1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Riverside Dental of Rockford, Ltd., )

 )

Plainitff, ) Case No. 20 CV 50284

 )

 vs. )

 )

Cincinnati Insurance Company, ) Judge Philip G. Reinhard

 )

Defendant. )

ORDER

For the reasons stated below, defendant’s motion to dismiss [9] is granted. The 

complaint is dismissed without prejudice. Any amended complaint shall be filed on or before 

February 16, 2021.

STATEMENT-OPINION

Plaintiff, Riverside Dental of Rockford, Ltd., an Illinois corporation with its principal 

place of business in Illinois brought this action in state court against defendant, The Cincinnati 

Insurance Company, an Ohio corporation with its principal place of business in Ohio. Defendant 

filed notice of removal [1] premised on diversity of citizenship jurisdiction. 28 U.S.C. § 

1332(a)(1). The amount in controversy exceeds $75,000. Jurisdiction is proper. The complaint 

seeks a declaratory judgment (Count I), alleges breach of contract (Count II), and asks for

attorney fees, costs, and an amount in excess of the judgment as allowed by 215 ILCS 5/155 

(Count III). Defendant moves to dismiss [9]. 

Plaintiff is a dental office located in the state of Illinois. Plaintiff purchased a 

commercial property insurance policy (“Policy”) from defendant. The Policy includes among its 

forms and endorsements a Building and Personal Property Coverage Form (FM 101 05 16)

(“Property Form”) and a Business Income (And Extra Expense) Coverage Form (FA 213 IL 05 

16) (“Business Income Form”). Both these forms contain “Civil Authority” additional coverage 

provisions obligating defendant, under certain conditions, to pay plaintiff for actual loss of 

“Business Income” and necessary “Extra Expense” “caused by action of civil authority that 

prohibits access to the ‘premises’.”

In March 2020, the Governor of Illinois, in response to the Covid-19 pandemic, issued 

executive orders (“Governor’s Orders”) requiring Illinois dental offices to cease providing 

services identified by the Governor as non-essential. From March 17, 2020 through May 11, 

2020, plaintiff was forced by the Governor’s Orders to postpone all work deemed non-essential. 

Of the services plaintiff provides in its dental practice, those identified by the Governor as nonessential account for approximately 90% of plaintiff’s business. Compliance with the 

Governor’s Orders caused a substantial loss of income to plaintiff. Plaintiff filed a claim under 

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 1 of 8 PageID #:2006
2

the Policy with defendant for its loss of business income caused by complying with the 

Governor’s orders. Defendant denied plaintiff’s claim because it determined that coverage was 

unavailable for the claimed loss. 

Plaintiff then brought this action in Illinois state court. Defendant removed the case to 

this court and now moves to dismiss plaintiff’s complaint, as allowed by Federal Rule of Civil 

Procedure 12(b)(6), for “failure to state a claim upon which relief can be granted.” This case 

presents an interesting and important issue arising from the coronavirus spread worldwide and 

civil authority actions in response. E.g., Oral Surgeons, P.C. v. The Cincinnati Ins. Co., No. 20 

CV 222, 2020 WL 5820552 (S.D. Iowa 9/29/2020); Infinity Exhibits, Inc. v. Certain 

Underwriters at Lloyd’s London, No. 20 CV 1605, 2020 WL 5791583 (M.D. Fla. 9/28/2020);

Douglas Berry, Coivd-19—When Civil Authorities Takeover Are You Covered?, IRMI, 

https://www.irmi.com/articles/expert-commentary/when-civil-authorities-take-over-are-youcovered; Julie Steinberg & Leslie Scism, Insurers Face Big Payouts to U.K. Businesses Over 

Covid Disruptions, Wall Street Journal (Jan.16, 2021), https://www.wsj.com/articles/insurersface-big-payouts-to-u-k-businesses-over-covid-disruptions11610713995?mod=itp_wsj&ru=yahoo.

“A claim is the aggregate of operative facts which give rise to a right enforceable in the 

courts.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir. 2012) (quotation marks and 

citations omitted). The claim plaintiff is asserting is that defendant had a contractual duty under 

the Policy’s Civil Authority coverage provisions to pay plaintiff’s insurance claim for business 

income loss caused by the Governor’s Orders1

; that defendant breached that duty when it denied 

plaintiff’s claim as not being within the coverage provided by the Policy’s Civil Authority 

coverage provisions; and that this breach of contractual duty damaged plaintiff by depriving it of

the benefit of its bargain— receiving payment from defendant to cover the amount of plaintiff’s 

business income loss “caused by action of civil authority” that prohibited access to plaintiff’s 

business premises.

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint 

must meet the Fed. R. Civ. P. 8(a)(2) requirement that it contain a “short and plain statement of 

the claim showing that the pleader is entitled to relief.” If the complaint (1) describes the claim 

in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon 

which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative 

level, the Rule 8(a)(2) requirement is met. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007). On a motion to dismiss, the court must determine whether the complaint contains 

“enough fact to raise a reasonable expectation that discovery will reveal evidence” to support 

liability for the alleged wrongdoing. Id. at 556. A plaintiff “may plead itself out of court by 

pleading facts that establish an impenetrable defense.” Tamayo v. Blagojevich, 526 F.3d 1074, 

1087 (7th Cir. 2008). 

There is no dispute that the complaint gives defendant fair notice of what the claim is and 

the grounds upon which it rests. The dispute is whether the complaint plausibly suggests that 

1

 Plaintiff makes clear in its brief that the only claim pled in its complaint concerns defendant’s duty to plaintiff

under the Civil Authority coverage provisions of the Policy.

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 2 of 8 PageID #:2007
3

plaintiff has a right to relief above the speculative level on that claim. Defendant argues plaintiff

has no right to relief on its claim because, as a matter of law, the complaint shows defendant has 

no contractual duty to pay for any loss plaintiff suffered as a result of plaintiff’s compliance with 

the Governor’s Orders. The complaint includes a copy of the Policy and the Governor’s Orders

as exhibits. 

The Policy’s Business Income Form contains the following relevant provisions: 

SECTION A. COVERAGE

* * *

1. Business Income

a. We will pay for the actual loss of “Business Income” you sustain due to the necessary 

“suspension” of your “operations” during the “period of restoration”. The “suspension” must 

be caused by direct “loss” to property at “premises” which are described in the Declarations 

and for which a “Business Income” Limit of Insurance is shown in the Declarations. The 

“loss” must be caused by or result from a Covered Cause of Loss.

* * *

3.a. Covered Causes of Loss2

Covered Causes of Loss means direct “loss” unless the “loss” is excluded or limited in this 

Coverage Part. Dkt # 10-1. p. 27.

5. Additional Coverages

The Additional Coverages in Paragraphs 5.a through 5.e are included within and not additional 

“Business Income” and Extra Expense Limits of Insurance.

* * *

b. Civil Authority

When a Covered Cause of Loss causes direct damage to property other than Covered Property at 

the “premises”, we will pay for the actual loss of “Business Income” you sustain and necessary 

Extra Expense you sustain caused by action of civil authority that prohibits access to the 

“premises”, provided that both of the following apply:

(1) Access to the area immediately surrounding the damaged property is prohibited by civil 

authority as a result of the damage; 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 

2

 The Business Income Form incorporates the Property Form’s Covered Causes of Loss provision, paragraph 3.a of 

which is set forth here.

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 3 of 8 PageID #:2008
4

action is taken to enable a civil authority to have unimpeded access to the damaged property.

Civil Authority coverage for “Business Income” will begin immediately after the time of the first 

action of civil authority that prohibits access to the “premises” and will apply for a period of up 

to 30 consecutive days from the date on which such coverage began.

Civil Authority coverage for Extra Expense will begin immediately after the time of the first 

action of civil authority that prohibits access to the “premises” and will end 30 consecutive days 

after the date of that action; or when your Civil Authority coverage for “Business income” 

coverage ends, whichever is later.

Dkt # 10-1, p. 116.

* * * 

SECTION F. DEFINITIONS 

1. “Business Income” means the:

a. Net Income (Net profit or Loss before income taxes) that would have been earned or incurred; 

and

b. Continuing normal operating expenses sustained, including payroll.

* * *

6. “Loss” means accidental physical loss or accidental physical damage. 

* * *

10. “Premises” means the Locations and Buildings described in the Declarations.

Dkt # 10-1, pp. 122-23.

The Policy’s Property Form contains the following relevant provisions:

SECTION A. COVERAGE

* * *

5. b. (3) Civil Authority

When a Covered Cause of Loss causes damage to property other than Covered Property at a 

“premises”, we will pay for the actual loss of “Business Income” and necessary Extra Expense 

you sustain caused by action of civil authority that prohibits access to the “premises”, provided 

that both of the following apply:

(a) Access to the area immediately surrounding the damaged property is prohibited by civil 

authority as a result of the damage; and

(b) 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 

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 4 of 8 PageID #:2009
5

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.

Dkt # 10-1, pp. 40-41.

SECTION G. DEFINITIONS

* * *

13. “Premises means the Locations and Buildings described in the Declarations.”3

Dkt # 10-1, P. 61.

Under Illinois law, the construction of the provisions of an insurance policy is a question 

of law. Nicor, Inc. v. Associated Electric and Gas Insurance Services, Ltd., 860 N.E. 2d 280, 285 

(Ill. 2006). The Illinois Supreme Court sets out the process for construing an insurance contract 

as follows:

“A court's primary objective is to ascertain and give effect to the intention of the parties 

whole, taking into account the type of insurance purchased, the nature of the risks 

involved, and the overall purpose of the contract. 

The words of a policy should be accorded their plain and ordinary meaning. Where the 

provisions of a policy are clear and unambiguous, they will be applied as written unless 

doing so would violate public policy. That a term is not defined by the policy does not 

render it ambiguous, nor is a policy term considered ambiguous merely because the 

parties can suggest creative possibilities for its meaning. Rather, ambiguity exists only if 

the term is susceptible to more than one reasonable interpretation. 

Because insurance contracts are issued under given circumstances, they are not to be 

interpreted in a factual vacuum. A policy term that appears unambiguous at first blush 

might not be such when viewed in the context of the particular factual setting in which 

the policy was issued. Governing legal authority must, of course, be taken into account 

as well, for a policy term may be considered unambiguous where it has acquired an 

established legal meaning. Where ambiguity does exist, the policy will be construed 

strictly against the insurer, who drafted the policy and liberally in favor of coverage for 

the insured.” 

Id. at 286 (citations omitted).

An examination of the Civil Authority coverage provisions set out above shows that for 

plaintiff to be covered for loss of Business Income and Extra Expense under those provisions, the 

following conditions must all be met:

3

 Plaintiff’s dental office is the “premises” under this definition and the identical definition in the Business Income 

Form set out above.

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 5 of 8 PageID #:2010
6

(1) a Covered Cause of Loss must have caused damage4 to property other than Covered Property 

at plaintiff’s dental office; 

(2) a civil authority must have taken action that prohibited access to plaintiff’s dental office;

(3) the civil authority’s action must have prohibited access to the area immediately surrounding 

the damaged property as a result of the damage; 

(4) the civil authority must have taken the action in response to dangerous physical conditions 

resulting from the damage or continuation of the Covered Cause of Loss that caused the damage;

and

(5) the action of the civil authority must have caused plaintiff to sustain the actual loss of 

“Business Income” and/or necessary Extra Expense. 

If any one of these conditions is absent, then coverage is unavailable under the Civil 

Authority coverage provisions. Taking the complaint’s allegations as true and its attached 

exhibits as accurate, condition (2) is absent and, therefore, plaintiff has failed to state a claim for 

its loss of Business Income and Extra Expense under the Civil Authority coverage provisions of 

the Policy.5

Civil Authority coverage under the Policy depends on an action by a civil authority that 

“prohibits access” to plaintiff’s dental office. The Policy does not define either “access” or 

“prohibit” so these words are “accorded their plain and ordinary meaning.” Nicor, 860 N.E.2d at 

286. “Access” is defined as “permission, liberty, or ability to enter, approach, or pass to and 

from a place or to approach or communicate with a person or thing.” Meriam-Webster 

Dictionary, “Access”, https://www.merriam-webster.com/dictionary/access. “Prohibit” is 

defined as “to forbid by authority; “to prevent from doing something.” Meriam-Webster 

Dictionary, “Prohibit”, https://www.merriam-webster.com/dictionary/prohibit. Does the 

complaint plausibly suggest that the Governor’s Orders forbade or prevented the ability to 

enter plaintiff’s dental office?

Order 2020-10, issued on March 20, 2020, included dental offices in its definition of 

Health Care and Public Health Operations and allowed individuals to leave their residence to 

work for or obtain services at dental offices. Dkt # 14-4, p.35. Order 2020-19, issued April 1, 

2020, required dental offices to cancel or postpone elective surgeries and procedures. Dkt # 

14-4, pp. 48-49. On May 11, 2020, the Illinois Department of Public Health issued guidance 

allowing dental offices to resume services that previously had been required to be cancelled or 

postponed. Dkt # 14-4, p. 68.

The Governor’s Orders, which are included as exhibits to the complaint, did not forbid 

or prevent the ability to enter plaintiff’s dental office. The Governor’s Orders limited the 

types of services that could be provided at plaintiff’s dental office for several weeks. This 

limitation on services that could be provided caused plaintiff a substantial loss of revenue. 

But the Civil Authority coverage provisions require the civil authority to prohibit access to the 

4 “Direct damage” in the Business Income Form’s provision. 5

 Because resolution of this issue requires dismissal of the complaint, the court will not discuss the other issues 

raised by the parties.

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 6 of 8 PageID #:2011
7

premises for an insured’s Business Income loss to be recoverable. The complaint’s 

allegations do not allege entry to plaintiff’s dental office was prohibited by the Governor’s 

Orders and the text of Governor’s Orders attached to the complaint do not contain language 

prohibiting access to dental offices. On the contrary, the Governor’s Orders allow access to 

dental offices for essential services. Plaintiff’s Business Income loss is not covered under the 

Civil Authority coverage provisions of the policy at issue in this case because the Governor’s 

Orders did not prohibit access to plaintiff’s dental office. 

Plaintiff argues it has alleged the Governor’s Orders “ordered that all non-essential 

businesses must cease” and that “elective procedures must be cancelled or postponed.” Dkt # 

12, p. 15. It contends its complaint directly alleged that the Governor’s Orders “clearly 

prohibited access by ordering non-essential business to cease and by ordering people to stay 

home.” Id. It argues its complaint “specifically alleges that ‘Governor Pritzker’s Order 

restricts access to areas immediately surrounding [plaintiff’s] premises; in fact, it restricts 

access across the entire State.’ (Complaint ¶ 22). The Governor ordered all individuals living 

within the State of Illinois to ‘stay at home or place of residence’ and further ordered that 

‘non-essential business and operations must cease.’ (Complaint, Ex. B, EO 2020-10). The 

Complaint alleges that ‘[plaintiff] was forced by the Shutdown Orders to postpone all work 

deemed non-essential. This ‘non-essential’ work accounts for approximately 90% of 

[plaintiff’s] business.” Id. 

However, as noted above, the Governor’s Orders do not prohibit access to plaintiff’s 

dental office. Order 2020-10 allowed individuals to work and receive services at dental 

offices. Order 2020-19 required elective surgeries and procedures to be cancelled or 

postponed. Emergency procedures were still allowed. Plaintiff alleges approximately 90% of 

its business was “non-essential” which means approximately 10% of its business was not 

required to be cancelled or postponed. While the type of services plaintiff could provide to 

individuals were limited by the Governor’s Orders, access to the premises was not prohibited. 

The Governor’s Orders allowed individuals access to the premises to receive and to provide

essential services. 

Sandy Point Dental, PC v. The Cincinnati Insurance Co., No. 20 CV 2160, 2020 WL 

5630465, * 1 (N.D. Ill. Sept. 21, 2020), is in accord with this analysis. In Sandy Point, the court

analyzed a civil authority provision in light of Illinois coronavirus orders. The Sandy Point court

addressed a civil authority coverage provision which, for civil authority coverage to be triggered, 

required that “orders of civil authority must ‘prohibit access to the ‘premises’ due to direct 

physical ‘loss’ to the property, other than at the ‘premises’, caused by or resulting from a 

Covered Cause of Loss.’” Sandy Point found that “while coronavirus orders have limited 

plaintiff’s operations, no order issued in Illinois prohibits access to plaintiff’s premises. Indeed, 

plaintiff concedes that dental offices were deemed essential businesses for emergency and nonelective work. Consequently, plaintiff has failed to allege that access to its premises was 

prohibited by government order, and its claim for civil authority coverage fails.” Id. at * 3 

(citation omitted). Though it also analyzed other policy language, Sandy Point found (like this 

court finds above) that the failure to allege that access to the premises was prohibited—rather 

than limited—by government order was enough to preclude the plaintiff’s claim for civil 

authority coverage. 

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 7 of 8 PageID #:2012
8

Because there is no coverage under the Civil Authority provisions, there is no claim 

under 215 ILCS 5/155. See Illinois State Bar Ass’n Mutual Ins. Co. v. Cavenagh, 983 N.E.2d 

468, 479 (Ill. App. 2012). “Section 155 allows for ‘an extracontractual remedy’ of attorney fees 

and costs for an insurer’s ‘unreasonable and vexatious’ refusal to comply with its policy 

obligations.” Id. However, where the policy does not cover the claim, a section 155 claim is 

properly dismissed. Id.

Plaintiffs normally should be given leave to amend after dismissal of an initial complaint. 

Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 518 (7th Cir. 2015). If 

plaintiff wishes to file an amended complaint, it may do so on or before February 16, 2021.

For the foregoing reasons, defendant’s motion to dismiss [9] is granted. The complaint is 

dismissed without prejudice. Any amended complaint shall be filed on or before February 16, 

2021.

DATE: 1/19/2021 ENTER:

____________________________________

 United States District Court Judge

Electronic Notices. (LC)

Case: 3:20-cv-50284 Document #: 21 Filed: 01/19/21 Page 8 of 8 PageID #:2013