ITT Inc. v. Factory Mutual Insurance Company

Filing 77

RULING. For the reasons set forth in the attached Ruling, defendant's 64 Motion to Dismiss is GRANTED, and plaintiffs 67 Motion for Oral Argument is DENIED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 5/10/2022. (Teague, J.)

Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 1 of 36

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ITT INC.
:
:
v.
:
:
FACTORY MUTUAL INSURANCE
:
COMPANY
:
:
------------------------------x

Civ. No. 3:21CV00156(SALM)

May 10, 2022

RULING ON MOTION TO DISMISS AMENDED COMPLAINT [Doc. #64]
Defendant Factory Mutual Insurance Company (“FMIC” or
“defendant”)1 has filed a motion pursuant to Federal Rule of
Civil Procedure 12(b)(6) seeking to dismiss the Amended
Complaint (Doc. #57) in its entirety. [Doc. #64]. Plaintiff has
filed a memorandum in opposition to the Motion to Dismiss [Doc.
#65], to which defendant has filed a reply [Doc. #66]. Both
parties have filed supplemental briefing. [Docs. ##68, 69, 71,
72, 73, 74, 75, 76]. For the reasons stated herein, the Motion
to Dismiss [Doc. #64] is GRANTED.
Plaintiff also filed a Motion for Oral Argument, see Doc.
#67, to which defendant filed a response, see Doc. #70. The
Court has determined that oral argument is not necessary and
would not assist the Court in ruling on the pending motion. See
D. Conn. L. Civ. R. 7(a)(3) (“Notwithstanding that a request for

1

Plaintiff refers to defendant as “FM” in its submissions.
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oral argument has been made, the Court may, in its discretion,
rule on any motion without oral argument.”). Accordingly,
plaintiff’s Motion for Oral Argument [Doc. #67] is DENIED.
I.

Procedural Background
Plaintiff ITT Inc. (“ITT” or “plaintiff”) brought this

action on February 5, 2021, against FMIC. See Doc. #2 at 1.2 On
April 2, 2021, FMIC filed a motion to dismiss, see Doc. #29, to
which plaintiff filed an opposition on April 23, 2021. See Doc.
#42. Judge Stefan R. Underhill granted the motion to dismiss
without prejudice to plaintiff filing an Amended Complaint. See
Doc. #55, Doc. #56. On September 2, 2021, ITT filed an Amended
Complaint, which is now the operative complaint. See Doc. #57.
This matter was transferred to the undersigned on October 15,
2021. See Doc. #63. FMIC filed the instant Motion to Dismiss on
November 8, 2021. See Doc. #64.
II.

Factual Background
The Court accepts the following allegations as true, solely

for purposes of this Motion to Dismiss.
“ITT is a worldwide diversified manufacturing and
technology company. ITT manufactures products and components and
provides services for the aerospace, transportation, energy,

Throughout this Ruling, the Court cites to the page numbers
reflected in each document’s ECF header, rather than any
numbering applied by the filing party.  
2

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communications, and industrial markets.” Doc. #57 at 3. “FM sold
ITT an insurance policy which ‘covers property, as described in
this Policy, against ALL RISKS OF PHYSICAL LOSS OR DAMAGE,
except as hereinafter excluded, while located as described in
this Policy.’” Id. at 3 (quoting Doc. #57-1 at 9).
In March 2020, numerous ITT facilities worldwide “were
shut-down, thus curtailing access, following issuance of civil
authority shelter-in-place orders because, among other things,
the actual presence of the COVID-19 communicable disease within
five miles of covered ITT locations was causing loss or damage
to property.” Id. at 19. “[T]he COVID-19 communicable disease
had been identified to be present at several covered ITT
locations because infected persons entered the premises, thus
causing the shut-down of the business[.]” Id. at 18.
By its terms, the Policy provides coverage for “TIME
ELEMENT loss, as provided in the TIME ELEMENT COVERAGES,
directly resulting from physical loss or damage of the type
insured: 1) to property described elsewhere in this Policy and
not otherwise excluded by this Policy or otherwise limited in
the TIME ELEMENT COVERAGES below[.]” Doc. #57-1 at 49. Plaintiff
asserts that this provision provides “coverage for business
interruption and related losses sustained by ITT resulting from
the inability to put damaged property to its normal use where
‘normal’ is defined by the Policy as ‘the condition that would
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have existed had no physical loss or damage happened.’” Doc. #57
at 4 (quoting Doc. #57-1 at 85).
The Policy also contains several Time Element coverage
extensions. As relevant here, the Policy extends Time Element
coverage under the following provisions: (1) “Civil or Military
Authority[,]” Doc. #57-1 at 61; (2) “Ingress/Egress[,]” id. at
62; and (3) “Logistics Extra Cost[.]” Id. at 63. The Policy’s
Civil or Military Authority Extension provides coverage for:
[T]he Actual Loss Sustained and EXTRA EXPENSE incurred
by the Insured during the PERIOD OF LIABILITY if an order
of civil or military authority limits, restricts or
prohibits partial or total access to an insured location
provided such order is the direct result of physical
damage of the type insured at the insured location or
within five statute miles/eight kilometres of it.
Id. at 61.
The Policy’s Ingress/Egress Extension provides coverage as
follows:
This Policy covers the Actual Loss Sustained and EXTRA
EXPENSE incurred by the Insured during the PERIOD OF
LIABILITY due to the necessary interruption of the
Insured’s business due to partial or total physical
prevention of ingress to or egress from an insured
location, whether or not the premises or property of the
Insured is damaged, provided that such prevention is a
direct result of physical damage of the type insured to
property of the type insured.
Id. at 62.
Finally, the Policy provides the following Logistics Extra
Cost coverage:

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This Policy covers the extra cost incurred by the Insured
during the PERIOD OF LIABILITY due to the disruption of
the normal movement of goods or materials:
1) directly between insured locations; or
2) directly between an insured location and a
location of a direct customer, supplier,
contract manufacturer or contract services
provider to the Insured,
provided that such disruption is a direct result of
physical loss or damage of the type insured to property
of the type insured located within the TERRITORY of this
Policy.
Id. at 63.
The Policy provides additional coverage for Claims
Preparation Costs. The Policy’s Claims Preparation Costs
provision provides coverage for, among other things, “the cost
of using the Insured’s employees, for producing and certifying
any particulars or details contained in the Insured’s books or
documents, or such other proofs, information or evidence
required by the Company resulting from insured loss payable
under this Policy for which the Company has accepted liability.”
Id. at 33.
The Policy contains the following Contamination Exclusion:
This Policy excludes the following unless directly
resulting from other physical damage not excluded by
this Policy:
1)

contamination,
and
any
cost
due
to
contamination including the inability to use
or occupy property or any cost of making
property safe or suitable for use or
occupancy. If contamination due only to the
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actual
not
suspected
presence
of
contaminant(s) directly results from other
physical damage not excluded by this Policy,
then only physical damage caused by such
contamination may be insured.
Id. at 25.
Contamination is defined as “any condition of property due
to the actual or suspected presence of any foreign substance,
impurity, pollutant, hazardous material, poison, toxin, pathogen
or pathogenic organism, bacteria, virus, disease causing or
illness causing agent, fungus, mold or mildew.” Id. at 82.
While the policy excludes coverage for contamination and
related costs, it provides Communicable Disease coverage with a
$1,000,000.00 annual aggregate sublimit under two provisions.
See id. at 15. Communicable Disease is defined as a “disease
which is: A. transmissible from human to human by direct or
indirect contact with an affected individual or the individual’s
discharges, or B. Legionellosis.” Id. at 82.
Under the first Communicable Disease provision,
“Communicable Disease Response” Coverage, the Policy provides:
If a location owned, leased or rented by the Insured has
the actual not suspected presence of communicable
disease and access to such location is limited,
restricted or prohibited by:
1)

an order of an authorized governmental agency
regulating the actual not suspected presence
of communicable disease; or

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2) a decision of an Officer of the Insured as a
result of the actual not suspected presence of
a communicable disease,
this Policy covers the reasonable and necessary costs
incurred by the Insured at such location with the actual
not suspected presence of communicable disease for the:
1)

cleanup, removal and disposal of the actual
not
suspected
presence
of
communicable
diseases from insured property; and

2)

actual costs of fees payable to public
relations services or actual costs of using
the
Insured’s
employees
for
reputation
management resulting from the actual not
suspected presence of communicable diseases on
insured property.

Id. at 33-34.
The Second Communicable Disease provision provides coverage
for “Interruption by Communicable Disease” as follows:
If a location owned, leased or rented by the Insured has
the actual not suspected presence of communicable
disease and access to such location is limited,
restricted or prohibited by:
1)

an order of an authorized governmental agency
regulating the actual not suspected presence
of communicable disease; or

2)

a decision of an Officer of the Insured as a
result of the actual not suspected presence of
communicable disease,

this Policy covers the Actual Loss Sustained and EXTRA
EXPENSE incurred by the Insured during the PERIOD OF
LIABILITY at such location with the actual not suspected
presence of communicable disease.
Id. at 68.

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“ITT submitted its initial proof of loss under the Policy
to FM on June 26, 2020.” Doc. #57 at 23. Defendant “acknowledged
receipt of the proof of loss on July 17, 2020.” Id. In its July
17, 2020, letter, defendant rejected plaintiff’s claim for
coverage “arising from the novel coronavirus under the civil or
military authority, time element and contingent time element
extended, and extra expense coverages under the Policy.” Doc.
#57-3 at 67. Specifically, defendant stated:
[T]he presence of COVID-19 at an insured location does
not constitute “physical damage of the type insured” as
required under those provisions of the Policy. The
presence of a virus does not alter or materially change
property. Your locations were not rendered unusable by
the tangible presence of the virus, but instead were
closed to prevent the spread of the virus among humans
by coming into close contact with each other, whether or
not the virus was actually present on any property. ...
Even assuming the presence of coronavirus at each of the
ITT locations in the claim could be established, which
it has not been, it does not cause any physical change
or new risk to the physical integrity of the property in
any way, let alone create tangible, structural damage.
Thus, the mere threat of the coronavirus at the property
or the preemptive closure of those locations to prevent
the spread of COVID-19 is not considered “direct
physical loss or damage” to property.
Moreover, contamination due to COVID-19 would be
excluded under the Policy. We again refer you to our 13
May 2020 letter, and the relevant provisions of the
contamination
exclusion
and
the
definition
of
contamination, which includes “...pathogen or pathogenic
organism, bacteria, virus, disease causing or illness
causing agent...” Thus, a virus such as COVID-19 is
expressly identified as a form of contamination under
the Policy.
Id.
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Following defendant’s July 10, 2021, letter, the parties
“continued to discuss ITT’s claim over the next ten months.”
Doc. #57 at 24. Ultimately, defendant paid plaintiff “the $1
million annual aggregate sublimit” under the Policy’s
Communicable Disease Response and Interruption by Communicable
Disease coverage provisions. Doc. #64-1 at 16; see also Doc. #57
at 24.
Plaintiff argues that it is entitled to additional coverage
under the Policy’s Time Element, Civil or Military Authority,
Ingress/Egress, Logistics Extra Cost, and Claims Preparation
Costs provisions. See Doc. #57 at 22-23.
III. Legal Standard
“When deciding a motion to dismiss, a district court may
consider documents attached to the complaint or incorporated by
reference into the complaint[,]” including an insurance policy
referenced in the complaint. New Image Roller Dome, Inc. v.
Travelers Indem. Co. of Ill., 310 F. App’x 431, 432 (2d Cir.
2009) (citation omitted). 

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation and quotation marks omitted);
accord Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854
(2d Cir. 2021). In reviewing such a motion, the Court “must
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accept as true all nonconclusory factual allegations in the
complaint and draw all reasonable inferences in the Plaintiffs’
favor.” Kaplan, 999 F.3d at 854 (citations omitted).
“[W]hile this plausibility pleading standard is forgiving,
it is not toothless. It does not require [the Court] to credit
legal conclusions couched as factual allegations or naked
assertions devoid of further factual enhancement.” Mandala v.
NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (citation and
quotation marks omitted). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Iqbal, 556 U.S. at 678 (citations and
quotation marks omitted).
IV.

Choice of Law
Plaintiff makes no argument regarding choice of law, but

simply cites to and relies upon Connecticut law in its
opposition brief. See Doc. #65 at 18-19. Defendant asserts that
the outcome would be the same “regardless of whether Connecticut
or New York law applies and, therefore, the Court need not
engage in a choice-of-law analysis.” Doc. #64-1 at 18 n.5. The
Court therefore applies Connecticut law, but has consulted New
York law as well.
V.

Law Regarding Interpretation of Insurance Policies
Under Connecticut law, “[a]n insurance policy is to be

interpreted by the same general rules that govern the
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construction of any written contract. ... If the terms of the
policy are clear and unambiguous, then the language, from which
the intention of the parties is to be deduced, must be accorded
its natural and ordinary meaning.” Lexington Ins. Co. v.
Lexington Healthcare Grp., Inc., 84 A.3d 1167, 1173 (Conn. 2014)
(citation and quotation marks omitted). The “policy language
remains the touchstone of our inquiry.” Conn. Ins. Guar. Ass’n
v. Fontaine, 900 A.2d 18, 22 (Conn. 2006).
“A contract of insurance must be viewed in its entirety,
and the intent of the parties for entering it derived from the
four corners of the policy giving the words of the policy their
natural and ordinary meaning and construing any ambiguity in the
terms in favor of the insured.” Misiti, LLC v. Travelers Prop.
Cas. Co. of Am., 61 A.3d 485, 490–91 (Conn. 2013) (citations and
quotation marks omitted). However, the Court need not resolve an
ambiguity that does not exist, and must not manufacture one.
Thus, the “rule of construction that favors the insured in case
of ambiguity applies only when the terms are, without violence,
susceptible of two equally reasonable interpretations.” Id. at
491 (citation and quotation marks omitted).
In determining whether the terms of an insurance policy
are clear and unambiguous, a court will not torture words
to import ambiguity where the ordinary meaning leaves no
room for ambiguity. Similarly, any ambiguity in a
contract must emanate from the language used in the
contract rather than from one party’s subjective
perception of the terms.
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Zulick v. Patrons Mut. Ins. Co., 949 A.2d 1084, 1088 (Conn.
2008) (citation and quotation marks omitted). The Court will not
find that ambiguity exists “simply because lawyers or laymen
contend for different meanings[]” of certain words, or simply
“because a contract fails to define them[.]” New London Cnty.
Mut. Ins. Co. v. Nantes, 36 A.3d 224, 235 (Conn. 2012)
(citations and quotation marks omitted); see also Misiti, LLC,
61 A.3d at 491 (“The fact that the parties advocate different
meanings of the insurance policy does not necessitate a
conclusion that the language is ambiguous.” (citations and
quotation marks omitted)).
VI.

Discussion
Plaintiff’s Amended Complaint asserts a single claim for

breach of contract. See Doc. #57 at 25-26. Defendant argues that
this action should be dismissed in its entirety because: (1)
“Plaintiff Cannot Demonstrate Physical Loss or Damage to its
Insured Properties[,]” Doc. #64-1 at 19; (2) “The Policy’s
Contamination Exclusion Bars ITT’s Claim for Coverage[,]” Id. at
33; and (3) “The Loss of Use Exclusion bars Plaintiff’s claims
for damages arising from ITT’s alleged inability to fully use
its properties.” Id. at 37. Plaintiff opposes defendant’s Motion
to Dismiss on all three grounds. See Doc. #65. The Court finds
that plaintiff’s failure to adequately allege any physical loss

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or damage under the Policy is fatal to its breach of contract
claim. Accordingly, for the reasons set forth below, defendant’s
Motion to Dismiss is GRANTED.
A.

Physical Loss or Damage

The breach of contract claim fails because plaintiff has
not adequately alleged any physical loss or damage under the
Policy.
1.

Relevant Contractual Provisions

Plaintiff asserts the right to coverage under the: (1) Time
Element; (2) Civil or Military Authority; (3) Ingress/Egress;
(4) Logistics Extra Cost; and (5) Claims Preparation Cost
provisions. See Doc. #57 at 22-23. Each of these provisions
requires either “physical damage of the type insured” or
“physical loss or damage of the type insured.” Doc. #57-1 at 49,
61, 62, 63.
First, plaintiff asserts the right to coverage under the
Time Element provision. The Policy’s Time Element provision
states: “The Policy insures TIME ELEMENT loss, as provided in
the TIME ELEMENT COVERAGES, directly resulting from physical
loss or damage of the type insured ... to property described
elsewhere in this Policy[.]” Id. at 49 (emphasis added). Thus,
under the Policy’s Time Element provision, “physical loss or
damage” to property is necessary to trigger coverage.

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Second, plaintiff asserts the right to coverage under the
Policy’s Civil or Military Authority Extension. The Civil or
Military Authority Extension states that defendant will provide
coverage for
the Actual Loss Sustained and EXTRA EXPENSE incurred by
the Insured during the PERIOD OF LIABILITY if an order
of civil or military authority limits, restricts or
prohibits partial or total access to an insured location
provided such order is the direct result of physical
damage of the type insured at the insured location or
within five statute miles/eight kilometres of it.
Id. at 61 (emphasis altered). Thus, before coverage under the
Civil or Military Authority Extension is triggered, “physical
damage” to property is required.
Third, plaintiff asserts the right to coverage under the
Ingress/Egress Extension. That extension provides coverage for
losses incurred
due to the necessary interruption of the Insured’s
business due to partial or total physical prevention of
ingress to or egress from an insured location, whether
or not the premises or property of the Insured is damaged
provided that such prevention is a direct result of
physical damage of the type insured to property of the
type insured.
Id. at 62 (emphasis altered). Thus, before coverage under the
Ingress/Egress Extension is triggered, “physical damage” to
property is required.
Fourth, plaintiff asserts the right to coverage under the
Logistics Extra Cost Extension. The Logistics Extra Cost
Extension
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covers the extra cost incurred by the Insured during the
PERIOD OF LIABILITY due to the disruption of the normal
movement of goods or materials:
1)
directly between insured locations; or
2)

directly between an insured location and a location
of
a
direct
customer,
supplier,
contract
manufacturer or contract services provider to the
Insured,

provided that such disruption is a direct result of
physical loss or damage of the type insured to property
of the type insured located within the TERRITORY of this
Policy.
Id. at 63 (emphasis altered). Thus, under the Policy’s Logistics
Extra Cost Extension, “physical loss or damage” to property is
necessary to trigger coverage.
Finally, plaintiff asserts the right to coverage under the
Claims Preparation Costs provision. Although this coverage does
not itself require physical loss or damage, it is contingent on
an “insured loss ... for which the Company has accepted
liability.” Id. at 33. Thus, coverage under this provision, too,
hinges upon plaintiff’s ability to show physical loss or damage
to property under one of the four previously mentioned
coverages.
In sum, each provision under which plaintiff asserts the
right to coverage requires either “physical damage” or “physical
loss or damage” to property. Because the Court finds that
plaintiff has not adequately alleged any “physical loss or

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damage” to property under the Policy, plaintiff fails to state a
claim for breach of contract.
2.

The Policy’s Language

The Court turns to the threshold interpretive issue of the
policy language. The Court finds that the phrase “physical loss
or damage” is not ambiguous. Where, as here, a term is undefined
in an insurance policy, “it must be given its plain, ordinary
meaning.” Costabile v. Metro. Prop. & Cas. Ins. Co., 193 F.
Supp. 2d 465, 477 (D. Conn. 2002).
A review of the plain, ordinary meaning of the phrase
“physical loss or damage” reveals that such language
“unambiguously requires physical damage or physical alteration”
to property. Great Meadow Cafe v. Cincinnati Ins. Co., No.
3:21CV00661(KAD), 2022 WL 813796, at *6 (D. Conn. Mar. 17,
2022); see also Jeffrey M. Dressel, D.D.S., P.C. v. Hartford
Ins. Co. of the Midwest, Inc., No. 20CV02777(KAM), 2021 WL
1091711, at *3 (E.D.N.Y. Mar. 22, 2021) (interpreting
substantially similar language, and finding that “the language
of the Policy was clear and unambiguous, and required coverage
only in the event of some physical harm to property[]”). Indeed,
as the Eastern District of New York has aptly explained when
interpreting substantially similar language:
The plain language of “physical loss of ... property”
does not mean, as Plaintiff argues, a loss of the ability
to run the business. A “physical loss” means that
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physical property suffered a loss. Plaintiff, however,
does not allege that its loss of income was caused by
any physical property suffering a loss, in value or
otherwise. Similarly, “physical damage to property” can
only mean that the physical property suffered some sort
of physical damage.
Jeffrey M. Dressel, D.D.S., P.C., 2021 WL 1091711, at *3.
The undersigned agrees with this analysis. “Deriving the
plain and ordinary meaning of [virtually] identical contract
language from the dictionary, courts in this Circuit have
repeatedly concluded that the phrase direct physical loss of or
physical damage to connotes a negative alteration in the
tangible condition of property, that is, that this phrase
requires some form of actual physical damage to the insured
premises.” Mario Badescu Skin Care Inc. v. Sentinel Ins. Co.,
No. 20CV06699(AT), 2022 WL 253678, at *4 (S.D.N.Y. Jan. 27,
2022) (citations and quotation marks omitted); see also Deer
Mountain Inn LLC v. Union Ins. Co., No. 21-1513-cv, 2022 WL
598976, at *2 (2d Cir. Mar. 1, 2022) (rejecting claim for
coverage under substantially similar policy language because
plaintiff failed to “plausibly allege that its insured property
sustained any physical damage; it merely allege[d] loss of use
of that property[]”). “Losing the ability to use otherwise
unaltered or existing property simply does not change the
physical condition or presence of that property and therefore
cannot be classified as a form of ‘direct physical loss’ or

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‘damage.’” Michael Cetta, Inc. v. Admiral Indem. Co., 506 F.
Supp. 3d 168, 176 (S.D.N.Y. 2020), appeal withdrawn, No. 21-57cv, 2021 WL 1408305 (2d Cir. Mar. 23, 2021).
The Policy’s language is not “reasonably susceptible to
more than one reading.” Lexington Ins. Co., 84 A.3d at 1173
(citation and quotation marks omitted). Plaintiff advances its
own proposed interpretation of physical loss or damage. Relying
on certain selected dictionary definitions of the relevant
language, plaintiff asserts:
The word “physical” is defined as “having material
existence: perceptible especially through the senses and
subject to the laws of nature.” Definitions of “loss”
include (i) “the partial or complete deterioration or
absence of a physical capability or function,” (ii) “the
harm or privation resulting from losing or being
separated from someone or something,” and (iii) the
“failure to gain, win, obtain, or utilize.” Damage is
defined as a “loss or harm resulting from injury to
person, property, or reputation.” The word “or” is a
disjunctive, meaning the Policy covers “loss” or
“damage,” or both.
Doc. #65 at 22 (citations omitted).
Piecing these definitions together, plaintiff goes on to
assert that “physical ‘loss’ occurs when property is damaged.
Property ‘damage,’ however, is not required for there to be
physical ‘loss.’ Property ‘damage’ may require injury. Property
‘loss,’ however, can exist simply when property loses its
‘physical capability or function,’ from ‘privation’ or from the
inability to utilize the property.” Id.

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“However, the mere fact that” ITT was “deprived of the full
desired use of their properties does not mean that there was an
actual loss of those properties. Rather, the property itself was
unharmed, and remained in the same condition it was in prior to
the pandemic.” ENT & Allergy Assocs., LLC v. Cont’l Cas. Co.,
No. 3:21CV00289(SALM), 2022 WL 624628, at *6 (D. Conn. Mar. 3,
2022); see also BR Restaurant Corp., v. Nationwide Mut. Ins.,
No. 21-2100-cv, 2022 WL 1052061, at *2 (2d Cir. Apr. 8, 2022)
(holding that plaintiff did not adequately allege physical loss
or damage where it alleged “nothing more than the losses it
suffered as a result of restrictions on its use of the
premises”); SA Hosp. Grp., LLC v. Hartford Fire Ins. Co., No.
21-1523-cv, 2022 WL 815683, at *2 (2d Cir. Mar. 18, 2022)
(“[Plaintiff] alleges only a loss of use of property with
respect to its restaurants, which does not amount to an actual
physical loss of property.” (citation and quotation marks
omitted)). Thus, “the term ‘physical loss or damage’ is clear
and unambiguous. It requires actual physical damage to the
insured’s property. Mere loss of use or functionality will not
do.” St. George Hotel Asocs., LLC v. Affiliated FM Ins. Co., No.
20CV05097(DG), 2021 WL 5999679, at *6 (E.D.N.Y. Dec. 20, 2021).
In an attempt to escape this conclusion, plaintiff asserts:
“If physical ‘loss’ requires a ‘tangible, physical alteration’
of property, as FM asserts, then the term ‘physical loss’ has no
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meaning in the Policy. Rather, the FM Policy would only cover
physical ‘damage’ to property, therefore rendering superfluous
any coverage for physical ‘loss.’” Doc. #65 at 27.
“Multiple courts have convincingly rejected this theory
because the terms ‘loss’ and ‘damage’ are not redundant and have
readily different meanings.” Conn. Children’s Med. Ctr. v.
Cont’l Cas. Co., --- F. Supp. 3d ---, No. 3:21CV00291(JAM), 2022
WL 168786, at *4 (D. Conn. Jan. 19, 2022). “The fact that
‘direct physical loss’ and ‘direct physical damage’ both require
tangible alteration to property does not render either term
superfluous.” Cosm. Laser, Inc. v. Twin City Fire Ins. Co., --F. Supp. 3d ---, No. 3:20CV00638(SRU), 2021 WL 3569110, at *14
(D. Conn. Aug. 11, 2021). To the contrary: “‘[T]he word ‘loss’
may refer to complete destruction while ‘damage’ connotes lesser
harm that may be repaired.’” Conn. Children’s Med. Ctr., 2022 WL
168786, at *4 (quoting Sandy Point Dental, P.C. v. Cincinnati
Ins. Co., 20 F.4th 327, 332 (7th Cir. 2021)); see also Cosm.
Laser, Inc., 2021 WL 3569110, at *14.
The undersigned agrees. The terms loss and damage are not
redundant, and there is no need to adopt an unnatural
interpretation of the term physical loss to mean “a functional
‘loss of use’ of one’s property.” Conn. Children’s Med. Ctr.,
2022 WL 168786, at *4. Accordingly, requiring tangible

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alteration to property in order to trigger physical loss or
damage under the Policy does not render either term superfluous.
The “court will not torture words to import ambiguity where
the ordinary meaning leaves no room for ambiguity.” Zulick, 949
A.2d at 1088 (citation and quotation marks omitted). Thus, the
Court joins the “overwhelming weight of precedent[,]” St. George
Hotel Assocs., LLC, 2021 WL 5999679, at *6, in finding that the
plain meaning of the phrase “physical loss or damage” “connotes
a negative alteration in the tangible condition of property[.]”
Mario Badescu Skin Care Inc., 2022 WL 253678, at *4 (citations
and quotation marks omitted); see also Great Meadow Cafe, 2022
WL 813796, at *4 (“The United States Court of Appeals for the
Second Circuit and courts in the District of Connecticut have
uniformly found that the plain, ordinary meaning of nearly
identical language, direct physical loss or damage, is
reasonably susceptible to only one interpretation, and
unambiguously requires a physical alteration to property.”
(citation and quotation marks omitted)).
This interpretation finds further support from the Time
Element Coverage’s “Period of Liability” provision. Doc. #57-1
at 55-56. As defendant explains, “the Period of Liability
commences at the ‘time of physical loss or damage of the type
insured[.]’” Doc. #64-1 at 11 (quoting Doc. #57-1 at 55-56). The
Period of Liability ends “when with due diligence and dispatch
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the building and equipment could be: (i) repaired or replaced;
and (ii) made ready for operations, under the same or equivalent
physical and operating conditions that existed prior to the
damage.” Doc. #57-1 at 55-56.
However, “[i]f there has been no physical alteration to the
condition or location of the property, there is nothing to
‘repair ... or replace.’” Chief of Staff LLC v. Hiscox Ins. Co.
Inc., 532 F. Supp. 3d 598, 603 (N.D. Ill. 2021) (citation
omitted) (applying Connecticut law). Thus, the fact “[t]hat the
policy provides coverage until property ‘should be repaired ...
or replaced’ ... assumes physical alteration of property[.]”
Cosm. Laser, Inc., 2021 WL 3569110, at *14 (citations and
quotation marks omitted).
Plaintiff does not address the import of the “Period of
Liability” provision. Instead, plaintiff advances two additional
arguments in support of its claim that other provisions in the
Policy support its proposed interpretation of physical loss or
damage. Both fail.
Plaintiff first argues that “[t]he FM Policy Contemplates
that Communicable Disease at Property is Covered ‘Physical Loss
or Damage[.]’” Doc. #65 at 28. To support that assertion,
plaintiff contends that “[t]he Policy’s Time Element coverage
‘directly resulting from physical loss or damage of the type
insured’ includes ‘Interruption By Communicable Disease’ as an
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additional coverage ‘extension.’” Id. (quoting Doc. #57-1 at 49,
68). Plaintiff thus appears to contend that because physical
loss or damage is necessary to trigger time element coverage,
and because Interruption by Communicable Disease is an extension
of that coverage, communicable disease must constitute physical
loss or damage under the Policy.
The Court disagrees. While the Policy’s Interruption by
Communicable Disease provision is silent as it pertains to a
physical loss or damage requirement, numerous other time element
extensions require physical loss or damage to invoke the right
to coverage. See, e.g., Doc. #57-1 at 63 (“Logistics Extra Cost”
extension requires “physical loss or damage of the type
insured”); Doc. #57-1 at 66 (“Attraction Property” extension
requires “physical loss or damage of the type insured to
property of the type insured”). Such language would be
superfluous if every extension definitionally and in every
situation constituted physical loss or damage. See Ramirez v.
Health Net of Ne., Inc., 938 A.2d 576, 586 (Conn. 2008) (“[T]he
law of contract interpretation militates against interpreting a
contract in a way that renders a provision superfluous.”
(citation and quotation marks omitted)). Thus, the fact that the
Policy includes an extension to its Time Element coverage for
Interruption by Communicable Disease does not mean that the mere

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presence of a communicable disease at a property amounts to
physical loss or damage to that property.
Plaintiff next asserts that the “Policy would not need to
exclude ‘any cost due to contamination’ if it did not
contemplate that the identified ‘contaminants’ caused ‘physical
loss or damage’ in the first instance.” Doc. #65 at 28-29. This
flips the Policy on its head. The Policy’s Contamination
Exclusion merely provides that where physical loss or damage is
caused by contamination, such losses or damages will be excluded
from coverage. It does not follow that all contamination
necessarily causes physical loss or damage. See Kim-Chee LLC v.
Philadelphia Indem. Ins. Co., No. 21-1082-cv, 2022 WL 258569, at
*2 (2d Cir. Jan. 28, 2022) (“[T]he words used in the policy must
themselves express an intention to provide coverage.” (citations
and quotation marks omitted)).3
In sum, none of plaintiff’s attempts to import ambiguity
into the Policy are persuasive. The Policy’s “physical loss or
damage” requirement is reasonably susceptible to only one

Plaintiff asserts that defendant’s “statements to regulators,
made contemporaneously with its introduction of the communicable
disease coverages and with its revisions to the coverages over
time, are compelling evidence of FM’s underwriting intent.” Doc.
#65 at 30. However, “the parol evidence rule bars the
introduction of any extrinsic evidence to vary or contradict the
plain meaning” of an insurance contract. Heyman Assocs. No. 1 v.
Ins. Co. of Pa., 653 A.2d 122, 135 (Conn. 1995).
3

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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 25 of 36

interpretation, and unambiguously requires a physical alteration
to property.
Accordingly, the Court joins the other courts in the
District of Connecticut and throughout the Second Circuit to
hold that the phrase “physical loss or damage” does “not extend
to mere loss of use of a premises, where there has been no
physical damage to such premises; those terms instead require
actual physical loss of or damage to the insured’s property.”
10012 Holdings, Inc. v. Sentinel Ins. Co., Ltd., 21 F.4th 216,
222 (2d Cir. 2021); see also, e.g., SA Hosp. Grp., 2022 WL
815683, at *2 (“[Plaintiff] alleges only a loss of use of
property with respect to its restaurants, which does not amount
to an ‘actual physical loss of’ property.”); Kim-Chee LLC, 2022
WL 258569, at *1 (“[T]o survive dismissal, [plaintiff’s]
complaint must plausibly allege that the virus itself inflicted
actual physical loss of or damage to property.” (citation and
quotation marks omitted)); Rye Ridge Corp. v. Cincinnati Ins.
Co., No. 21-1323-cv, 2022 WL 120782, at *2 (2d Cir. Jan. 13,
2022) (dismissing claim for coverage where plaintiffs did “not
allege any physical damage to their insured premises”); Conn.
Children’s Med. Ctr, 2022 WL 168786, at *6 (D. Conn. Jan. 19,
2022) (“In short, whether the theory is based on ‘loss of use’
of property or based on ‘physical damage’ from the COVID-19
virus itself, the result is the same: there is no ‘direct
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physical loss or damage’ to property.”); Cosm. Laser, Inc., 2021
WL 3569110, at *13 (“Under ... Connecticut law, ‘direct physical
loss’ requires physical alteration of property.”); Farmington
Vill. Dental Assocs., LLC v. Cincinnati Ins. Co., --- F. Supp.
3d ---, No. 3:20CV01647(VAB), 2021 WL 3036902, at *10 (D. Conn.
July 19, 2021) (“Under Connecticut law, however, losses due to a
property’s inoperability without any physical loss or damage to
the property itself are not recoverable with this type of
property insurance coverage.”).4
3.

Plaintiff’s Theories of Recovery

Plaintiff asserts that it has “Plausibly Pled that its
Property Suffered Physical Loss or Damage as a Result of the
Presence of COVID-19[.]” Doc. #65 at 32. Specifically, plaintiff
contends that it: (1) “suffered ‘physical damage’ because COVID19 physically harmed, changed, or altered its property,
including the air and surfaces[,]” id.; and (2) “suffered
‘physical loss’ because the presence of COVID-19 rendered its
property nonfunctional, uninhabitable, unusable, unsafe,
uninhabitable, or otherwise physically deprived ITT of its

Plaintiff has provided citations to a number of cases to
support its argument that physical loss or damage does not
require physical alteration to property. See generally Doc. #65.
However, this Court declines to follow such cases, which
constitute a minority position nationwide, because they are
unpersuasive, distinguishable, and/or do not apply Connecticut
law.
4

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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 27 of 36

property.” Id. at 36 (sic). Neither of plaintiff’s arguments is
persuasive.
a.

COVID-19’s Physical Impact on Property

Plaintiff first asserts that it “has plausibly alleged that
the presence of COVID-19 physically harmed, changed, or altered
the content of the air and the character of the surfaces of its
property.” Id. at 32. Specifically, plaintiff contends that it
“alleged that the air and the surfaces of indoor work
environments, including floors, doors, doorhandles, elevator
buttons, handrails, machinery, equipment, computers, keyboards,
computer mouses and accessories, documents, and other physical
items and surfaces, can be damaged by the presence of people
with COVID-19.” Id. at 32-33.
Courts in the Second Circuit have consistently rejected
this theory. Judge Meyer recently addressed such a claim:
[T]he policy terms “direct physical loss or physical
damage” required some form of physical or structural
alteration to the policyholder’s property in the form of
a perceptible harm and with observable, tangible
effects. [Cosm. Laser, Inc., 2021 WL 3569110, at *13.]
“The presence of fleeting, microscopic entities does not
amount to significant structural change,” and “‘[i]f,
for example, a sick person walked into one of Plaintiffs’
restaurants and left behind COVID-19 particulates on a
countertop, it would strain credulity to say that the
countertop was damaged or physically altered as a
result.’” Id. at –––, 2021 WL 3569110 at *14 (quoting
Unmasked Mgmt., Inc. v. Century-National Ins. Co., 514
F. Supp. 3d 1217, 1226 (S.D. Cal. 2021)). The fact that
virus particles infiltrate and linger in the air and on
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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 28 of 36

interior surfaces in a manner that is not permanent and
that could be sanitized with ordinary household cleaner
did not amount to “physical loss or physical damage” to
the property. Ibid.
Conn. Children’s Med. Ctr., 2022 WL 168786, at *5; see also ENT
& Allergy Assocs., LLC, 2022 WL 624628, at *10; Cosm. Laser,
Inc., 2021 WL 3569110, at *13-14.
The undersigned agrees, especially in light of the
Connecticut Supreme Court’s decision in Capstone Bldg. Corp. v.
Am. Motorists Ins. Co., 67 A.3d 961 (Conn. 2013). There,
increased carbon monoxide levels were present at a covered
property. See id. at 971. The policy covered “‘[p]roperty
damage[,]’” which was defined in relevant part to include
“‘[p]hysical injury to tangible property, including all
resulting loss of use of that property[.]’” Id. at 976. The
court rejected plaintiffs’ claims for coverage under that
provision, holding that “the escape of carbon monoxide, without
more, is not property damage.” Id. at 979. “‘Although the
Capstone decision involved different policy language than the
language at issue in this case, it tends if anything to support
the defendants here because it interprets the term ‘property
damage’ to require no less than a physical and tangible
alteration to the property.’” Dr. Jeffrey Milton, DDS, Inc. v.
Hartford Cas. Ins. Co., No. 3:20CV00640(SALM), 2022 WL 603028,

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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 29 of 36

at *10 (D. Conn. Mar. 1, 2022) (quoting Conn. Children’s Med.
Ctr., 2022 WL 168786, at *5).5
In an attempt to sidestep these decisions, plaintiff argues
that “[w]hether COVID-19 causes ‘physical loss or damage’ to
property and air is a factual issue,” and, as a result, “[i]t is
not appropriate to determine at the pleading stage that although
the Virus can harm humans, it does not physically alter
structures.” Doc. #65 at 35 (citations and quotation marks
omitted). Despite plaintiff’s argument to the contrary, however,
“[u]nder Connecticut law, the interpretation of an unambiguous
contract is a matter of law to be decided by the Court.” Gen.
Elec. Cap. Corp. v. C&C Concrete Pumping, Inc., No.
3:10CV01371(SAS), 2014 WL 12748887, at *4 (D. Conn. May 27,
2014) (citing Tallmadge Bros. v. Iroquois Gas Transmission Sys.,
L.P., 746 A.2d 1277, 1287 (Conn. 2000)). Thus, the undersigned
finds that, as a matter of law, “the COVID-19 virus does not
qualify as damage to the property itself, given the virus’s
short lifespan.” Mario Badescu Skin Care Inc., 2022 WL 253678,
at *5 (citation and quotation marks omitted); see also John Gore

 Plaintiff contends that this case is distinguishable because
“Capstone’s discussion of ‘physical, tangible alteration’ to
property only concerns property ‘damage,’ not property
‘loss’[,]” Doc. #65 at 25, whereas plaintiff’s policy “covers
ITT either for physical ‘damage’ to property or for physical
‘loss’ to property.” Id. However, for the reasons described
supra at 19-20, plaintiff’s arguments concerning the disjunctive
use of ‘physical loss’ and ‘physical damage’ are unpersuasive. 
5

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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 30 of 36

Org., Inc. v. Fed. Ins. Co., No. 21CV02200(PGG), 2022 WL 873422,
at *12 (S.D.N.Y. Mar. 23, 2022) (rejecting argument that there
was a “factual dispute[]” regarding “whether the COVID-19 virus
caused physical damage to Plaintiff’s property”); see also
Sharde Harvey DDS PLLC v. Sentinel Ins. Co. Ltd., No.
20CV03350(PGG), 2022 WL 558145, at *10 (S.D.N.Y. Feb. 24, 2022)
(rejecting argument that whether COVID-19 caused physical damage
was a factual dispute because “the Second Circuit rejected the
notion that the COVID-19 virus –- standing alone –- could cause
‘physical damage’ to property”).
In sum, “the presence of COVID-19 on the surfaces or in the
ambient air is not sufficient to allege” physical loss or
damage. Dr. Jeffrey Milton, DDS, Inc., 2022 WL 603028, at *10.
Rather, to be entitled to coverage under the Policy, plaintiff
must also allege facts showing that COVID-19 caused actual
physical loss of, or damage to, property. It has not done so
here. Accordingly, plaintiff fails to state a claim for breach
of contract under this theory.
b.

Loss of Use

Plaintiff further asserts that it suffered a physical loss,
and is therefore entitled to coverage, “because the presence of
COVID-19 rendered its property nonfunctional, uninhabitable,
unusable, unsafe, uninhabitable, or otherwise physically
deprived ITT of its property.” Doc. #65 at 36 (sic).
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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 31 of 36

Specifically, plaintiff contends that “ITT’s business activities
were suspended due to business premises rendered unreasonably
dangerous for any or full occupancy and unfit for their ordinary
or intended purposes (even in cases in which COVID-19 was not
actually present nor suspected to be present at the business
location), due to pandemic conditions and the threat posed by
COVID-19 in general geographic proximity (i.e., within five
miles) of the business location.” Id. at 36.
This theory fails, however, because plaintiff does not
allege any physical loss of property. Indeed, the Second Circuit
recently rejected such a theory when applying New York law. In
10012 Holdings, Inc., 21 F.4th at 216, the Second Circuit
considered an insurance claim by an art gallery for business
loss-of-use stemming from the COVID-19 pandemic. See id. at 219.
The policy at issue was limited to “direct physical loss or
physical damage[,]” id., and the Second Circuit relied on New
York state appellate court authority interpreting a policy
allowing coverage for “‘all risks of direct physical loss or
damage to the [insured’s] property,’” in which “the Appellate
Division held that the provision ‘clearly and unambiguously
provides coverage only where the insured’s property suffers
direct physical damage.’” Id. at 221 (quoting Roundabout Theatre
Co. v. Cont’l Cas. Co., 302 A.D.2d 1, 8 (N.Y. App. Div. 1st
Dep’t 2002)). The Second Circuit explained that “‘direct
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physical loss’ and ‘physical damage’ in the Business Income and
Extra Expense provisions do not extend to mere loss of use of a
premises, where there has been no physical damage to such
premises; those terms instead require actual physical loss of or
damage to the insured’s property.” Id. at 222.6
Plaintiff attempts to distinguish 10012 Holdings, Inc. in a
Response to Defendant’s Notice of Supplemental Authority. See
Doc. #69. Plaintiff appears to assert that 10012 Holdings, Inc.
is inapplicable here because it “affirm[ed] under NY law
dismissal of a COVID-19 business interruption complaint filed
under a much narrower policy. In addition, the insured, in 10012
Holdings, alleged that it was shut-down because of civil
authority orders only, and not because there was ever COVID-19
on its premises.” Id. at 1. Plaintiff’s arguments are
unpersuasive.
Plaintiff first suggests that 10012 Holdings, Inc., is
distinguishable because it was decided under New York law.
However, “both Connecticut and New York law share the same
principles for interpreting insurance policies[,]” Wiener v. AXA

The Second Circuit has repeatedly reaffirmed this
interpretation of various policies’ physical loss or damage
requirements. See BR Restaurant Corp., 2022 WL 1052061, at *2;
SA Hosp. Grp., 2022 WL 815683, at *2; Deer Mountain Inn LLC,
2022 WL 598976, at *2; Kim-Chee LLC, 2022 WL 258569, at *1; Rye
Ridge Corp., 2022 WL 120782, at *2.
6

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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 33 of 36

Equitable Life Ins. Co., No. 16CV04019(ER), 2021 WL 1226925, at
*7 (S.D.N.Y. Mar. 31, 2021), and plaintiff does not identify any
basis for diverging from New York law in this instance.
Accordingly, the Court finds that the “Connecticut Supreme Court
would not find that loss of use would be sufficient to allege
physical loss or damage to the property.” Dr. Jeffrey Milton,
DDS, Inc., 2022 WL 603028, at *9 n.4; see also Great Meadow
Cafe, 2022 WL 813796, at *5 (same); ENT & Allergy Assocs., LLC,
2022 WL 624628, at *3 (same); Conn. Children’s Med. Ctr., 2022
WL 168786, at *4-6 (same).
Plaintiff then goes on to argue that 10012 Holdings, Inc.,
is factually distinguishable. This argument is similarly
unpersuasive. While plaintiff asserts that the policy in 10012
Holdings, Inc., was “much narrower” than the Policy at issue in
this case, Doc. #69 at 1, “actual physical loss of or damage” to
property is required to trigger the right to coverage under both
policies. 10012 Holdings, Inc., 21 F.4th at 222; see also supra
at 24-26. Plaintiff next contends that 10012 Holdings, Inc. is
distinguishable because the plaintiff in that case did not
allege the presence of COVID-19 on its premises. See Doc. #69 at
1. However, this argument is foreclosed by Kim-Chee LLC, which
held that 10012 Holdings, Inc. squarely applied to a plaintiff’s
claims that COVID-19 “‘was present at, in, throughout, and on
Plaintiffs’ Premises[.]’” 2022 WL 258569, at *2. Accordingly,
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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 34 of 36

plaintiff’s attempts to distinguish 10012 Holdings, Inc. are
unpersuasive. Plaintiff fails to allege adequately physical loss
or damage under this theory.
In sum, none of plaintiff’s attempts to classify the impact
of COVID-19 as “physical loss or damage” succeeds. As a result,
plaintiff has failed to adequately allege a right to coverage
under the Policy’s Time Element, Civil or Military Authority,
Ingress/Egress, or Logistics Extra Cost provisions. Moreover,
because plaintiff has failed to establish the right to coverage
under any of these provisions, it is not entitled to coverage
under the Policy’s Claims Preparation Cost provision.
Plaintiff’s breach of contract claim is therefore DISMISSED.7
B.

Contamination Exclusion

Plaintiff has failed to adequately allege physical loss or
damage under the Policy. Accordingly, the Court need not -- and
does not -- reach the parties’ arguments regarding the Policy’s
Contamination Exclusion.
The undersigned notes, however, that the majority of courts
to address identical contamination exclusions have held that
such exclusions “unambiguously exclude[] coverage for ‘any
condition of property due to the actual or suspected presence of

7 Because

the Court finds that plaintiff has failed to adequately
allege physical loss or damage, it does not reach defendant’s
assertion that plaintiff’s arguments are barred by the law of
the case doctrine. See Doc. #64-1 at 20. 
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Case 3:21-cv-00156-SALM Document 77 Filed 05/10/22 Page 35 of 36

any ... virus,’ which would encompass the Virus that causes
COVID-19.” Ralph Lauren Corp. v. Factory Mut. Ins. Co., No.
20CV10167(SDW), 2021 WL 1904739, at *4 (D.N.J. May 12, 2021)
(citation omitted); see also, e.g., Boscov’s Dep’t Store, Inc.
v. Am. Guarantee & Liab. Ins. Co., 546 F. Supp. 3d 354, 368–69
(E.D. Pa. 2021) (“The definition of ‘Contamination’ is
unambiguous and certainly applies to COVID-19.”); Cordish
Companies, Inc. v. Affiliated FM Ins. Co., No. 20CV02419(ELH),
2021 WL 5448740, at *20 (D. Md. Nov. 22, 2021) (“[T]he
[contamination] exclusion can only be read as barring
plaintiff’s claims.”); but see Thor Equities, LLC v. Factory
Mut. Ins. Co., 531 F. Supp. 3d 802, 809 (S.D.N.Y. 2021)
(“[B]ecause the Court finds that the Contamination Exclusion is
ambiguous, judgment on the pleadings as to the applicability of
the exclusion is inappropriate at this stage of the
litigation[.]”). Thus, while the Court need not decide whether
the Contamination Exclusion in this Policy would preclude
plaintiff’s claims, it notes that there is significant authority
suggesting that plaintiff’s claims for coverage would be barred
on this independent basis.
In sum, plaintiff’s breach of contract claim fails because
it has not adequately alleged any “physical loss or damage”
under the Policy. Accordingly, plaintiff’s claim for breach of

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contract is hereby DISMISSED, and defendant’s Motion to Dismiss
is GRANTED.8
VII. Conclusion
Thus, for the reasons stated, the Motion to Dismiss [Doc.
#64] is GRANTED, and plaintiff’s Motion for Oral Argument [Doc.
#67] is DENIED.
The Clerk shall close this case.
It is so ordered at New Haven, Connecticut, this 10th day
of May, 2022.
/s/
______
HON. SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE

The Court does not reach defendant’s argument that plaintiff’s
claims for coverage are independently barred by the Policy’s
Loss of Use Exclusion. See Doc. #64-1 at 37.
8

~ 36 ~