Exhibit 1 
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

RICHARD KIRSCH, DDS,

Plaintiff, 

v. Case No. 20-11930

ASPEN AMERICAN INSURANCE COMPANY,

Defendant.

_____________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Richard Kirsch, DDS, the owner of a Dearborn Heights dental practice, 

filed a complaint against Defendant Aspen American Insurance on behalf of himself and 

all others similarly situated. Plaintiff alleges that Defendant breached the provisions of 

an insurance contract when Defendant refused to pay Plaintiff’s claim for loss of income 

and extra expenses. The claim stems from a Michigan executive order that suspended 

all non-emergency dental procedures for approximately two months in an attempt to 

slow the spread of Coronavirus Disease (“COVID-19”). Plaintiff seeks damages for 

breach of contract as well as a declaratory judgment that the insurance contract covers 

the loss of income and extra expense incurred by Plaintiff and all others similarly 

situated. Defendant now moves to dismiss the complaint for failure to state a claim on 

which relief can be granted. The motion has been fully briefed. Upon review of the 

parties’ filings, the court concludes that a hearing is not necessary. See E.D. Mich. LR 

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7.1(f)(2). For the reasons stated below, the motion to dismiss will be granted, and the 

complaint will be dismissed with prejudice.

I. BACKGROUND

The following facts are drawn from the complaint and the documents attached 

thereto. Plaintiff Richard Kirsch, DDS, owns a dental practice in Dearborn Heights 

Michigan. (ECF No. 1-2, PageID.22.) Plaintiff purchased a “Building, Blanket Dental 

Practice Personal Property and Income Coverage” policy (“the policy”) from Defendant 

Aspen American Insurance Company that was in effect during the spring of 2020. (Id. at 

22, 24.) 

Like most businesses, Plaintiff’s dental practice was detrimentally affected when 

Michigan’s Governor, Gretchen Whitmer, issued Executive Order 2020-17 (“the

executive order”) on March 23, 2020 aimed at slowing the spread of COVID-19. In what 

amounted to a stay of “excavation” for cavities throughout the state, the executive order 

required that dental facilities suspend all non-essential procedures. (Id. at 23.) As a 

result of this order, Plaintiff alleges that “use of the Dearborn Heights building for dental 

activities was suspended for more than two months” until a subsequent May 26, 2020 

order was issued that allowed the resumption of non-emergency dental procedures. (Id. 

at 24.) The complaint does not allege any of the COVID-19 virus was present in the 

dental practice at the time of, or during, the mandated shutdown. 

Plaintiff sought coverage for a loss of practice income under various provisions of 

the insurance policy issued by Defendant. (Id.) But Defendant denied coverage, and 

Plaintiff filed suit for breach of contract and declaratory relief in Wayne County Circuit 

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Court.1 (See ECF No. 1-2.) As a Texas corporation with a principal place of business in 

Connecticut, Defendant removed the action to federal court based on diversity 

jurisdiction under 28 U.S.C. § 1332 and Defendant alleges that the amount in 

controversy exceeds $75,000. (See ECF No. 1.)

Plaintiff and Defendant agree that their dispute is governed by the terms of a 

valid property insurance policy purchased by Plaintiff. The policy is attached to the initial 

complaint. (See ECF No. 1-2, PageID.33-161.) Based on the language of the policy 

limiting coverage for lost business income resulting from “direct physical damage” to 

property, Defendant moves to dismiss the lawsuit. (See ECF No. 12.)

III. STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for

failure to state a claim upon which relief may be granted. Under the Rule, the court 

construes the complaint in the light most favorable to plaintiff and accepts all wellpleaded factual allegations as true. Barber v. Miller, 809 F.3d 840, 843 (6th Cir. 2015). 

Federal Rule of Civil Procedure 8 requires a plaintiff to present in the complaint 

“a short and plain statement of the claim showing that the pleader is entitled to relief.” A 

complaint must provide sufficient facts to “state a claim to relief that is plausible on its 

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 

possibility that defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of 

1 Plaintiff’s complaint also seeks to establish a class of other similarly situated 

dental practices throughout the state that purchased insurance from Defendant. (ECF 

No. 1-2, PageID.26) The issue of class certification is irrelevant to the present motion. 

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action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 

550 U.S. at 555). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “To state 

a valid claim, a complaint must contain either direct or inferential allegations respecting 

all the material elements to sustain recovery under some viable legal theory.” Boland v. 

Holder, 682 F.3d 531, 534 (6th Cir. 2012) (emphasis removed) (citing League of United 

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)). Determining 

whether a complaint states a plausible claim for relief is “a context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.” 

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

In reviewing a motion to dismiss, the court may consider “any exhibits attached 

[to the complaint], public records, items appearing in the record of the case and exhibits 

attached to defendant’s motion to dismiss so long as they are referred to in the 

Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 

426, 430 (6th Cir. 2008).

IV. DISCUSSION

Both sides agree that the present dispute is essentially limited to the proper 

interpretation of the insurance policy at issue under Michigan law. (ECF No.12, 

PageID.268; ECF No.16, PageID.364.) In Michigan “an insurance contract must be 

enforced in accordance with its terms.” Henderson v. State Farm Fire & Cas. Co., 460 

Mich. 348, 596 N.W.2d 190, 193 (1999). “Terms in an insurance policy must be given 

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their plain meaning and the court cannot create an ambiguity where none exists.” 

Heniser v. Frankenmuth Mut. Ins. Co., 449 Mich. 155, 534 N.W.2d 502, 505 (1995) 

(internal quotation marks omitted). The plain and ordinary meaning of undefined 

contract terms “may be determined by consulting dictionaries.” McGrath v. Allstate Ins. 

Co., 290 Mich. App. 434, 439, 802 N.W.2d 619, 622 (2010) (citations omitted).

Michigan defines “an ambiguity in an insurance policy to include contract 

provisions capable of conflicting interpretations.” Auto Club Ins. Ass'n v. DeLaGarza, 

433 Mich. 208, 444 N.W.2d 803, 805 (1989). Ambiguous terms “are construed against 

its drafter and in favor of coverage.” Id. at 806.

“Michigan courts engage in a two-step analysis when determining coverage 

under an insurance policy: (1) whether the general insuring agreements cover the loss 

and, if so, (2) whether an exclusion negates coverage.” K.V.G. Properties, Inc. v. 

Westfield Ins. Co., 900 F.3d 818, 821 (6th Cir. 2018) (citing Auto-Owners Ins. Co. v. 

Harrington, 455 Mich. 377, 565 N.W.2d 839, 841 (1997)). A policy provision, such as an 

exclusion, is valid “as long as it is clear, unambiguous and not in contravention of public 

policy.” Harrington, 565 N.W.2d at 841 (internal quotation marks omitted).

A. The Property Insurance Policy

In its “Coverage Agreements” (Section I), the policy explains that it covers “all 

direct physical damage to covered property at the premises described on the 

Declarations caused by or resulting from any covered cause of loss.” (ECF No. 1-2, 

PageID.140 (emphasis added).) The policy also contains “limits on insurance” (Section 

II) and exclusions (Section III). In Section I, the policy explains it will cover losses in six 

categories, including: the building, dental practice personal property, practice income, 

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extra expenses, extended practice income, and lost rent. (Id. at 140-43.) The practice 

income provision explains the policy:

will pay for the actual loss of practice income you sustain, or the Valued Daily 

Limit, as described under Limits of Insurance provision III.E.6., due to the 

necessary suspension of your practice during the period of restoration. The 

suspension must be caused by direct physical damage to the building or blanket 

dental practice personal property at the described premises caused by or 

resulting from a covered cause of loss or power failure as described under.

(Id. at 142. (emphasis added).) A “civil authority” clause expands the practice income 

coverage to include:

[an] actual loss of practice income and rents you sustain caused by action of civil

authority that prohibits access to the described premises due to the direct 

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

resulting from any covered cause of loss. . . up to 30 consecutive days. . .

(Id. at 146 (emphasis added)).

Further, the policy’s “extra expense” provision adds coverage for additional “expenses 

necessarily incurred by you during the period of restoration to continue normal services 

and operations which are interrupted due to damage.” (Id. at 143.) But the policy states:

[it] will only pay for extra expenses that you incur within 12 consecutive months 

after the date of direct physical damage or power failure as described under 

Paragraph I.B.8.

(Id.) (emphasis added.)

The final part of the policy (Section IV) offers definitions for different terms 

including “damages” and “covered cause of loss.”

"Damage" means partial or total loss of or damage to your covered property.

. . .

"Covered Causes of Loss" means ALL RISK OF DIRECT PHYSICAL LOSS 

except as excluded or limited in Section II, of this Coverage Part. ALL RISK OF 

DIRECT PHYSICAL LOSS shall also include the following: [Collapse and Water 

Damage] 

(Id. at 158.) The policy contains no specific exclusions or definitions dealing specifically 

with viruses. 

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1. Practice Income Provision 

Defendant moves to dismiss the present action, arguing Plaintiff has failed to 

establish that the executive order resulted in “direct physical damage to property” as the 

policy requires for a claim. (ECF No. 12, PageID.260.) Defendant argues that because

the executive order’s restriction on dental procedures did not cause “tangible or 

discernible property loss or damage,” the policy’s lost practice income provision was not 

implicated. (Id. at 264.)

Plaintiff responds by arguing that “tangible physical damage is not a prerequisite 

to coverage” under the lost income provision. (ECF No. 16, PageID.365.) In support, 

Plaintiff focuses on the policy’s broad definition of “damage” which is defined to include

“partial or total loss of or damage to” covered property. (Id. at 368.) Plaintiff further 

argues that if the phrase “loss of” in the definition is read to require “tangible, physical 

damage” then the word loss would be “strip[ped] of its plain and ordinary meaning” and 

be rendered “superfluous” to the ordinary definition of “damage.” (Id.)

The court concludes that Defendant’s interpretation is largely correct. As a 

leading treatise on property insurance—cited by the Sixth Circuit—explains, usually a 

property insurance “policy specifically ties the insurer's liability to the covered peril 

having some specific effect on the property.” “Physical” loss or damage, 10A Couch on 

Ins. § 148:46. And, “[i]n modern policies. . . this trigger is frequently ‘physical loss or 

damage’ but may be any of several variants focusing on ‘injury,’ ‘damage,’ and the like.”

Id. A policy requirement that a loss be physical “is widely held to exclude alleged losses 

that are intangible or incorporeal and, thereby, to preclude any claim against the 

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property insurer when the insured merely suffers a detrimental economic impact 

unaccompanied by a distinct, demonstrable, physical alteration of the property.” Id.

While there is no published Michigan court decision interpreting the language of 

a standard “direct physical loss or damage” policy provision, the Sixth Circuit, found that 

Michigan courts would likely follow the majority rule and require “tangible damage” for 

coverage under such a policy provision. See Universal Image Prods., Inc. v. Fed. Ins. 

Co., 475 F. App'x 569, 573 (6th Cir. 2012) (citing Acorn Inv. Co. v. Michigan Basic Prop. 

Ins. Ass'n, No. 284234, 2009 WL 2952677, at *1 (Mich. Ct. App. Sept. 15, 2009)) 

(noting that the Michigan Court of Appeals had previously relied on a Texas opinion to 

define the word “direct” and the Texas opinion relied on also found a tangibility 

requirement in the “direct physical loss” provision). In Universal Image Prods., the court 

found that cleaning expenses, moving costs, and lost income due to the discovery of 

mold in the ventilation system of Plaintiff’s leased office space was not covered by a 

property insurance policy that limited coverage to “direct physical loss or damage” Id. at 

571-73. Since “[a]ll remediation efforts were paid for by [plaintiff]’s landlord, and not a 

single piece of [plaintiff]’s physical property was lost or damaged as a result of mold or 

bacterial contamination,” the Sixth Circuit found the claim losses were “not tangible, 

physical losses, but economic losses.” Id. at 573.

In a recent decision in this court involving a chiropractor’s loss of income due to 

the same Michigan COVID-19 executive order, the court found that the order did not 

implicate an insurance policy providing coverage against “accidental direct physical loss 

to Covered Property.” Turek Enterprises, Inc. v. State Farm Mut. Auto. Ins. Co., No. 20-

11655, 2020 WL 5258484, at *5, 8 (E.D. Mich. Sept. 3, 2020) (Ludington, J.) (holding 

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that “‘[a]ccidental direct physical loss to Covered Property’” is an unambiguous term that 

plainly requires Plaintiff to demonstrate some tangible damage to Covered Property. 

“Because Plaintiff has failed to state such damage, the complaint does not allege a 

Covered Cause of Loss.”).

Plaintiff attempts to distinguish both Universal Image Prods. and Turek but its 

arguments are unpersuasive. First, Plaintiff points out that the Sixth Circuit’s reading of 

the “direct physical loss or damage” provision in Universal Image Prods was not 

essential to the court’s ultimate holding. (ECF 16, PageID.367.) It is true that the 

Universal Image Prods. court would have reached the same outcome, “even if Michigan 

were to adopt a more expansive definition of the phrase ‘direct physical loss or 

damage’” because the mold in the case never made the leased space “’uninhabitable’

or substantially ‘unusable.’” Universal Image Prods., Inc., 475 F. App'x at 574. But the 

opinion’s reasoning explaining why Michigan would adopt the majority approach to 

policy interpretation—requiring tangible damage—is still persuasive. As the Turek court

explains: 

Michigan courts determine a word's ordinary meaning by consulting a dictionary. 

Merriam-Webster Dictionary defines “physical” as “having material existence; 

perceptible especially through the senses and subject to the laws of nature.” 

Physical, Merriam-Webster, https://www.merriamwebster.com/dictionary/physical (last visited Aug. 31, 2020). Here, “physical” is 

an adjective modifying “loss,” which is defined as, inter alia, “destruction, ruin,” 

“the act of losing possession,” and “a person or thing or an amount that is lost.” 

Loss, Merriam-Webster, https://www.merriam-webster.com/dictionary/loss (last 

visited Aug. 31, 2020).

Turek Enterprises, 2020 WL 5258484, at *6 (citation omitted). The court sees no reason 

to part company with this interpretation of the phrase “direct physical loss.”2

2 It is true that some courts have adopted a minority position, holding that 

“physical loss” occurs when real property becomes “uninhabitable” or substantially 

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Perhaps anticipating such an outcome, Plaintiff also argues that the policy 

language at issue in the present case is distinguishable from the policies in Universal 

Image Prods. and Turek. (ECF No. 16, PageID.367.) Plaintiff points out that the court in 

Turek found the inclusion of the preposition “to” in the phrase “direct physical loss to 

Covered Property,” as opposed to the preposition “of,” strengthened the case for its

interpretation requiring tangible damage for a valid claim. (Id. (citing Turek Enterprises, 

2020 WL 5258484, at *6).) So, Plaintiff reasons that “[t]he language in Dr. Kirsch’s 

policy covering ‘partial or total loss of or damage to’ the covered property is the exact 

language the Turek court said would establish a plausible claim.” (Id.)

Such a reading of the policy at issue here is misleading. In making his argument 

Plaintiff quotes the policy’s definition which defines “damage” as “partial or total loss of

or damage to your covered property.” (ECF No. 1-2, PageID.158 (emphasis added)).

However, both the practice income and civil authority provisions of the policy expressly 

limit coverage to “direct physical damage to the [covered property].” (Id. at 142, 46.

(emphasis added).) Reading the definition of damage and the applicable policy

“unusable.” See e.g., Port Auth. of New York & New Jersey v. Affiliated FM Ins. Co., 

311 F.3d 226, 236 (3d Cir.2002) (“When the presence of large quantities of asbestos in 

the air of a building is such as to make the structure uninhabitable and unusable, then 

there has been a distinct [physical] loss to its owner.”); Prudential Prop. & Cas. Co. v. 

Lillard–Roberts, CV–01–1362–ST, 2002 WL 31495830, at *9 (D.Or. June 18, 2002) 

(holding a “direct physical loss” is possible when property is “rendered uninhabitable by 

mold”); Studio 417, Inc. v. Cincinnati Ins. Co., No. 20-CV-03127-SRB, 2020 WL

4692385, at *4 (W.D. Mo. Aug. 12, 2020) (denying a motion to dismiss because 

“COVID-19 allegedly attached to and deprived Plaintiffs of their property, making it 

‘unsafe and unusable’”). The court sees no indication that Michigan court courts would 

adopt this minority view, in fact, the first Michigan court to consider this issue (albeit in 

an unpublished Circuit Court ruling) also found that tangible damage was required 

under the plain meaning of such an insurance provision and it held that a COVID-19 

damage claim would fail. See Management Co. LLC v. Michigan Ins. Co., No. 20-258-

CB, 2020 WL 4561979, at *1 (Mich. Cir. Ct. July 21, 2020).

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provisions together it becomes apparent that the coverage provided by the policy is at 

least as narrow as the “direct physical loss to Covered Property” limitation in Turek. See

2020 WL 5258484, at *6. While the policy adopts a rather broad definition of the word 

“damage” that definition is further cabined when the word “damage” is used with the 

adverbs “direct” and “physical” as well as the preposition “to.” Like Turek, these 

additional words act to define the subset of damage covered by the policy. The ordinary 

meaning of these words makes clear that a mere loss of use is insufficient to implicate 

coverage—just as the same adjectives and preposition made clear in Turek that the 

policy only covered a subset of possible losses.3 See id. Therefore, the court finds that 

coverage under the policy’s practice income provision is limited to instances where

tangible damage to physical property has occurred. 

Because Plaintiff has not “alleged that COVID-19 particles attached to and 

damaged their property” Plaintiff has not even attempted to establish that COVID-19 

caused tangible, physical damage to the property itself. See Turek Enterprises, 2020 

WL 5258484, at *7 (E.D. Mich. Sept. 3, 2020) (quoting Studio 417, Inc. v. Cincinnati Ins. 

Co., No. 20-CV-03127-SRB, 2020 WL 4692385, at *6 (W.D. Mo. Aug. 12, 2020)). Like 

3 The court also notes that the definition of “damage” contained in the policy is not 

quite as broad as Plaintiff contends. The definition does NOT cover all losses of or 

damage to your covered property but instead includes only “partial or total loss of or 

damage to your covered property.” (ECF No. 1-2, PageID.158 (emphasis added).) 

Black’s Law Dictionary makes clear that both “partial loss” and “total loss” are phrases 

that have a distinct meaning in a legal context apart from the broader definition of “loss”. 

See LOSS, Black's Law Dictionary (11th ed. 2019) (separately defining partial loss as 

“[a] loss of part of the insured property; damage not amounting to a total loss,” and, a 

total loss as “[t]he complete destruction of insured property so that nothing of value

remains and the subject matter no longer exists in its original form.”) The most 

straightforward reading of the provision therefore is that the phrases partial and total 

loss are included in the definition to merely make clear that the physical property is 

covered both when it is completely destroyed and when it is only partially damaged.

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other viruses, COVID-19 injures people but does not seem to cause any lasting damage 

to physical property. Because Plaintiff’s claim, as pled, alleges only a temporary loss of 

use of Plaintiff’s property, the tangibility requirement implicit in the policy forecloses a 

claim under the practice income provision.

2. Civil Authority Provision

Likewise, the civil authority provision which provides coverage when a civil 

authority “prohibits access to the described premises due to the direct physical damage 

to property, other than at the described premises,” (ECF No. 1-2, PageID.146

(emphasis added)), is not implicated by the executive order. The factual allegations in 

the complaint allege no tangible damage to other’s property that would support a claim 

under the provision’s language. (See ECF No. 1-2, PageID.23-5.) 

Even if Plaintiff were able to point to direct physical damage to other property due 

to COVID-19, he has also failed to state a nexus between prior property damage and 

the executive order. Defendant cites a number of cases indicating that preemptive 

government shutdown orders to protect property do not establish a causal link between 

the damage to property and order barring access.4 See e.g. United Air Lines, Inc. v. Ins. 

Co. of State of PA, 439 F.3d 128, 134 (2d Cir. 2006) (declining to provide United 

coverage under a civil authority insurance provision for lost earnings stemming from the 

shutdown of Ronald Reagan Washington National Airport after Sept. 11th, 2001

because “the government's subsequent decision to halt operations at the Airport 

4 It is also not clear that that the executive order actually “prohibit[ed] access” 

access to Plaintiff’s dental office. Afterall, the order stated that Plaintiff was free to 

continue conducting emergency dental procedures at the facility. (ECF No. 1-2, 

PageID.23.)

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indefinitely was based on fears of future attacks” not due to existing damage to the 

Pentagon.); Paradies Shops, Inc. v. Hartford Fire Ins. Co., No. 1:03-CV-3154-JEC, 2004 

WL 5704715, at *7 (N.D. Ga. Dec. 15, 2004) (holding that civil authority insurance

coverage was unavailable for airport shops after the FAA shutdown flights on Sept. 

11th, 2001 because the order was “designed to prevent, protect against, or avoid future 

damage [and] is not a ‘direct result; of already existing property loss or damage.”); Syufy 

Enterprises v. Home Ins. Co. of Indiana, No. 94-0756 FMS, 1995 WL 129229, at *2 

(N.D. Cal. Mar. 21, 1995) (denying “civil authority” insurance coverage for a movie 

theater closed by a curfew designed to “prevent ‘potential’ looting” because the 

“requisite causal link between damage to adjacent property and denial of access to a 

Syufy theater is absent”). In the present action, Plaintiff does not directly respond to, or 

attempt to distinguish, these precedents. (See ECF 16.) Plaintiff has 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.

3. Extra Expense Provision

Plaintiff seeks coverage under the policy’s extra expense provision. (ECF No. 1-

2, PageID.25.) Defendant responds by arguing that the extra expense provision “is also 

limited to losses caused by direct physical damage” because “Plaintiff has alleged no 

direct physical damage and no property in need of restoration” his losses fall outside the 

policy’s coverage. In his response to the motion to dismiss, Plaintiff concedes that 

coverage under this clause likely hinges on whether the policy requires “tangible 

damage.” (ECF No.16, PageID.375.) Since the court has already found that the identical 

“direct physical damage” language in the practice income and civil authority provisions 

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require a Plaintiff to allege tangible property damage, the court must agree with 

Defendant’s conclusion. (See ECF No. 12, PageID.279.) As explained above, 

Defendant has not alleged that COVID-19 was present in his dental office during the 

period in question. Therefore, based on the provision’s ordinary meaning, extra 

expenses incurred due to the executive order are not covered by the policy.

B. Ordinance of Law Policy Endorsement

Plaintiff purchased additional "Ordinance or Law Coverage Extension" coverage. 

The endorsement provides increased coverage for “Business Income and Extra 

Expense” during a period of restoration. (ECF No. 1-2, PageID.63.) However, the 

coverage is only available when enforcement of an ordinance: “1) Regulates the 

construction, repair or replacement of any property; 2) Requires the tearing down or 

replacement of any parts of property not damaged by a covered cause of loss; and 3) Is 

in force at the time of loss.” (Id. at 63-64.) While Plaintiff’s complaint cites this provision 

as a source of extra coverage, (Id. at 25), Defendant argues that the complaint “fails to 

allege any facts that satisfy condition[s]” (1) and (2). (ECF No. 12, PageID.282.) Since 

the conjunction “and” is used, the court concludes that the Ordinance of Law 

endorsement requires all three of the above conditions be satisfied for the enhanced 

coverage to apply. Because the complaint does not allege specific damage to the facility 

requiring repair, this policy endorsement is not implicated. Plaintiff appears to concede 

as much as its response to the motion to dismiss does not address Defendant’s 

argument against coverage under the ordinance or law enhancement. 

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V. CONCLUSION

For the reasons explained above, the court finds that the property insurance 

policy purchased by Plaintiff Kirsch does not apply to lost practice income and related 

expenses caused by a temporary Michigan executive order prohibiting non-essential 

dental procedures. Accordingly,

IT IS ORDERED that Defendant’s motion to dismiss (ECF No. 12) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's complaint, (ECF No. 1-2), is 

DISMISSED WITH PREJUDICE. 

s/Robert H. Cleland / 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: December 14, 2020

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

on this date, December 14, 2020, by electronic and/or ordinary mail. 

s/Lisa Wagner / 

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\AAB\Opinions and Orders\Civil\20-11930.KIRSCH.MTD.AAB.RHC.docx

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