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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FIRENZE VENTURES LLC, d/b/a FIRENZE–

ITALIAN STREET FOOD, on behalf of itself and all 

others similarly situated,

Plaintiff,

vs.

TWIN CITY FIRE INSURANCE COMPANY, d/b/a 

THE HARTFORD,

Defendant.

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20 C 4226

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Firenze Ventures LLC, a food court vendor in Chicago, alleges in this putative class 

action that Twin City Fire Insurance Company, its insurer, wrongfully denied coverage for losses 

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

Doc. 85. Earlier this year, the court dismissed the initial complaint without prejudice, 

Docs. 83-84 (reported at 532 F. Supp. 3d 607 (N.D. Ill. 2021)), and granted Firenze leave to file 

an amended complaint, which it has done, Doc. 85. As did the initial complaint, the amended 

complaint alleges breach of Twin City’s insurance policy, improper insurance claims practices

under § 155 of the Illinois Insurance Code, 215 ILCS 5/155, and deceptive practices under the 

Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/2. Twin City moves to dismiss the 

amended complaint under Civil Rule 12(b)(6). Doc. 88. The motion is granted, and judgment 

will be entered in Twin City’s favor.

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. 

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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 Firenze’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 Firenze as those 

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

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).

Firenze operates a deli in the food court at the Metra rail station at Ogilvie Transportation 

Center in downtown Chicago. Doc. 85 at ¶ 7. In March 2020, in response to the “widespread 

presence of COVID-19 throughout the Chicago metropolitan area,” the Governor of Illinois 

issued executive orders requiring restaurants in Illinois to suspend in-person dining. Id. at ¶¶ 70-

71, 87; see Doc. 85-1 at pp. 132, 140. The closure orders closed the seating area of the food 

court, Doc. 85 at ¶ 72, and “forced [Firenze] to halt ordinary operations, resulting in substantial 

lost revenues,” id. at ¶ 76. The orders did allow restaurants to prepare and serve food for offpremises consumption by means of pickup and delivery. Id. at ¶¶ 70-71; see Doc. 85-1 at 

pp. 132, 140.

COVID-19 virus particles were present at “[n]umerous business premises in the Chicago 

metropolitan area,” including Metra railcars and stations, the Ogilvie food court, and Firenze’s 

deli. Doc. 85 at ¶¶ 63-67. COVID-19 particles “adhere[] to surfaces and objects, harming and 

physically changing and physically altering those objects by becoming a part of their surface and 

making physical contract with them unsafe for their ordinary and customary use.” Id. at ¶ 55. 

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Specifically, “[t]he presence of COVID-19 transforms everyday surfaces and objects into 

fomites, causing a tangible change of the property into a transmission vehicle for disease.” Id. at 

¶ 54. “‘Fomites’ are physical objects or materials that carry[] and are capable of transmitting 

infectious agents.” Id. at ¶ 50. 

Firenze held a commercial business owner’s policy issued by Twin City, id. at ¶ 17, the 

pertinent terms of which are set forth below. Firenze submitted an insurance claim for the lost 

business income and extra expenses it incurred due to the closure orders, which Twin City 

denied. Id. at ¶¶ 76, 78, 91-93.

Discussion

Firenze seeks a declaratory judgment that the Twin City policy provides coverage and

damages for Twin City’s alleged breach of contract. Id. at ¶¶ 103-109. Firenze also seeks a 

penalty for Twin City’s alleged vexatious and unreasonable denial of coverage under 215 ILCS 

5/155, id. at ¶¶ 110-115, and actual and punitive damages for Twin City’s alleged deceptive 

conduct under ICFA, id. at ¶¶ 116-119.

I. Coverage Claim

The meaning of a written contract “is generally a question of law for the court.” 

Stampley v. Altom Transp., Inc., 958 F.3d 580, 586 (7th Cir. 2020) (alterations omitted). The 

parties agree that Illinois law governs interpretation of the Twin City policy. Doc. 88 at 5 n.3; 

Doc. 90 at 4.

Under Illinois law, an insurance policy, like any contract, “is to be construed as a whole, 

giving effect to every provision, if possible, because it must be assumed that every provision was 

intended to serve a purpose.” Valley Forge Ins. Co. v. Swiderski Elecs., Inc., 860 N.E.2d 307, 

314 (Ill. 2006). “[The court’s] primary function is to ascertain and give effect to the intention of 

the parties, as expressed in the policy language.” Founders Ins. Co. v. Munoz, 930 N.E.2d 999, 

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1003 (Ill. 2010). “Although policy terms that limit an insurer’s liability will be liberally 

construed in favor of coverage, this rule of construction only comes into play when the policy is 

ambiguous.” Rich v. Principal Life Ins. Co., 875 N.E.2d 1082, 1090 (Ill. 2007) (quoting Hobbs 

v. Hartford Ins. Co. of the Midwest, 823 N.E.2d 561, 564 (Ill. 2005)). “While [the court] will not 

strain to find an ambiguity where none exists, neither will [it] adopt an interpretation which rests 

on gossamer distinctions that the average person, for whom the policy is written, cannot be 

expected to understand.” Munoz, 930 N.E.2d at 1004 (internal quotation marks and citation 

omitted).

Firenze asserts coverage under four provisions of the Twin City policy: the “Business 

Income” provision; the “Extended Business Income” provision; the “Extra Expense” provision; 

and the “Civil Authority” provision. Doc. 85 at ¶¶ 40-41; Doc. 90 at 10-16; Doc. 85-1 at 

pp. 37-38, § A.5.o, .p, .q, .r. Twin City contends that none of those provisions applies, Doc. 88 

at 12-16, and adds that even if any does apply, the policy’s Virus Exclusion defeats coverage, id. 

at 6-12; Doc. 85-1 at p. 95, § A.2.i. Because none of the coverage provisions applies, there is no 

need to address the virus exclusion.

A. Business Income Provision

The policy states that Twin City “will pay for direct physical loss of or physical damage 

to Covered Property at [Firenze’s] premises ... caused by or resulting from a Covered Cause of 

Loss.” Doc. 85-1 at p. 28, § A. As noted, Firenze seeks coverage under the policy’s Business 

Income provision, which states in relevant part:

[Twin City] will pay for the actual loss of Business Income [Firenze] 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 physical 

damage to property at [Firenze’s premises] ... caused by or resulting from a 

Covered Cause of Loss.

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Id. at p. 37, § A.5.o(1) (emphasis added). “Business Income,” in turn, is defined as the “[n]et 

[i]ncome ... that would have been earned or incurred if no direct physical loss or physical 

damage had occurred,” plus normal operating expenses that continue to accrue. Id. at p. 37, 

§ A.5.o(4).

Twin City contends that Firenze’s suspension of operations was caused not by physical 

loss or damage to its property, but by the Governor’s statewide closure orders. Doc. 88 at 13-14. 

Firenze agrees that it suspended operations due to the closure orders, Doc. 85 at ¶¶ 76, 88, 91;

Doc. 90 at 8-9, but advances two theories for why the suspension was nonetheless caused by 

direct physical loss of or physical damage to its property. First, Firenze contends that the closure 

orders’ prohibition on in-person dining caused a “direct physical loss of use of [its] facilities.” 

Doc. 90 at 9. Second, Firenze posits that the orders were implemented due to the presence of 

COVID-19 particles at its property, id. at 8, 11, 16, which, according to Firenze, qualifies as 

“physical property damage,” Doc. 85 at ¶ 68; Doc. 90 at 6-8. Neither theory succeeds.

1. Closure Orders Theory

Firenze contends that the Governor’s closure orders “specifically prohibited any use of 

certain property (like seating in dining areas) resulting in the physical loss of”—though not 

“damage to”—“that property for a period of time.” Doc. 90 at 7. Twin City takes the contrary 

view, arguing that closure orders causing the loss of use of covered property “do not trigger 

coverage under policies that require direct physical loss or damage.” Doc. 88 at 13 (citing Chief 

of Staff LLC v. Hiscox Ins. Co., 532 F. Supp. 3d 598, 601-05 (N.D. Ill. 2021)); Doc. 91 at 9-10. 

Twin City’s reading is correct.

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 

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

possession,” “deprivation”). But the noun “loss” in the policy 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 not to any deprivation, but 

rather to a deprivation caused by a tangible or concrete change in the condition or location of the 

thing that is lost. 

The complaint alleges no such deprivation. Instead, it alleges that Firenze’s loss of use of 

its property was due to the Governor’s closure orders. Doc. 85 at ¶¶ 76, 88, 91. Those closure 

orders did not cause a concrete or tangible “loss of” Firenze’s property. See 10A Steven Plitt 

et al., Couch on Insurance § 148:46 (West 3d ed. updated June 2021) (“The requirement that the 

loss be ‘physical,’ given the ordinary definition of that term, is widely held to exclude alleged 

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.”) (footnotes omitted); accord, e.g., 

Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 890-93 (9th Cir. 2021) (California 

law); Santo’s Italian Café LLC v. Acuity Ins. Co., 15 F.4th 398, 400-06 (6th Cir. 2021) (Ohio 

law); Oral Surgeons, P.C. v. Cincinnati Ins. Co., 2 F.4th 1141, 1144-45 (8th Cir. 2021) (Iowa 

law). It follows that Firenze did not suffer the “physical loss” required for coverage under the 

Business Income provision. 

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Another strike against Firenze’s position is that it is 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 [Firenze’s] ‘operations’ during the ‘period of restoration.’” 

Doc. 85-1 at p. 37, § A.5.o(1). As defined by the policy, the “period of restoration” ends when 

(a) “[t]he property at [Firenze’s premises] should be repaired, rebuilt or replaced with reasonable 

speed and similar quality” or (b) “[t]he date when [Firenze’s] business is resumed at a new,

permanent location.” Id. at p. 51, § G.12.b.

If there had been a physical alteration to the condition or location of Firenze’s property—

for example, if a fire destroyed its kitchen, or if a thief stole its sandwich press—one could 

assess when the “period of restoration” would end, for in those instances there would be

something to “repair[], rebuil[d] or replace[].” Ibid. The same cannot be said of the mere loss of 

use of Firenze’s property due to government closure orders. Under Firenze’s theory—that the 

mere loss of use of property at its premises, without any physical alteration to the condition or 

location of that property, is covered—when would the period of restoration end? That question 

is unanswerable, for if there has been no physical alteration to the property’s condition or 

location, there is nothing to “repair[], rebuil[d] or replace[].” Ibid. Nor is there any reason to 

expect that, absent some physical alteration to property at Firenze’s premises, the business would 

have to resume at “a new permanent location.” Ibid. The dissonance between the “period of 

restoration” language, which is critical to application of the Business Income provision, and 

Firenze’s interpretation of the provision confirms that the correct reading is the one requiring

some physical change in the condition or location of property at the insured’s premises. See, 

e.g., Mudpie, 15 F.4th at 892 (California law) (“That this coverage extends only until covered 

property is repaired, rebuilt, or replaced, or the business moves to a new permanent location[,] 

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suggests [that] the Policy contemplates providing coverage only if there are physical alterations 

to the property.”); Chief of Staff, 532 F. Supp. 3d at 602-03 (Connecticut law) (similar); Phila. 

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

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

Policy is physical in nature.”).

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

government closure orders prohibit use of a business’s premises for reasons unconnected to any 

change in the physical condition of the premises or in the physical condition or location of 

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

materially identical provisions in the same manner. See, e.g., Mudpie, 15 F.4th at 892 

(California law) (“Mudpie alleges the Stay at Home Orders temporarily prevented Mudpie from 

operating its store as it intended, and urges us to interpret ‘direct physical loss of or damage to’

to be synonymous with ‘loss of use.’ We cannot endorse Mudpie’s interpretation because 

California courts have carefully distinguished ‘intangible,’ ‘incorporeal,’ and ‘economic’ losses 

from ‘physical’ ones.”); Santo’s Italian Café, 15 F.4th at 402 (Ohio law) (“The Governor’s 

shut-down orders ... did not create a direct physical loss of property or direct physical damage to 

it. They simply prohibited one use of the property—in-person dining—while permitting takeout 

dining and through it all did not remotely cause direct physical damage to the property. ... A loss 

of use simply is not the same as a physical loss.”); Oral Surgeons, 2 F.4th at 1144 (Iowa law) 

(“The policy here clearly requires direct ‘physical loss’ or ‘physical damage’ to trigger business 

interruption and extra expense coverage. Accordingly, there must be some physicality to the loss 

or damage of property—e.g., a physical alteration, physical contamination, or physical 

destruction.”); Dakota Ventures, LLC v. Oregon Mut. Ins. Co., __ F. Supp. 3d __, 2021 WL 

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3572657, at *9 (D. Or. Aug. 11, 2021) (Oregon law) (“[T]he multitude of cases interpreting 

identical and similar language make clear that ‘direct physical loss of or damage to property’ 

does not include a ‘loss of functionality’ of undamaged property for its intended purpose.”), 

appeal docketed, No. 21-35758 (9th Cir. Sept. 9, 2021); Off. Sol. Grp., LLC v. Nat’l Fire Ins. Co. 

of Hartford, __ F. Supp. 3d __, 2021 WL 2403088, at *7 (S.D.N.Y. June 11, 2021) (New York 

law) (“New York [federal district] courts have consistently maintained that ‘direct physical loss 

of or damage’ language requires physical damage to invoke coverage, and that loss of use due to 

the pandemic does not constitute physical damage when the covered property was physically 

unharmed by the virus.”) (collecting cases); Berkseth-Rojas v. Aspen Am. Ins. Co., 513

F. Supp. 3d 724, 732 (N.D. Tex. 2021) (Minnesota law) (“[D]irect physical loss or damage 

requires something more than mere loss of use or function.”); Water Sports Kauai, Inc. v. 

Fireman’s Fund Ins. Co., 499 F. Supp. 3d 670, 677 (N.D. Cal. 2020) (Hawaii law) (“Numerous 

courts have found that materially identical allegations [of loss of use] do not trigger coverage 

under similarly worded policies as a result of government closure orders. The cases consistently 

conclude that there needs to be some physical tangible injury (like a total deprivation of 

property) to support ‘loss of property’ or a physical alteration or active presence of a 

contaminant to support ‘damage to’ property.”) (collecting cases); Real Hosp., LLC v. Travelers 

Cas. Ins. Co. of Am., 499 F. Supp. 3d 288, 295 (S.D. Miss. 2020) (Mississippi law) (“Plaintiff’s 

contention that ‘loss of property’ reasonably includes loss of usability is not sustainable.”).

The court acknowledges that several district court decisions have interpreted similar 

insurance policy provisions to cover, or at least possibly cover, losses due to government 

COVID-19 closure orders. See, e.g., Seifert v. IMT Ins. Co., __ F. Supp. 3d __, 2021 WL 

2228158, at *5 (D. Minn. June 2, 2021) (Minnesota law); Derek Scott Williams PLLC v. 

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Cincinnati Ins. Co., 522 F. Supp. 3d 457, 462-64 (N.D. Ill. 2021) (Texas law); In re Soc’y Ins. 

Co. COVID-19 Bus. Interruption Prot. Ins. Litig., 521 F. Supp. 3d 729, 741-43 (N.D. Ill. 2021)

(Illinois, Wisconsin, Minnesota, and Tennessee law). But disagreement among courts regarding 

the interpretation of a 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) (“[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 a policy provision to be unambiguous even though other courts had interpreted 

similar provisions differently). Those decisions therefore do not preclude the court’s rejection of 

Firenze’s closure orders theory on a Rule 12(b)(6) motion.

2. COVID-19 Particles Theory

Firenze’s second theory is that COVID-19 particles were physically present at, and 

inflicted “physical[] damage[]” on, its property. Doc. 90 at 6-8; Doc. 85 at ¶ 68. In support, 

Firenze contends in its brief that the “substantial risk that the virus was at the restaurant (or 

would be through normal use) resulted in Governor Pritzker imposing executive orders 

prohibiting the direct physical use of indoor dining areas, which resulted in Firenze’s loss of 

income.” Doc. 90 at 8; see also id. at 16 (“[T]he executive orders prohibited Firenze from using 

its insured property because of the reasonable suspicion that the virus had contaminated its 

property.”). Twin City responds that the virus’s presence at Firenze’s property does not qualify

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as “physical damage,” Doc. 88 at 9-10; Doc. 91 at 5-8, and disputes as “disingenuous[]” 

Firenze’s allegation that the Governor’s closure orders were motivated by the possible presence 

of virus at its premises, Doc. 91 at 11-12.

To support its argument that COVID-19 particles inflict physical damage on property, 

Firenze analogizes COVID-19 particles to asbestos fibers, noting that the Supreme Court of 

Illinois held in United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 578 N.E.2d 926, 

931-32 (Ill. 1991), that “[c]ontamination by toxic material is ‘direct physical loss.’” Doc. 90 at 

8. Many decisions have rejected the analogy between COVID-19 particles and asbestos, 

reasoning that any damage inflicted by COVID-19 is temporary rather than the kind of 

permanent damage caused by asbestos. See, e.g., Albuquerque Ambulatory Eye Surgery Ctr. 

LLC v. Transp. Ins. Co., 2021 WL 4746306, at *8-9 (D.N.M. Oct. 12, 2021) (New Mexico law) 

(rejecting the analogy to asbestos, and holding that “allegations of the presence of coronavirus in 

the insured premises, alone, are insufficient to trigger coverage” because “contamination that is 

temporary or that which may be remedied without preventing use of the building has generally 

not been found to qualify as direct physical loss to the insured premises”); Troy Stacy Ents. Inc. 

v. Cincinnati Ins. Co., __ F. Supp. 3d __, 2021 WL 4346688, at *7 (S.D. Ohio Sept. 24, 2021) 

(Minnesota law) (“The presence of SARS-CoV-2 [] is not like asbestos, pesticides, or smoke. 

The latter contaminants may seriously impair or destroy a property’s function and value. The 

virus, by contrast, is easily eliminated with routine cleaning procedures. ... Indeed, the 

Complaint acknowledges that the virus, if not eliminated with cleaning, goes away naturally after 

a period of days.”) (internal quotation marks omitted), appeal docketed, No. 21-4008 (6th Cir. 

Nov. 1, 2021); Park Place Hosp., LLC v. Cont’l Ins. Co., 2021 WL 3549770, at *5 (N.D. Ill. 

Aug. 10, 2021) (Illinois law) (“Unlike COVID-19, which [the insured] acknowledges did not 

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render the premises completely unusable or uninhabitable, the cases finding coverage based on 

the presence of asbestos, mold, or other hazards generally involve persistent physical 

contamination that requires repair or replacement, rather than cleaning and disinfecting, to 

remediate.”) (internal quotation marks omitted); Kim-Chee LLC v. Phila. Indem. Ins. Co., __ 

F. Supp. 3d __, 2021 WL 1600831, at *5-6 (W.D.N.Y. Apr. 23, 2021) (New York law) (citing 

Wilkin, but distinguishing “contamination by a persistent chemical or biological agent” from 

“contamination that is temporary”).

Even assuming that the presence of COVID-19 particles at Firenze’s property caused 

“physical damage,” there is no coverage under the Business Income provision. As noted, the 

provision requires a covered suspension of operations to have been “caused by direct physical 

loss of or physical damage to property at the ‘scheduled premises.’” Doc. 85-1 at p. 37, 

§ A.5.o(1) (emphasis added). But Firenze alleges throughout its amended complaint that it 

suspended operations not due to the presence of COVID-19 at its premises, but due to the 

Governor’s closure orders. E.g., Doc. 85 at ¶ 76 (“As a result of Governor Pritzker’s Closure 

Orders, the Plaintiff was forced to halt ordinary operations, resulting in substantial lost 

revenues.”); see also id. at ¶¶ 2, 5, 88, 91. And despite Firenze’s assertions to the contrary in its 

opposition brief, Doc. 90 at 8, 11, 16, it is implausible that the Governor’s decision to issue the 

closure orders was influenced by the presence of COVID-19 particles at Firenze’s property. 

Indeed, the amended complaint’s allegation that the closure orders “were issued because of the 

widespread presence of COVID-19 throughout the Chicago metropolitan area, resulting in 

contamination by the virus of numerous premises [and] damage to property other than property 

at the Plaintiff’s premises,” Doc. 85 at ¶ 87 (emphasis added), flatly contradicts the key premise 

of Firenze’s COVID-19 particles theory—that the virus’s presence at its own property influenced 

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the issuance of the closure orders. The amended complaint’s allegations that COVID-19 was 

“omnipresen[t]” and that the safety of businesses remaining open in March 2020 depended on 

city- and statewide COVID-19 positivity rates, id. at ¶¶ 48, 61-62, further and fatally undercut 

Firenze’s assertion in its brief that the presence of virus particles specifically at its property 

impacted the imposition of statewide closure orders. See Peterson v. Wexford Health Sources, 

Inc., 986 F.3d 746, 752 n.2 (7th Cir. 2021) (“In opposing a Rule 12(b)(6) motion, [the plaintiff] 

was free to elaborate on his factual allegations so long as the new elaborations are consistent 

with the pleadings.”) (emphasis added) (internal quotation marks omitted).

The only viable reading of the amended complaint, given Firenze’s own allegations, is 

that the possible presence of virus at Firenze’s property did not affect the Governor’s decision to 

issue the closure orders. Because the cause of Firenze’s suspension of operations—the closure 

orders—indisputably was not itself “caused by ... physical damage” to Firenze’s property, 

Firenze’s COVID-19 particles theory fails to make out a coverage claim under the Business

Income provision. Doc. 85-1 at p. 37, § A.5.o(1).

B. Extended Business Income and Extra Expense Provisions

The Extended Business Income provision extends, for up to thirty days, the time for 

which Twin City will pay for “Business Income loss payable under th[e] policy.” Id. at p. 38, 

§ A.5.r(1). This provision serves only to extend the scope or duration of coverage under the 

Business Income provision; it is not an independent trigger for coverage, and Firenze offers no 

argument why it would provide coverage if the Business Income provision does not. 

Accordingly, because the Business Income provision does not provide coverage here, neither

does the Extended Business Income provision.

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The Extra Expense provision states:

[Twin City] will pay reasonable and necessary Extra Expense [Firenze] 

incur[s] during the “period of restoration” that [it] would not have incurred if 

there had been no direct physical loss or physical damage to property at 

[Firenze’s premises] ... caused by or resulting from a Covered Cause of Loss. 

Id. at p. 37, § A.5.p(1) (emphasis added). Even assuming that the presence of COVID-19 

particles at Firenze’s property caused “physical damage” within the meaning of that term, 

Firenze’s claim for coverage under the Extra Expense provision fails. The provision covers only 

expenses that Firenze “would not have incurred if there had been no direct physical loss or 

physical damage to property at [its premises].” Ibid. (emphasis added). But the closure orders 

would have applied to Firenze and caused it to incur the same expenses regardless of the 

presence of virus particles at its property. That is because, as explained above, the only plausible 

reading of the amended complaint is that the possible presence of virus at Firenze’s property did 

not affect the Governor’s decision to issue the closure orders. Accordingly, because Firenze 

would have incurred the same expenses whether or not COVID-19 particles were present at its 

property, its claim under the Extra Expense provision fails.

C. Civil Authority Provision

The Civil Authority provision states:

[Twin City’s] insurance is extended to apply to the actual loss of Business 

Income [Firenze] sustain[s] when access to [its premises] is specifically 

prohibited by order of a civil authority as the direct result of a Covered Cause 

of Loss to property in the immediate area of [its premises].

Id. at p. 38, § A.5.q(1). By its terms, the provision applies only when the following events occur: 

(1) some property in the immediate vicinity of Firenze’s premises suffers some sort of covered 

loss; and (2) some government action prohibits access to Firenze’s premises as a direct result of 

that loss. Ibid.

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Firenze argues that the closure orders’ shuttering of the Ogilvie food court’s seated 

dining area—which Firenze alleges is part of its premises, Doc. 85 at ¶¶ 35-36; Doc. 90 at 15—

satisfies the first condition of the Civil Authority provision. Doc. 90 at 14-15. There is no need 

to decide whether Firenze is correct on this point because it fails to satisfy that provision’s 

second condition.

Firenze does not allege that the closure orders were “the direct result of” COVID-19 

contamination at properties in the “immediate area” of Firenze’s property, as the Civil Authority 

provision requires. Doc. 85-1 at p. 38, § A.5.q(1). To the contrary, the amended complaint 

alleges that the closure orders “were issued because of the widespread presence of COVID-19 

throughout the Chicago metropolitan area.” Doc. 85 at ¶ 87 (emphasis added). That allegation 

fatally undercuts Firenze’s submission that the Governor was reacting to the virus’s presence at a 

particular location—let alone the location surrounding Firenze’s premises—rather than 

implementing prophylactic measures in light of the pandemic as a whole. It necessarily follows 

that the Civil Authority provision provides no coverage here. 

As an analogy, consider a severe blizzard sweeping through Chicago. Cf. Jim Allsopp, 

50th Anniversary of the 1967 Blizzard—Largest Snowfall in Chicago on Record, Nat’l Weather 

Serv., https://www.weather.gov/lot/67blizzard (last visited Dec. 8, 2021) (discussing the blizzard 

of 1967, in which 23 inches of snow and ice fell over Chicago in 24 hours, killing sixty and 

causing an estimated $150 million in business losses). If the weight of ice were to cause a 

building’s roof to collapse and access to the street had to be completely closed to allow debris to 

be cleared, the Civil Authority provision might cover losses suffered by nearby businesses on 

that street. But if the entire city were to shut down prophylactically in anticipation of the 

blizzard, the provision would not apply. The latter scenario mirrors the COVID-19 closure 

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orders in this case. See Dickie Brennan & Co. v. Lexington Ins. Co., 636 F.3d 683, 686 (5th Cir. 

2011) (Louisiana law) (holding that civil authority coverage did not apply in the case of a 

hurricane evacuation order issued as a preventative measure before any property damage 

occurred in the vicinity).

In holding that the Civil Authority provision does not provide coverage to Firenze, this 

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

manner. See, e.g., Swordfish Fitness of Franklin, Inc. v. Markel Ins. Co., 2021 WL 4480509, at 

*6 (M.D. Tenn. Sept. 30, 2021) (Tennessee law) (“Even if Plaintiffs could show physical 

damage, the COVID Orders were not issued as a result of property damage, but to control the 

spread of the virus by limiting human interaction, particularly in large gatherings. Accordingly, 

the Court finds that Plaintiffs have not stated a plausible claim for coverage under the Civil 

Authority provision.”); Deer Mountain Inn LLC v. Union Ins. Co., __ F. Supp. 3d __, 2021 WL 

2076218, at *11 (N.D.N.Y. May 24, 2021) (New York law) (“[A]n order, issued in response to 

the spread of COVID-19 throughout New York State with the goal of limiting future 

transmission of the virus statewide, does not fall within the scope of the Civil Authority 

Provision ... .”), appeal docketed, No. 21-1513 (2d Cir. June 21, 2021); Aggie Invs., L.L.C. v. 

Cont’l Cas. Co., 2021 WL 1550479, at *5 (E.D. Tex. Apr. 20, 2021) (Texas law) (“[T]he civil 

authority actions here were taken to prevent the anticipated threat of COVID-19—not because 

there was structural alterations or property damage at other premises. In this context, the causal 

link between property damage and civil authority action is missing.”) (citations omitted), appeal 

docketed, No. 21-40382 (5th Cir. May 13, 2021); Kamakura, LLC v. Greater New York Mut. Ins. 

Co., 525 F. Supp. 3d 273, 288 (D. Mass. 2021) (Massachusetts law) (holding that “[b]ecause the 

orders were intended to minimize future damage rather than to respond to past damage, the

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complaint fails to state a claim for Civil Authority coverage,” and noting that “[m]ost courts have 

come to the same conclusion when considering claims for civil-authority coverage based on 

comparable COVID-19 orders”) (collecting cases), appeal docketed, No. 21-1259 (1st Cir. Apr. 

13, 2021); Whiskey Flats Inc. v. Axis Ins. Co., 519 F. Supp. 3d 231, 237 (E.D. Pa. 2021) 

(Pennsylvania law) (“[The plaintiff] did not close because of damage to a nearby property or 

because there was some dangerous physical condition at another nearby property. It closed 

because the Shutdown Orders applied to its own operations. Thus, its shutdown and resulting 

losses fall outside the scope of the Civil Authority coverage.”), appeal docketed, No. 21-1294 

(3d Cir. Feb. 18, 2021); O’Brien Sales & Mktg., Inc. v. Transp. Ins. Co., 512 F. Supp. 3d 1019, 

1025 (N.D. Cal. 2021) (California law) (“[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.”); Kirsch v. Aspen Am. Ins. Co., 507 

F. Supp. 3d 835, 843 (E.D. Mich. 2020) (Michigan law) (denying Civil Authority coverage 

because the insured “failed to establish that the COVID-19 executive order was a direct result of 

damage to existing property as opposed to an attempt to curtail the virus’s spread and future 

damage”), appeal docketed, No. 21-1038 (6th Cir. Jan. 14, 2021); Pappy’s Barber Shops, Inc. v. 

Farmers Grp., Inc., 491 F. Supp. 3d 738, 740 (S.D. Cal. 2020) (California law) (“[T]he 

COVID-19 Civil Authority Orders ... were precautionary measures taken by the state to prevent 

the spread of COVID-19 in the future, and therefore not issued as a result of loss or damage to 

property at Plaintiffs’ premises or elsewhere.”) (internal quotation marks omitted). The court 

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

Inc. v. Cincinnati Ins. Co., 478 F. Supp. 3d 794, 803-04 (W.D. Mo. 2020) (Missouri law).

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II. Section 155 Claim

Because Firenze’s claims for coverage under the Twin City policy fail, its claim under 

215 ILCS 5/155 fails as well. “[S]ection 155 provides [] ‘an extracontractual remedy to policyholders whose insurer’s refusal to recognize liability and pay a claim under a policy is vexatious 

and unreasonable.” Phillips, 714 F.3d at 1023 (quoting Cramer v. Ins. Exch. Agency, 675 N.E.2d 

897, 900 (Ill. 1996)). There is no liability under § 155 for vexatiously denying coverage if the 

insured was not entitled to coverage in the first place. See Harper v. Vigilant Ins. Co., 433 F.3d 

521, 530 n.14 (7th Cir. 2005) (“[B]ecause we have found that ... [the insurer] owed no duty to 

defend John ... we need not analyze [the] claim that [the insurer] violated [215 ILCS 5/155], as 

an essential element of that claim is that [the insurer] had a duty to defend John.”); Rhone v. First 

Am. Title Ins. Co., 928 N.E.2d 1185, 1196 (Ill. App. 2010) (“Where the policy is not triggered, 

there can be no finding that the insurer acted vexatiously and unreasonably in denying the 

claim.”).

III. ICFA Claim

Firenze’s ICFA claim alleges that Twin City’s advertising was misleading in light of its 

denial of coverage. Doc. 85 at ¶¶ 116-119. In seeking dismissal of the ICFA claim, Twin City 

argues that “[b]ecause [Firenze’s] business losses are not covered under the unambiguous terms 

of the Policy, all of [its] claims fail.” Doc. 88 at 16. In its opposition brief, Doc. 90, Firenze 

fails to specifically address its ICFA claim, which is consistent with its acknowledgement earlier 

in the suit that all its claims rise or fall with its coverage claim, Doc. 33 at 15. Accordingly, 

Firenze has forfeited any argument that its ICFA claim can survive dismissal if its coverage 

claim does not. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) 

(“We have repeatedly held that a party waives an argument by failing to make it before the 

district court. That is true whether it is an affirmative argument in support of a motion to dismiss 

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or an argument establishing that dismissal is inappropriate.”) (citations omitted); Alioto v. Town 

of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“We apply [the forfeiture] rule ... where a litigant 

effectively abandons the litigation by not responding to alleged deficiencies in a motion to 

dismiss. ... Our system of justice is adversarial, and our judges are busy people. If they are 

given plausible reasons for dismissing a complaint, they are not going to do the plaintiff’s 

research and try to discover whether there might be something to say against the defendants’

reasoning.”) (internal quotation marks omitted); see also Boogaard v. NHL, 891 F.3d 289, 294-

96 (7th Cir. 2018) (affirming the district court’s holding that the plaintiffs forfeited their claims 

by failing to respond to the defendant’s argument under Rule 12(b)(6) that they failed to state a 

claim).

Conclusion

Twin City’s motion to dismiss is granted. Firenze’s opposition brief does not request an 

opportunity to replead in the event Twin City’s motion were to be granted; in any event, Firenze 

has already been given one chance to replead and will not be given a second. Accordingly, the 

dismissal is with prejudice, and judgment will be entered in favor of Twin City. See Haywood v. 

Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th Cir. 2018) (“Nothing ... in any of our 

cases[] suggests that a district court must give leave to amend a complaint where a party does not 

request it ... . To the contrary, we have held that courts are within their discretion to dismiss 

with prejudice where a party does not make such a request ... .”).

December 10, 2021 __________________________________

United States District Judge

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