2023 IL App (1st) 220905-U

No. 1-22-0905 

Order filed February 22, 2023 

Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

RAGAN CONSULTING GROUP LLC,

Plaintiff-Appellant, 

 v. 

CONTINENTAL CASUALTY COMPANY, 

Defendant-Appellee. 

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Appeal from the

Circuit Court of

Cook County 

No. 21 CH 3823

Honorable 

Thaddeus L. Wilson, 

Judge presiding.

JUSTICE BURKE delivered the judgment of the court.

 Presiding Justice McBride and Justice Reyes concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the circuit court’s grant of defendant’s motion to dismiss where 

plaintiff’s alleged business income losses and necessary extra expenses resulting 

from the COVID-19 Virus and related government orders were not covered by the 

commercial property insurance policy issued by defendant.

¶ 2 After plaintiff Ragan Consulting Group LLC, a management consulting firm, incurred 

various alleged business income losses and necessary extra expenses due to the COVID-19 Virus 

and related government orders, it sought coverage under its commercial property insurance policy 
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issued by defendant Continental Casualty Company.

1

 Continental denied coverage under the 

policy, and as a result, Ragan filed a complaint for declaratory relief and breach of contract. On 

Continental’s motion, the circuit court dismissed Ragan’s complaint with prejudice. Ragan now 

appeals that dismissal and contends that the insurance policy covered its alleged business income 

losses and necessary extra expenses due to the COVID-19 Virus and related government orders. 

Ragan therefore argues that the circuit court erred by granting Continental’s motion to dismiss. 

For the reasons that follow, we affirm the circuit court’s judgment. 

¶ 3 I. BACKGROUND 

¶ 4 A. The Insurance Policy

¶ 5 Ragan is a Chicago-based company that provides management consulting to various 

entities. Ragan purchased a commercial property insurance policy for its business from Continental 

that became effective on February 24, 2020, and ended on March 4, 2021. The policy contained 

various coverages for business income losses and necessary extra expenses to Ragan’s property 

located at its office in downtown Chicago. Under one part of the policy, the “Business Income

Coverage” provision, Continental agreed to: 

“pay for the actual loss of Business Income [Ragan] sustain[ed] due to the necessary 

‘suspension’ of [its] ‘operations’ during the ‘period of restoration.’ The 

‘suspension’ must be caused by direct physical loss of or damage to property at the 

described premises. The loss or damage must be caused by or result from a Covered 

Cause of Loss.”

1 SARS-CoV-2 is the virus that causes the disease Covid-19. See Firebirds International, LLC v. 

Zurich American Insurance Co., 2022 IL App (1st) 210558, ¶ 5. For simplicity sake, we will refer to the 

virus as the “COVID-19 Virus.”
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A “period of restoration” was defined as “the period of time that *** [b]egins with the date of direct 

physical loss or damage caused by or resulting from any Covered Cause of Loss at the described 

premises,” and ends the earlier of when the lost or damaged property “should be repaired, rebuilt or 

replaced with reasonable speed and similar quality” or “when business is resumed at a new permanent 

location.” Under the policy, a “Covered Cause of Loss” included “risks of direct physical loss” 

unless a limitation or exclusion applied. Additionally, under another part of the policy, the “Extra 

Expense Coverage” provision, Ragan could recover “reasonable and necessary expenses [it] 

incur[red] during the ‘period of restoration’ that [it] would not have incurred if there had been no 

direct physical loss of or damage to property caused by or resulting from a Covered Cause of 

Loss.” Lastly, as relevant to this appeal, the policy contained “Civil Authority Coverage,” which 

covered the: 

“actual loss of Business Income [Ragan] sustain[ed] and reasonable and necessary 

Extra Expense [it] incur[red] caused by action of civil authority that prohibit[ed] 

access to the described premises. The civil authority action must be due to direct 

physical loss of or damage to property at locations, other than described premises, 

caused by or resulting from a Covered Cause of Loss.”

¶ 6 B. The COVID-19 Virus and the Instant Litigation

¶ 7 In late January 2020, the World Health Organization declared the COVID-19 Virus a 

public health emergency of international concern. See Statement on the Second Meeting of the 

International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel 

Coronavirus (2019-nCoV), https://www.who.int/news/item/30-01-2020-statement-on-thesecond-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regardingthe-outbreak-of-novel-coronavirus-(2019-ncov). Two months later, as the COVID-19 Virus began
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to spread in Illinois, Governor JB Pritzker issued various executive orders and proclamations in an 

effort to curb the spread of the virus. Initially, Governor Pritzker declared the entire state of Illinois 

a disaster area. Proclamation No. 2020-38, 44 Ill. Reg. 4744 (Mar. 9, 2020), 

https://www2.illinois.gov/sites/gov/Documents/CoronavirusDisasterProc-3-12-2020.pdf. 

Subsequent to this disaster proclamation, Governor Pritzker issued an executive order that closed 

all public and private schools in Illinois serving pre-kindergarten through 12th grade, another 

executive order that prohibited large gatherings in private or public settings, another executive 

order that included a stay-at-home order for all nonessential activities and ordered all nonessential 

businesses to temporarily cease operation, as well as other executive orders having similar effects. 

See Exec. Order No. 2020-4, 44 Ill. Reg. 5531 (Mar. 13, 2020), 

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number5.2020.html; Exec. Order No. 2020-5, 44 Ill. Reg. 5533 (Mar. 13, 2020), 

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number5.2020.html; Exec. Order No. 2020-7, 44 Ill. Reg. 5536 (Mar. 16, 2020), 

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number7.2020.html; Exec. Order No. 2020-10, 44 Ill. Reg. 5857 (Mar. 20, 2020), 

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number10.2020.html. 

¶ 8 Due to the above-referenced executive orders and others, Ragan closed its business on 

March 13, 2020. Ragan’s business subsequently suffered due to the COVID-19 pandemic and 

related orders. In April 2020, because Ragan allegedly sustained a significant loss of business 

income and incurred various necessary extra expenses due to the COVID-19 pandemic and various 

government orders, Ragan provided notice to Continental of a claim under its commercial property 
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insurance policy. The following month, Continental responded to Ragan’s notice of claim and 

noted that, despite Ragan’s assertions, Ragan had not reported any direct physical loss of, or 

damage to, its property. As a result, Continental denied coverage under the policy. 

¶ 9 In August 2021, as a result of this denial, Ragan filed the instant complaint against 

Continental in the circuit court seeking declaratory relief and damages for breach of contract. In 

the complaint, Ragan highlighted that the policy did not define the phrase “ ‘direct physical loss 

of or damage.’ ” But Ragan asserted that direct physical loss of, or damage to, property occurred 

when a covered cause of loss threatened or rendered property unusable or unsuitable for its 

intended purpose or unsafe for ordinary human occupancy or continued use. And based on this 

definition, Ragan posited that the shutdown orders caused direct physical loss of, or damage to, its 

property to invoke coverage under the Business Income Coverage and Extra Expense Coverage 

provisions of the policy as well as to other properties to invoke coverage under the Civil Authority 

Coverage provision of the policy. Alternatively, Ragan posited that the ubiquitous nature of the 

COVID-19 Virus caused direct physical loss of, or damage to, its property to invoke coverage 

under the Business Income Coverage and Extra Expense Coverage provisions of the policy as well 

as to other properties to invoke coverage under the Civil Authority Coverage provision of the 

policy. Based on these assertions, in Count I of its complaint, Ragan sought a declaration that there 

was coverage for its alleged business income losses and necessary extra expenses under the policy. 

And in Count II, Ragan asserted that Continental breached the policy by denying coverage, which 

caused it to suffer significant damages. 

¶ 10 After Continental’s attorneys filed an appearance on its behalf, the company moved to 

dismiss Ragan’s complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 

ILCS 5/2-615 (West 2020)). First, Continental observed that, under Illinois law, Ragan’s alleged 
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business income losses and necessary extra expenses had to be caused by direct physical loss of, 

or damage to, to its property, meaning the property was tangibly altered in some material 

dimension. However, despite this requirement, Continental argued that Ragan failed to make any 

such allegations. Second, Continental posited that Ragan had not alleged, nor could they 

adequately allege, any of the prerequisites to invoke the Civil Authority Coverage because that 

provision applied when a civil authority prohibited access to an insured’s premises. Continental 

asserted that Ragan failed to sufficiently allege that it had been prohibited from accessing its 

property, as required by the policy. Given these reasons, Continental contended that Ragan’s 

complaint for declaratory judgment and breach of contract must be dismissed with prejudice. 

¶ 11 In May 2022, after Ragan filed a response in opposition of Continental’s motion to dismiss, 

the circuit court entered a written order granting Continental’s motion. The court observed that, 

based on Traveler’s Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278 (2001), there must 

be a physical change to Ragan’s property such that the property would need to be repaired or 

rebuilt before becoming useable again. Because Ragan did not allege such damage, the court found 

its allegations insufficient to sustain its causes of action under the Business Income Coverage and 

Extra Expense Coverage provisions of the policy. The court next noted that, under the Civil 

Authority Coverage provision, there must be physical loss or damage to a neighboring property, 

which was not present based on the facts Ragan alleged in its complaint. Consequently, the court 

granted Continental’s motion and dismissed Ragan’s complaint with prejudice.

¶ 12 Ragan timely appealed the circuit court’s dismissal.

¶ 13 II. ANALYSIS

¶ 14 Ragan contends that the circuit court erred in dismissing its complaint for declaratory relief 

and breach of contract where its alleged business income losses and necessary extra expenses 
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incurred were covered under the Business Income Coverage, Extra Expense Coverage and Civil 

Authority Coverage provisions of its insurance policy with Continental. 

¶ 15 A motion to dismiss brought under section 2-615 of the Code (735 ILCS 5/2-615 (West 

2020)) challenges the legal sufficiency of a complaint. In re Estate of Powell, 2014 IL 115997, ¶ 

12. When reviewing a section 2-615 motion to dismiss, the circuit court must accept all well-pled 

facts in the complaint as true, as well as any reasonable inferences from those facts. Id. “The critical 

inquiry is whether the allegations of the complaint, when construed in the light most favorable to 

the plaintiff, are sufficient to establish a cause of action on which relief may be granted.” Id. A 

dismissal is proper under section 2-615 only when “it is clearly apparent from the pleadings that 

no set of facts can be proven that would entitle the plaintiff to recover.” Id. When the plaintiff 

attaches an instrument, such as an insurance policy, to a pleading, that instrument becomes part of 

the pleading for purposes of any motion based upon the pleadings. Bajwa v. Metropolitan Life 

Insurance Co., 208 Ill. 2d 414, 431 (2004). We review a dismissal pursuant to section 2-615 de 

novo. In re Estate of Powell, 2014 IL 115997, ¶ 12.

¶ 16 Additionally, this case involves the interpretation of an insurance policy, which is a legal 

question we review de novo. Lee v. State Farm Fire and Casualty Company, 2022 IL App (1st)

210105, ¶ 15. “When an insured sues its insurer over a denial of coverage, ‘the existence of 

coverage is an essential element of the insured’s case, and the insured has the burden of proving 

that [its] loss falls within the terms of [its] policy.’ ” ABW Development, LLC v. Continental 

Casualty Co., 2022 IL App (1st) 210930, ¶ 26 (quoting St. Michael’s Orthodox Catholic Church 

v. Preferred Risk Mutual Insurance Co., 146 Ill. App. 3d 107, 109 (1986)). Under Illinois law, “the 

general rules governing the interpretation of other types of contracts also govern the interpretation 

of insurance policies.” Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). 
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When interpreting an insurance policy, the primary goal “is to ascertain and give effect to the 

intention of the parties, as expressed in the policy language.” Id. “To ascertain the intent of the 

parties and the meaning of the words used in the insurance policy, the court must construe the 

policy as a whole, taking into account the type of insurance for which the parties have contracted, 

the risks undertaken and purchased, the subject matter that is insured and the purpose of the entire 

contract.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).

When the language of an insurance policy is clear and unambiguous, we must give that language 

its plain and ordinary meaning. Eljer, 197 Ill. 2d at 292-93. However, if the language is ambiguous, 

we will construe the language against the insurer, who drafted the policy. Id. at 293. 

¶ 17 A. Business Income Coverage and Extra Expense Coverage 

¶ 18 We begin with Ragan’s claim for coverage under the Business Income Coverage and Extra 

Expense Coverage provisions of its insurance policy with Continental. The crux of potential 

coverage under these provisions is the phrase “direct physical loss of or damage to property.” This 

is because to have its alleged business income losses and necessary extra expenses covered by the 

two provisions, there had to be “direct physical loss of or damage to property at the described 

premises,” i.e., Ragan’s office. As noted in Ragan’s complaint, its policy with Continental did not 

define that phrase or the word “physical.” In Eljer, 197 Ill. 2d at 300-312, our supreme court 

interpreted the word “physical” in an insurance policy when the policy provided no definition, 

though not in the context of the COVID-19 Virus. Therein, the court concluded “that, under its 

plain and ordinary meaning, the term ‘physical injury’ unambiguously connotes damage to 

tangible property causing an alteration in appearance, shape, color or in other material dimension.” 

Id. at 312. Recently, this court and the Seventh Circuit Court of Appeals, in applying Illinois law, 

addressed whether the COVID-19 Virus constituted direct physical loss of, or damage to, property 
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when a commercial insurance policy did not define the word “physical.” See ABW Development, 

2022 IL App (1st) 210930, ¶¶ 28-30; Sweet Berry Cafe, Inc. v. Society Insurance, Inc., 2022 IL 

App (2d) 210088, ¶¶ 37-41; Sandy Point Dental, P.C. v. Cincinnati Insurance Co., 20 F.4th 327, 

331-32 (7th Cir. 2021). 

¶ 19 In all three cases, the courts asserted that the word “physical” had to be given its plain and 

ordinary meaning, and in determining that meaning, the courts utilized the definition of “physical,” 

as stated in Eljer. See ABW Development, 2022 IL App (1st) 210930, ¶¶ 26, 29-30; Sweet Berry, 

2022 IL App (2d) 210088, ¶¶ 33, 40-41; Sandy Point, 20 F.4th at 331-33. As a result, in ABW 

Development, this court concluded that the policy in the case “unambiguously require[d] that the 

covered loss or damage be physical in nature, meaning that property has been ‘alter[ed] in 

appearance, shape, color or in other material dimension.’ ” ABW Development, 2022 IL App (1st) 

210930, ¶ 30 (quoting Eljer, 197 Ill. 2d at 301). In Sweet Berry, 2022 IL App (2d) 210088, ¶ 39, 

this court concluded that the policy in the case “unambiguously require[d] a physical alteration or 

substantial dispossession, not merely loss of use.” And in Sandy Point, 20 F.4th at 333, the Seventh 

Circuit Court of Appeals, in applying Illinois law, concluded that “ ‘direct physical loss’ require[d] 

a physical alteration to property.” Like ABW Development, Sweet Berry and Sandy Point, we see 

no reason to depart from the definition of “physical,” as stated in Eljer. As such, the word 

“physical” unambiguously connotes an alteration in appearance, shape, color or in other material 

dimension. 

¶ 20 Our conclusion that the word “physical” connotes as such is buttressed by the policy’s 

definition of “period of restoration,” which is critical to Ragan having its alleged business losses 

and necessary extra expenses covered. As noted, under the Business Income Coverage provision, 

Continental agreed to “pay for the actual loss of Business Income [Ragan] sustain[ed] due to the 
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necessary ‘suspension’ of [its] ‘operations’ during the ‘period of restoration.’ ” And a “period of 

restoration” was “the period of time that *** [b]egins with the date of direct physical loss or damage 

caused by or resulting from any Covered Cause of Loss at the described premises,” and ends either 

when the lost or damaged property “should be repaired, rebuilt or replaced with reasonable speed and 

similar quality” or “when business is resumed at a new permanent location.” (Emphasis added.) As the 

Seventh Circuit Court of Appeals observed in Sandy Point, 20 F.4th at 333, “[w]ithout a physical 

alteration to property, there would be nothing to repair, rebuild, or replace.” As such, in Sandy 

Point, the Seventh Circuit Court of Appeals found that the policy’s definition of “ ‘period of 

restoration,’ ” which was similar to the definition in the instant case, “reinforce[d] the conclusion that 

‘direct physical loss’ require[d] a physical alteration to property.” Id. Thus, the definition of 

“period of restoration” in Ragan’s policy supports our conclusion that the word “physical” 

unambiguously connotes an alteration in appearance, shape, color or in other material dimension.

¶ 21 Given the plain, ordinary and unambiguous definition of “physical,” we now turn to 

Ragan’s complaint to determine whether it sufficiently alleged facts to support the conclusion that 

the COVID-19 Virus or various government shutdown orders caused direct physical loss of, or 

damage to, its property. In its complaint, Ragan never alleged that the virus or shutdown orders 

caused an alteration in appearance, shape, color or in other material dimension to its property. 

Notably, Ragan never pled any factual assertions detailing what of its property was physically 

damaged or lost, what that physical damage was or what repairs or replacements were necessary 

to repair said physical damage or loss. In short, Ragan’s complaint was bereft of any facts showing 

that there was any physical damage to, or loss of, its property. See ABW Development, 2022 IL 

App (1st) 210930, ¶¶ 35-36 (finding the plaintiff’s alleged business income losses not covered by 

its insurance policy that required a direct physical loss of, or damage to, covered property where, 
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“[a]lthough plaintiff alleged that the COVID-19 virus caused physical loss or damage to its 

property, the complaint [did] not allege any facts that would support that conclusion”).

¶ 22 Instead, Ragan’s complaint asserted that direct physical loss of, or damage to, its property 

occurred when a covered cause of loss threatened or rendered its property unusable or unsuitable

for its intended purpose. However, in Sandy Point, 20 F.4th at 335, the Seventh Circuit Court of 

Appeals addressed a similar argument from a dental business where the business “point[ed] only 

to the loss of the property’s ‘intended use.’ ” In rejecting that argument, the Seventh Circuit Court 

of Appeals asserted that was insufficient, and while the business “may have been unable to put its 

property to its preferred (and, we assume, its most lucrative) use,” the business did not suffer a 

complete physical dispossession of its property. Id. 

¶ 23 The same is true in the instant case. And merely because Ragan alleged that its property 

was rendered unusable or unsuitable for its intended purpose or unsafe for ordinary human 

occupancy or continued use, that is insufficient to establish direct physical loss of, or damage to, 

its property. Because Ragan failed to allege that the COVID-19 Virus or various government 

orders caused an alteration in appearance, shape, color or in other material dimension to its 

property, i.e., a “direct physical loss of or damage to property,” the allegations in Ragan’s 

complaint are insufficient to establish that its alleged business income losses and necessary extra 

expenses were covered by the Business Income Coverage and Extra Expense Coverage provisions 

of its insurance policy. See ABW Development, 2022 IL App (1st) 210930, ¶ 36; Firebirds 

International, LLC v. Zurich American Insurance Co., 2022 IL App (1st) 210558, ¶¶ 38-40; Sweet 

Berry, 2022 IL App (2d) 210088, ¶ 43; Sandy Point, 20 F.4th at 333-34. 

¶ 24 Nevertheless, Ragan attempts to argue that the various decisions interpreting the phrase 

direct physical loss of, or damage to, property have mistakenly relied on our supreme court’s 
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decision in Eljer. However, nearly every argument made by Ragan has been rejected in some form 

or fashion in the various decisions applying Eljer’s definition of “physical” to an insurance policy 

in the context of the COVID-19 Virus. See ABW Development, 2022 IL App (1st) 210930; Sweet 

Berry, 2022 IL App (2d) 210088; Sandy Point, 20 F.4th 327. Furthermore, Ragan highlights 

various cases from other jurisdictions to support its position that its insurance policy with 

Continental covered its alleged business income losses and necessary extra expenses. See, e.g., 

Risinger Holdings, LLC v. Sentinel Insurance Co., Ltd., 565 F. Supp. 3d 844 (E.D. Tex. 2021); 

Susan Spath Hegedus, Inc. v. ACE Fire Underwriters Insurance Co., 538 F. Supp. 3d 457 (E.D. 

Pa. 2021); Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co., 506 F. Supp. 

3d 360 (E.D. Va. 2020). However, Illinois law is clear on this issue (see ABW Development, 2022 

IL App (1st) 210930, ¶¶ 27-30; Sweet Berry, 2022 IL App (2d) 210088, ¶ 39; Sandy Point, 20 

F.4th at 334), and thus, we need not look toward other jurisdictions for guidance. 

¶ 25 Having failed to sufficiently allege that the COVID-19 Virus or various government 

shutdown orders caused a direct physical loss of, or damage to, its property, the circuit court 

properly found that Ragan’s alleged business income losses and necessary extra expenses were not 

covered by the Business Income Coverage and Extra Expense Coverage provisions of its insurance 

policy with Continental. 

¶ 26 B. Civil Authority Coverage

¶ 27 Ragan next contends that the circuit court erred in finding that its complaint failed to 

sufficiently allege a claim for coverage under the Civil Authority Coverage provision of its

insurance policy with Continental. Ragan argues that its complaint sufficiently alleged that the 

ubiquitous nature of the COVID-19 Virus caused direct physical loss of, or damage to, its 

neighboring properties in order to trigger coverage under the Civil Authority Coverage provision. 
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¶ 28 Under the Civil Authority Coverage provision of Ragan’s policy, Continental agreed to 

cover the “actual loss of Business Income [Ragan] sustain[ed] and reasonable and necessary Extra 

Expense [it] incur[red] caused by action of civil authority that prohibit[ed] access to the described 

premises,” i.e., Ragan’s office. However, “[t]he civil authority action must be due to direct

physical loss of or damage to property at locations, other than [Ragan’s office], caused by or 

resulting from a Covered Cause of Loss.” Like with the potential coverage under the Business 

Income Coverage and Extra Expense Coverage provisions of the insurance policy, coverage under 

the Civil Authority Coverage provision of the policy required direct physical loss of, or damage

to, property, though in this instance property other than Ragan’s office. As previously discussed, 

Ragan failed to allege that the COVID-19 Virus or the shutdown orders caused an alteration in 

appearance, shape, color or in other material dimension of its property, let alone property at other 

locations. Therefore, Ragan failed to make a claim that its alleged business income losses and 

necessary extra expenses were covered by the Civil Authority Coverage provision of its insurance 

policy with Continental. 

¶ 29 However, Ragan’s claim for coverage under the Civil Authority Coverage provision fails 

for another reason. The policy only covers the actual loss of business income or necessary extra 

expenses attributable to actions issued by civil authorities that “prohibit[ed] access” to Ragan’s

office. Although in its complaint, Ragan claimed that the various government orders forced it to 

“effectively close” its business and the covered property, i.e., its office, Ragan never asserted that 

it was prohibited from accessing its premises. See ABW Development, 2022 IL App (1st) 210930, 

¶ 40 (where the plaintiff did not allege “facts that would indicate that access to its premises was 

ever ‘prohibit[ed],’ ” and “only contend[ed] that the executive orders prohibited plaintiff from 

‘operating its regular businesses,’ or making its full desired use of its premises,” it could not claim 
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coverage under a civil authority provision of an insurance policy that required the civil authority 

order to prohibit access to its premises). Consequently, the circuit court properly found that 

Ragan’s alleged business income losses and necessary extra expenses were not covered by the 

Civil Authority Coverage provision of its insurance policy with Continental.

¶ 30 Because we have concluded that Ragan failed to allege sufficient facts to establish that its 

alleged business income losses and necessary extra expenses were covered under the Business 

Income Coverage, Extra Expense Coverage and Civil Authority Coverage provisions of its 

insurance policy with Continental, the circuit court properly granted Continental’s motion to 

dismiss as to Ragan’s Count I for declaratory relief.

¶ 31 C. Breach of Contract Claim

¶ 32 Although Ragan does not make any specific arguments toward the dismissal of its 

complaint’s breach of contract cause of action (Count II), and rather focuses purely on the coverage 

issues, we briefly address this count for the sake of completeness. In order to state a claim for 

breach of contract, the plaintiff “must allege (1) the existence of a valid and enforceable contract, 

(2) substantial performance by the plaintiff, (3) a breach by the defendant, and (4) resultant 

damages.” Bankers Life & Casualty Co. v. American Senior Benefits LLC, 2017 IL App (1st) 

160687, ¶ 15. Based on our conclusions above that Ragan’s policy with Continental did not cover 

Ragan’s alleged business income losses and necessary extra expenses as a result of the COVID19 Virus and related government orders, Continental could not have breached the insurance policy 

with Ragan by denying coverage. See Lee, 2022 IL App (1st) 210105, ¶ 23 (concluding that, where 

an insurance policy did not cover a business’s claimed losses, “there can be no breach of the 

insurance contract premised on the allegation that [the insurer] improperly failed to provide 
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coverage”). Consequently, the circuit court properly granted Continental’s motion to dismiss as to 

Ragan’s Count II for breach of contract. 

¶ 33 D. Dismissal with Prejudice

¶ 34 Lastly, we note that, in granting Continental’s motion to dismiss Ragan’s complaint, the 

circuit court did so with prejudice. “[I]t is well established that a cause of action should not be 

dismissed with prejudice unless it is clear that no set of facts can be proved under the pleadings 

which would entitle plaintiffs to relief.” Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). 

In the instant case, Ragan has not made an argument that, assuming arguendo, the court properly 

granted Continental’s motion to dismiss, its dismissal with prejudice was nevertheless improper. 

As such, any such argument is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not 

argued are forfeited.”). And consequently, the circuit court properly dismissed Ragan’s complaint 

with prejudice.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 37 Affirmed.