. And it is not at all anomalous that the phrase 

“property damage,” with its explicit and expansive definition in the liability section of the policy, 

would carry a different meaning from the pertinent, differently worded language in the Business 

Income provision in the property section of the policy. See United Am. Ins. Co. v. Wilbracht, 

825 F.2d 1196, 1203 (7th Cir. 1987) (presuming that differently worded provisions in an 

insurance policy carry different meanings).

In sum, the policy’s Business Income provision does not apply where, as here, a 

government closure order prohibits access to a business’s premises for reasons unconnected to 

any change in the physical condition of those premises, or in the physical condition or location of 

property at those premises. In so holding, this court joins the many other courts to have 

interpreted materially identical provisions in the same manner. See, e.g., Am. Food Sys., Inc. v. 

Fireman’s Fund Ins. Co., __ F. Supp. 3d __, 2021 WL 1131640, at *3-5 (D. Mass. Mar. 24, 

2021) (“[C]onstruing the language ‘physical loss of’ to cover the deprivation of a property’s 

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business use absent any tangible damage distorts the plain meaning of the Policy.”); Family 

Tacos, LLC v. Auto Owners Ins. Co., __ F. Supp. 3d __, 2021 WL 615307, at *3-5 (N.D. Ohio 

Feb. 17, 2021) (“As the trigger for coverage, this policy language excludes financial or monetary 

losses resulting from the novel coronavirus, SARS-CoV-2, which occasioned this dispute for the 

simple reason that the virus did not work any perceptible harm to the properties at issue ... .”), 

appeal docketed, No. 21-3224 (6th Cir. Mar. 9, 2021); Berkseth-Rojas v. Aspen Am. Ins. Co., __ 

F. Supp. 3d __, 2021 WL 101479, at *5 (N.D. Tex. Jan. 12, 2021) (“[D]irect physical loss or 

damage requires something more than mere loss of use or function.”); 4431, Inc. v. Cincinnati 

Ins. Cos., __ F. Supp. 3d __, 2020 WL 7075318, at *11 (E.D. Pa. Dec. 3, 2020) (“[F]or Plaintiffs 

to assert an economic loss resulting from their inability to operate their premises as intended 

within the coverage of the Policy’s ‘physical loss’ provision, the loss and the bar to operation 

from which it results must bear a causal relationship to some physical condition of the 

premises.”); Henry’s La. Grill, Inc. v. Allied Ins. Co. of Am., __ F. Supp. 3d __, 2020 WL 

5938755, at *6 (N.D. Ga. Oct. 6, 2020) (“[T]he contract language issue here is not ambiguous, 

and because the Governor’s Executive Order did not create a ‘direct physical loss of’ the 

Plaintiffs’ [premises], the Business Income provision does not apply to the Plaintiffs’ claims.”), 

appeal docketed, No. 20-14156 (11th Cir. Nov. 4, 2020); Mark’s Engine Co. No. 28 Rest., 

LLC v. Travelers Indem. Co. of Conn., __ F. Supp. 3d __, 2020 WL 5938689, at *3 (C.D. Cal. 

Oct. 2, 2020) (“[L]osses from inability to use property do not amount to ‘direct physical loss of 

or damage to property’ within the ordinary and popular meaning of that phrase. Physical loss or 

damage occurs only when property undergoes a distinct, demonstrable, physical alteration.”) 

(some internal quotation marks omitted), appeal docketed sub nom. Marks Engine Co. No. 28 

Rest., LLC v. Travelers Prop. Cas. Co. of Am., No. 20-56031 (9th Cir. Oct. 6, 2020); see also 

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Uncork & Create LLC v. Cincinnati Ins. Co., __ F. Supp. 3d __, 2020 WL 6436948, at *4 (S.D. 

W. Va. Nov. 2, 2020) (“The majority of courts to address the issue ... have found that COVID19 and governmental orders closing businesses to slow the spread of the virus do not cause 

physical damage or physical loss to insured property.”); Docs. 40, 47-48, 50, 56-57 (citing these 

and other similar decisions).

II. Extra Expense Provision

The Extra Expense provision states:

[Hiscox] will pay necessary Extra Expense [Chief of Staff] incur[s] during the 

“period of restoration” that [it] would not have incurred if there had been no 

direct physical loss or damage to property at the described premises. The loss 

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

Doc. 32-1 at 16. The parties agree that, given their similar language, the applicability of the 

Extra Expense provision rises or falls with the applicability of the Business Income provision. 

Doc. 32 at 7 (“Business Income and Extra Expense coverages require ‘direct physical loss of or 

damage to Covered Property.’”); Doc. 37 at 6-7 (“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 loss of, or damage to, property at the described premises.”). Chief of 

Staff offers no argument why the Extra Expense provision would provide coverage if the 

Business Income provision does not. Accordingly, because the Business Income provision is 

inapplicable, the Extra Expense provision is as well.

III. Civil Authority Provision

The Civil Authority provision states:

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:

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(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.

Doc. 32-1 at 16-17. By its plain terms, the provision applies only when the following have 

occurred: (1) there is “damage to property” somewhere “other than,” but within one mile of, the 

insured’s premises; (2) some government action prohibits “[a]ccess to the area immediately 

surrounding th[at] damaged property”; and (3) that government action is taken either “in 

response to dangerous physical conditions resulting from the damage” or “to enable a civil 

authority to have unimpeded access to the damaged property.” Ibid.

Chief of Staff argues that “[f]or the same reasons [it] has suffered ‘physical loss of or 

damage to’ its property as a result of ... 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.” Doc. 37 at 14. Even setting aside the 

fact that Chief of Staff’s premise—that it has suffered “physical loss of or damage to” its own 

property—is wrong, the argument fails. The reason is plain: the Civil Authority provision 

requires that the “other property” have suffered “damage,” and the complaint does not allege, nor 

does Chief of Staff argue, that the closure orders were due to some other property within one 

mile of Chief of Staff’s premises having been damaged by the coronavirus. It necessarily 

follows that the Civil Authority provision provides no coverage here. 

As an analogy, consider a hurricane sweeping through inland Connecticut. Cf. Nancy 

Finlay, Hurricane of 1938: Connecticut’s Worst Disaster, Conn. Hist. (Sept. 21, 2019), 

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https://connecticuthistory.org/hurricane-of-1938-connecticuts-worst-disaster (discussing the 

Hurricane of 1938, which made landfall near New Haven and placed “[p]ortions of Hartford, 

Middletown, and other Connecticut River towns ... completely underwater”). If the hurricane 

were to blow the roof off a building and access to the street had to be completely closed to allow 

the debris to be cleared and the building to be repaired, the Civil Authority provision likely 

would cover losses suffered by nearby businesses on that street. But if the entire city were to 

shut down prophylactically in anticipation of the hurricane—i.e., before there has been any 

damage—the provision would not apply. The latter scenario mirrors the closure orders in this 

case.

That is not to say that the Civil Authority provision necessarily would apply if Chief of 

Staff had alleged that the coronavirus had been detected somewhere within one mile of its 

premises. Undoubtedly, the virus existed within that radius. But even assuming the presence of 

the coronavirus qualifies as “damage,” the complaint does not allege that the Governor’s closure 

orders were “a result of,” or “taken in response to,” Doc. 32-1 at 16-17, the virus’s presence 

within that radius. See Dickie Brennan & Co. v. Lexington Ins. Co., 636 F.3d 683, 686-87 (5th 

Cir. 2011) (“The general rule is that ‘[c]ivil authority coverage is intended to apply to situations 

where access to an insured’s property is prevented or prohibited by an order of civil authority 

issued as a direct result of physical damage to other premises in the proximity of the insured’s 

property.’”) (alteration in original) (second emphasis added) (quoting Clark Schirle, Time 

Element Coverages in Business Interruption Insurance, Brief, Fall 2007, at 32, 38); see also, 

e.g., 10012 Holdings, Inc. v. Sentinel Ins. Co., __ F. Supp. 3d __, 2020 WL 7360252, at *4

(S.D.N.Y. Dec. 15, 2020) (“It is plausible that the risk of COVID-19 being physically present in 

neighboring properties caused state and local authorities to prohibit access to those properties. 

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But the Complaint does not allege that these closures of neighboring properties ‘direct[ly] 

result[ed]’ in closure of Plaintiff’s own premises, as the Civil Authority provisions require.”)

(alterations in original), appeal docketed sub nom. 10012 Holdings, Inc. v. Hartford Fire Ins. 

Co., No. 21-80 (2d Cir. Jan. 14, 2021). Indeed, Chief of Staff’s complaint expressly alleges that 

the closure orders did not result from the virus’s physical presence in any particular location

within or outside that radius. Doc. 28 at ¶ 46 (“[T]he sole and proximate cause of Plaintiff’s and 

other Class members’ losses were the Closure Orders, not because coronavirus was found in or 

on Plaintiff’s or the Class’[s] insured property.”).

Moreover, the complaint does not allege that the closure orders “prohibit[ed]” “[a]ccess 

to the area immediately surrounding” any damaged premises, as required by the Civil Authority 

provision. Doc. 32-1 at 16. That is, the complaint does not allege that the closure order 

prevented people from accessing Hartford’s sidewalks and roads, including those adjacent to any 

damaged premises, even if it did bar people from entering the premises of nonessential 

businesses.

In holding that the Civil Authority provision does not provide coverage to Chief of Staff, 

this court joins the many other courts to have interpreted materially identical provisions in the 

same manner. See, e.g., Bluegrass Oral Health Ctr., PLLC v. Cincinnati Ins. Co., 2021 WL 

1069038, at *4-5 (W.D. Ky. Mar. 18, 2021) (“The ‘Civil Authority’ coverage sought by [the 

insured] requires a claim for a tangible loss to property other than the insured property, which 

[the insured] has failed to identify.”); Kahn v. Pa. Nat’l Mut. Cas. Ins. Co., __ F. Supp. 3d __, 

2021 WL 422607, at *8 (M.D. Pa. Feb. 8, 2021) (“Plaintiffs here do not allege any loss of or 

damage to another property caused by any ‘covered cause of loss’ that triggered an action of civil 

authority.”); O’Brien Sales & Mktg., Inc. v. Transp. Ins. Co., __ F. Supp. 3d __, 2021 WL 

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105772, at *5 (N.D. Cal. Jan. 12, 2021) (“[I]t is apparent from the plain language of the cited 

civil authority orders that such directives were issued to stop the spread of COVID-19 and not as 

a result of any physical loss of or damage to property.”); Gerleman Mgmt., Inc. v. Atl. States Ins. 

Co., __ F. Supp. 3d __, 2020 WL 8093577, at *6 (S.D. Iowa Dec. 11, 2020) (“Plaintiffs have not 

alleged damage to another property.”), appeal docketed, No. 21-1082 (8th Cir. Jan. 12, 2021); 

see also Docs. 40, 47-48, 50, 56-57 (citing these and other similar decisions). And the court 

respectfully disagrees with those courts to have reached the contrary result. See, e.g., Studio 417, 

478 F. Supp. 3d at 803-04. 

Conclusion

Hiscox’s motion to dismiss is granted. Although it is difficult to imagine how Chief of 

Staff might cure the deficiencies in its complaint, it will be given one chance to replead. See 

Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 

2015) (“Ordinarily, ... a plaintiff whose original complaint has been dismissed under Rule 

12(b)(6) should be given at least one opportunity to try to amend ... .”). The operative complaint 

is dismissed without prejudice, and Chief of Staff is given until April 21, 2021, to file a second 

amended complaint. If Chief of Staff does not do so, the dismissal will convert automatically to 

a with-prejudice dismissal and judgment will be entered.

March 31, 2021 ___________________________________

United States District Judge

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