Exhibit 7
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LORAIN COUNTY

LORAIN COUNTY COURT OF COMMON PLEAS MI SEP 2R P 12 1 2

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LORAIN COUNTY, OHIO

TOM ORLANDO, Clerk

JOURNAL ENTRY

James L. Miraldi, Judge

Date 09/29/20 Case No. 20CV201416

FRANCOIS INC JEREMY A TOR

Plaintiff Plaintiffs Attorney (21 6)696-3232

vs

THE CINCINNATI INSURANCE COMPANY SCOTT STEPHENSON

Defendant Defendant's Attorney Q_

This matter came before the Court upon the motion of Defendant Cincinnati Insurance

Company to dismiss.

Based upon the briefs, the defendant's 12(b)(6) Motion is denied. Before a court may dismiss

an action under Civ. R. 12 (B)(6) for failure to state a claim upon which relief can be granted, it

must appear beyond doubt from the complaint that the plaintiff can prove no set of facts

entitling him to recovery. O'Brien v. University Community Tenants Union, 42 Ohio St. 2d 242,

327 N.E.2d 753 (1975), syllabus. To make this determination, the court is required to interpret

all material allegations in the complaint as true and admitted. Phung v. Waste Management,

Inc, 23 Ohio St.3d 100,102, 491 NE.2d 1114 (1986).

The complaint states claims which arguably fit the terms and conditions of the insurance policy

and therefore the claims and defenses need to be developed with a record. The parties should

proceed with discovery on liability/coverage while the damages issues are bifurcated. Discovery

on damages is held in abeyance until a decision has been made on coverage as the court

anticipates Summary Judgment motions will be filed at the conclusion of discovery on the

liability/coverage issues. A telephone status call is set for October 27, 2020 at 11:30a.m. Plaintiff

shall initiate the telephone conference to all other counsel and then to the court at (440) 328

2393 or (440) 328-2390 at which time the discovery framework and briefing schedule can be

determined by agreement.

James L Miraldi, Judge

t
Complaint
IN THE COURT OF COMMON PLEAS

LORAIN COUNTY, OHIO

FRANCOIS, INC. dba CHEZ FRANCOIS

RESTAURANT

c/o Spangenberg Shibley & Liber, LLP

1001 Lakeside Ave., Suite 1700

Cleveland, OH 44114

Plaintiff

vs. 2c

THE CINCINNATI INSURANCE COMPANY

6200 South Gilmore Road

Fairfield, Ohio 45014-5 I 41

Defendant

CASE NO.:

JUDGE:

JUDGE JAMES MIRALDI

trPLA413T F R DECLARATORY

(With urkemand) 1

1.U1.1 A:111:19

COUlS'I DE COMMON PLMS

Gra.ANDO

REQUEST FOR DECLARATORY RELIEF

1. Plaintiff Francois, Inc. dba Chez Francois Restaurant ("Chez Francois") is a

corporation organized under Ohio law with its principal place of business located in Erie County,

Ohio. Plaintiff owns and operates Chez Francois restaurant.

2. Defendant The Cincinnati Insurance Company ("CIC") is also an Ohio corporation

with its principal place of business in Ohio that sells insurance in Ohio.

3. At all relevant times, CIC insured Chez Francois. A copy of the relevant policy,

number ECP 038 92 72, is attached as Exhibit l ("the Policy").

4. Defendant CIC Policy delivered the Policy to Chez Francois in Lorain County,

through Plaintiffs agent, the Somers Agency, LLC, located in Lorain, Lorain County, Ohio.

Accordingly, because the contract at issue was delivered to Plaintiff in Lorain County, venue in

this Court is appropriate.
5. The Policy provides coverage for Business Income ("BI") loss, Extra Expense

("EE"), and loss due to the actions of Civil Authority.

6. Relevant portions of the Policy provide, subject to other Policy terms, that

Defendant CIC will:

a. "pay for the actual loss of "Business Income" and "Rental Value" you

sustain due to the necessary "suspension" of your "operations" during

the "period of restoration". The "suspension" must be caused by direct

"loss" to property at a "premises" caused by or resulting from any

Covered Cause of Loss," and

b. "pay Extra Expense you sustain during the "period of restoration;" and

c. "pay for the actual loss of "Business Income" you sustain and "Extra

expense you incur caused by action of civil authority that prohibits

access to the "premises" due to direct physical "loss" to property, other

than at the "premises," caused by or resulting from any Covered Cause

of Loss."

7. While the Policy was in force, Chez Francois sustained a loss due to the presence

and spread of SARS-CoV-2 and COVID-19 in the community.

8. While the Policy was in force, Chez Francois sustained a loss due to the civil

authority orders issued by the Governor of Ohio and the Ohio Department of Health addressing

SARS-CoV-2 and the COVID-19 Pandemic.

9. The Insurance Services Office, Inc. ("ISO") publishes policy forms for use

by the insurance industry.

10. The Policy utilizes, in part, policy forms and language published by the ISO, as

reflected by the ISO copyright designation at the bottom of numerous pages of the Policy.

11. Prior to the effective date of the Policy, ISO published and made available for use

a standard virus exclusion form.

2
Policy.

12. Defendant CIC chose not to include the ISO standard virus exclusion form in the

13. Other than reference to a computer virus, the Policy includes no exclusion that

references the word virus.

14. SARS-CoV-2 is a virus.

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

16. SARS-CoV-2 is a human pathogen that causes the disease COVID-19, which can

be lethal.

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

18. SARS-CoV-2 can and does remain capable of being transmitted and active on inert

physical surfaces for a period of time.

19. SARS-CoV-2 can and does remain capable of being transmitted and active on

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

cardboard packages, food items, silverware, plates, serving trays, glasses, straws, menus, pots,

pans, kitchen utensils, faucets, refrigerators, freezers, and other items of property for a period of

time.

20. SARS-CoV-2 can be transmitted by way of human contact with surfaces and items

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

21. SARS-CoV-2 has been transmitted by way of human contact with surfaces and

items of physical property located at premises in Ohio.

22. SARS-CoV-2 can be transmitted by human to human contact and interaction at

premises in Ohio, including places like restaurants.

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23. SARS-CoV-2 has been transmitted by human to human contact and interaction at

premises in Ohio.

24. SARS-CoV-2 can be transmitted through airborne particles emitted into the air at

premises.

25. SARS-CoV-2 has been transmitted by way of human contact with airborne particles

emitted into the air at premises in Ohio.

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

unsafe.

27. The presence of any SARS-CoV-2 particles on physical property impairs its value,

usefulness and/or normal function.

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

property.

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

30. The presence of any SARS-CoV-2 particles causes direct physical damage to

property.

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

unsafe, thereby impairing the premises' value, usefulness and/or normal function.

32. The presence of people infected with or carrying SARS-CoV-2 particles renders

physical property in their vicinity unsafe and unusable, resulting in direct physical loss to that

property.

33. The presence of people infected with or carrying SARS-CoV-2 particles at premises

renders the premises, including property located at that premises, unsafe, resulting in direct

physical loss to the premises and property.

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34. It has been widely reported that SARS-CoV-2 can live on inert surfaces. Exactly

how long it can live on various surfaces is disputed and/or not yet fully known and is the subject

of ongoing research. The same is true of airborne particles containing the virus.

35. In response to SARS-CoV-2 and the COVID-19 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.

36. En response to SARS-CoV-2 and the COVID-19 Pandemic, the Ohio Department

of Health, pursuant to its authority under Ohio law, has issued multiple orders, including a Stay at

Home Order.

37. The term "civil authority" is not defined in the Policy.

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

39. The Ohio Department of Health is a civil authority as contemplated by the Policy.

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

41. In consequence of the danger posed by the coronavirus and the Pandemic, the

Governor of Ohio issued several executive orders. Executive Order 2020-01D, issued on March 9,

2020, declared a state of emergency "for the entire State to protect the well-being of the citizens

of Ohio from the dangerous effects of COVID-I 9 ..." The order declared that:

It may be possible that individuals can get COVID-19 by touching a surface

or object that has virus on it and then touching their own mouth, nose or

eyes.

42. 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 and all non-essential businesses

in Ohio to cease all activities.

43. Chez Francois had to significantly reduce operations.

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44. State and local governmental authorities, and public health officials around the

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

physical loss and damage to property. For example:

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

"COVID-1 9...physically contributes to property loss, contamination,

and damage..." (Emphasis added);

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

response to COVID- l 9 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

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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).

45. SARS-CoV-2, COVID-19, and the COVID-19 Pandemic have caused and continue

to cause direct physical loss and damage to property.

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

public and private property in Ohio and throughout the country.

47. On May 15, 2020, the state of Ohio entered Phase 1 of reopening the state and

permitted non-essential businesses to reopen under strict guidelines.

48. As of May 22, 2020, Ohio had 28,751 confirmed cases of coronavirus. Coronavirus

has killed at least 1,691 people in Ohio as of the date of this filing.

49. People in Ohio have, and have had, COVID-19 disease but have not been

diagnosed.

50. People in Ohio have SARS-CoV-2 particles on or about their person and personal

property.

51. Properties and premises throughout Ohio contain the presence of SARS-CoV-2

particles on surfaces and items of property.

52. It is probable that SARS-CoV-2 particles have been physically present at Chez

Francois's premises described in the Policy during the Policy period.

53. It is probable that SARS-CoV-2 particles have been physically present on surfaces

and items of property located at Chez Francois's premises described in the Policy during the Policy

period.

54. It is probable that airborne SARS-CoV-2 particles have been physically present at

Chez Francois's premises described in the Policy during the Policy period.

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

person have been present at Chez Francois's premises described in the Complaint during the Policy

period.

56. It is probable that airborne SARS-CoV-2 particles have been physically present at

Chez Francois's premises described in the Policy during the Policy period.

57. It is probable that Chez Francois's insured premises have sustained direct physical

loss or damage due to the presence of SARS-CoV-2, and has unquestionably sustained direct

physical loss of and at those locations as the result of the Pandemic and/or civil authority orders

issued by the Governor of Ohio.

58. Chez Francois submitted a timely insurance claim to CIC.

59. CIC issued a reservation of rights letter in which it questioned whether Chez

Francois sustained a loss covered by the Policy. A copy of the denial letter is attached as Exhibit

60. Since there is a dispute about whether or not Chez Francois has coverage under

CIC's policy for the loss sustained and to be sustained in the future, Chez Francois is entitled to

declaratory relief from this Court pursuant to Ohio Civil Rule 57 and R.C. §2721.01 to 2721.15.

61. Chez Francois is entitled to a declaration that (1) Chez Francois sustained direct

physical loss or damage as a result of the coronavirus pandemic; (2) coronavirus is a covered cause

of loss under the Policy; (3) the losses incurred by Chez Francois as the result of the executive

orders issued by the Governor of Ohio are covered losses under the Policy; (4) CIC has not and

cannot prove the application of any exclusion or limitation; (5) Chez Francois is entitled to

coverage for its Business Income loss and Extra Expense resulting from coronavirus; (6) Chez

Francois is entitled to coverage for loss due to the actions of Ohio's civil authorities; (7) Chez

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Francois has coverage for any substantially similar civil authority order in the future that limits or

restricts the public's access to Chez Francois's services; and (8) any other issue that may arise

during the course of litigation that is a proper issue on which to grant declaratory relief.

62. Chez Francois does not seek a determination of its damages resulting from the

coronavirus pandemic. 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:

Appraisal

If we and you disagree on the amount of "Business Income" or Extra

Expense "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 "Business Income" or Extra

Expense "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. (FA 213

0516, pages 4-5 of 9)

63. Plaintiff prays for declaratory relief from the Court that CIC must resolve any

dispute about the amount of loss via Appraisal. Chez Francois also requests the Court to appoint

the umpire if the appraisers cannot agree.

64. Chez Francois 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.

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WHEREFORE, Plaintiff Chez Francois seeks judgment against the defendant, as set forth

above, plus interest, costs, and attorney fees as allowed by law.

Re pe full -ni

Nicholas A. DiCello (0075745)

Dennis R. Lansdowne (0026036)

Jeremy A. Tor (0091151)

SPANGENBERG SHIBLEY & LIBER,

LLP

1001 Lakeside Ave., Suite 1700

Cleveland, Ohio 44114

(216) 696-3232

ndicello@spanglaw.com

dlansdowne@spanglaw.com

jtor@spanglaw.com

Y AM) 

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@OhioInsuranceLavvyer.com

bobbyrutter@OhioInsuranceLawyer.com

Attorneys @r Plaintiff

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.

NICHOLAS A.-

10

CELLO