Estes v. Cincinnati Insurance Company
MEMORANDUM OPINION & ORDER: That the defendant's motion to dismiss 23 be, and is hereby, GRANTED. A separate judgment shall enter currently herewith. Signed by Judge William O. Bertelsman on 6/4/202.(ECO)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:20-CV-138 (WOB-CJS)
RYAN P. ESTES, D.M.D.,
MEMORANDUM OPINION AND ORDER
CINCINNATI INS. CO.,
This is one of many insurance disputes that have arisen in
the United States because of government shutdowns caused by the
current pandemic. In this matter, a Kentucky-based dental clinic
had to cease operating its business in non-emergency situations.
The plaintiff is now suing its insurance provider, alleging breach
of the insurance contract and bad faith denial of its insurance
benefits. (Doc. 9).
Before the Court is the defendant’s motion to dismiss. (Doc.
23). The Court previously held a telephonic hearing on this motion
on Friday, May 21, 2021. (Doc. 43). The issues being ripe, the
Court now issues the following Memorandum Opinion and Order.
Factual and Procedural Background
The plaintiff, Ryan P. Estes, D.M.D., M.S., P.S.C., the
Kentucky Professional Service Corporation, owns and operates two
dental offices in Kentucky. (Doc. 9 at ¶¶ 5-6). The plaintiff
contracted with Cincinnati Insurance Company to indemnify loss or
damage to its dental clinics. (Id. at ¶ 14).
spreading rapidly throughout the United States. (Id. at ¶ 21).
State and local governments acted by issuing executive orders to
slow the spread of the virus by limiting patrons from entering
many business establishments. (Id. at ¶ 22).
On March 6, 2020, Kentucky Governor Andrew Beshear issued
Kentucky because of COVID-19. (Doc. 23-10). Part of this Executive
Order forced the plaintiff’s dental clinics to cease business
operation in all non-emergency services for forty-two days—from
March 16, 2020, until April 27, 2020. (Doc. 9 at ¶ 24).
Since Cincinnati Insurance failed to indemnify plaintiff for
its loss during this time, the plaintiff filed suit, averring: (1)
breach of the insurance contract; (2) violation of Kentucky’s
Unfair Claims Settlement Practices Act; (3) common law bad faith;
(4) violation of KRS § 304.12-235; (5) violation of Kentucky’s
Consumer Protection Act—KRS § 367.110 et seq; and (6) punitive
damages. (Id. at ¶¶ 42-74).
On September 30, 2020, the plaintiff filed its original
complaint in this Court. (Doc. 1). On October 23, 2020, the
plaintiff filed its first amended complaint with leave of the
Court. (Doc. 9). On December 8, 2020, Cincinnati Insurance moved
to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. (Doc. 23).
Standard of Review
To survive a motion to dismiss, the complaint must contain
“sufficient factual matter, accepted as true, to state a claim to
relief that is plausible upon its face.” Ashcroft v. Iqbal, 556
omitted). While the Court construes the complaint in favor of the
conclusions or unwarranted factual inferences. Kardules v. City of
Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996); Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992).
The Policy Coverage1
Insurance failed to indemnify the plaintiff following its loss of
use of its property because of COVID-19 and Governor Beshear’s
Executive Orders. (Doc. 9 at ¶¶ 42-46). To determine whether
insurance contract as a matter of law. Stone v. Ky. Farm Bureau
Mut. Ins. Co., 34 S.W.3d 809, 810 (Ky. Ct. App. 2000).
The plaintiff relies on the following six provisions of the
policy to show it satisfied the requisite conditions precedent for
Consideration of the policy is proper at this stage. See Greenberg v. Life
Ins. Co. of Va., 177 F.3d 507 (6th Cir. 1999).
dependent property coverage; and (6) sue and labor. (Id. at ¶¶ 20,
31, 35, 38, and 41).
Cincinnati Insurance issued policy number ECP 031 43 42 for
the policy period from March 12, 2018 to March 12, 2021. (Doc. 234 at 2). The plaintiff does not contest that the three pertinent
coverage forms from the policy are Building and Personal Property
Form (FM 101 05 16), Business Income (and Extra Expense) Coverage
Form (FA 213 05 16), and Commercial Property Amendatory Endorsement
Form (FCP 201 05 16). (Id. at 19-58, 73-78, and 103-111).
Under the Building and Personal Property Coverage Form and
the Business Income (and Extra Expense) Coverage Form, the policy
provides Business Income and Extra Expenses Coverage. (Id. at 36,
103). Both also contain Civil Authority Coverage. (Id. at 37, 104).
But only the Business Income (and Extra Expense) Coverage Form
provides Ingress and Egress Coverage. (Id. at 106). The Commercial
Business Income and Dependent Property. (Id. at 74-75). The Sue
and Labor provision is covered under the “Duties in the Event of
Loss or Damage” in the policy. (Id. at 48-49).
Within each of these coverages listed in plaintiff’s amended
complaint, the policy requires there to be a Covered Cause of Loss.
Covered Causes of Loss is defined as a “direct ‘loss’ unless the
‘loss’ is excluded or limited in this Coverage Part.”2 (Id. at 24,
104). “Loss” is defined as “accidental physical loss or accidental
physical damage.” (Id. at 56, 111) (emphasis added). Together, the
following coverages require the plaintiff to show a Covered Cause
of Loss, which requires either a “direct physical loss” or “direct
Under the Business Income Coverage, the insured must show
that a “suspension” was “caused by direct ‘loss’ to property at a
‘premises’ caused by or resulting from any Covered Cause of Loss.”
(Id. at 36, 103) (emphasis added).
expenses incurred to stem from a “direct ‘loss’ to the property
caused by or resulting from a Covered Cause of Loss.” (Id. at 37,
103-04) (emphasis added).
Civil Authority extends coverage for loss of Business Income
and Extra Expenses sustained by the action of a civil authority.
Also relevant to the coverage provisions, the policy defines “Period of
restoration” as the period of time that begins “after the time of ‘direct
loss’,” and ends on the earlier of “[t]he date when the property at the
‘premises’ should be repaired, rebuilt or replaced with reasonable speed” or
“[t]he date when business is resumed at a new permanent location.” (Doc. 23-4
at 57-58). “Period of restoration” is limited to this period described and “does
not include any increased period required due to the enforcement or compliance
with any ordinance or law that: . . . (2) [r]equires any insured or other to
test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or
in any way respond to assess the effects of ‘pollutants’.” (Id. at 58).
“Suspension” is defined as “[t]he slowdown or cessation of your business
activities; and [t]hat part of the ‘premises’ is rendered untenantable.” (Id.
(Id. at 37, 104). This coverage requires a direct physical loss to
property other than at the plaintiff’s premises. (Id.) Moreover,
the insured may recover damages for Business Income and Extra
Expenses “caused by action of civil authority that prohibits access
to the” plaintiff’s premises, if the following apply:
(a) Access to the area immediately surrounding the
damaged property is prohibited by civil authority as
a result of damage; and
(b) The action of civil authority is taken in response
to dangerous physical conditions resulting from
damage or continuation of the Covered Cause of Loss
that caused the damage, or the action is taken to
enable a civil authority to have unimpeded access to
the damaged property. (emphasis added).
Ingress and Egress Coverage also extends coverage to Business
Income and Extra Expenses sustained “by the prevention of existing
ingress or egress at a premises shown in the Declarations due to
direct ‘loss’ by a Covered Cause of Loss at a location contiguous
to such ‘premises’.” (Id. at 107) (emphasis added).
Business Income from Dependent Properties states that the
defendant “will pay for the actual loss of ‘Business Income’
[plaintiff’s] ‘operations during the ‘period of restoration’. The
‘suspension’ must be caused by direct ‘loss’ to the ‘dependent
property’ caused by or resulting from any Covered Cause of Loss.”
(Id. at 74-75) (emphasis added).
Finally, the Sue and Labor coverage condition requires the
insured to take reasonable steps to prevent further damage and
keep records of expenses incurred to the property. (Id. at 48-49).
“However, in no event will [the defendant] pay for any subsequent
‘loss’ resulting from a cause of loss that is not a Covered Cause
of Loss.” (Id. at 49) (emphasis added).
The Plaintiff Cannot Show A “Direct Physical Loss” Under The
The parties do not contest that Kentucky’s substantive law
governs this contract dispute. Rutherford v. Columbia Gas, 575
F.3d 616, 623 (6th Cir. 2009). Under Kentucky law, the burden is
on the insured to establish coverage. N. Am. Accident Ins. Co. v.
White, 80 S.W.2d 577, 578 (Ky. 1935).
Because each coverage provision requires a direct physical
loss or damage to the property, the pivotal issue is whether
plaintiff meets its burden by showing its dental clinics incurred
a direct physical loss (as the plaintiff argues) to trigger the
coverage provisions above.
In the absence of ambiguities, the terms must be enforced as
written. McMullin v. McMullin, 338 S.W.3d 315, 320 (Ky. Ct. App.
2011) (citing Whitlow v. Whitlow, 267 S.W.2d 739, 740 (Ky. 1954)).
susceptible to multiple or inconsistent interpretations.”
Contractual terms are assigned their ordinary meaning, Frear v.
P.T.A. Industry, Inc., 103 S.W.3d 99, 106 (Ky. 2003), and courts
are “simply unwilling to torture words to import ambiguity into a
contract where the ordinary meaning leaves no room for ambiguity.
First Home, LLC v. Crown Communications, Inc., Case No. 2010-CA1701-MR, 2012 WL 95560, at *5 (Ky. Ct. App. March 15, 2012)
Cincinnati Insurance argues that a “direct physical loss”
requires an actual, tangible, permanent, physical alteration of
the property, not a purely economic loss related to the COVID-19
virus. (Doc. 23 at 4).3
because it lost the use of its properties due to COVID-19 and
Governor Beshear’s Executive Order. (Doc. 9 at ¶ 25). This “loss
of use” theory, the plaintiff argues, constitutes an “accidental
physical loss” under its insurance policy because the policy is
written in the disjunctive. (Doc. 29 at 1-2). Because the term
“physical loss” is not defined in the policy, the plaintiff argues
This is the majority view. See e.g., Diesel Barbershop, LLC v. State Farm
Lloyds, Case No. 5:20-CV-461, 479 F.Supp.3d 353, 360 (W.D. Tex. 2020) (granting
the defendant’s motion to dismiss, holding that barbershop businesses that were
deemed non-exempt and non-essential under the executive orders could not state
a claim for “accidental direct physical loss to covered property” because there
was no tangible destruction to the property with COVID-19); Sandy Point Dental,
PC v. Cincinnati Ins. Co., Case No. 20-CV-2160, 488 F.Supp.3d 690, 694 (N.D.
Ill. 2020) (granting the defendant’s motion to dismiss because “[t]he
coronavirus does not physically alter the appearance, shape, color, structure,
or other material dimension of the property”); Oral Surgeons, P.C. v. Cincinnati
Ins. Co., Case No. 4:20-CV-222, 2020 WL 5820552 (S.D. Iowa Sept. 29, 2020)
(same); Zwillo v. Lexington Ins. Co., Case No. 4:20-CV-339, 2020 WL 7137110
(W.D. Mo. Dec. 2, 2020) (discussing the minority view, but holding economic
injury alone is insufficient to constitute a direct physical loss under the
that the Court should look to the dictionary definition of the
word “loss” for its plain meaning, which is defined as “the act of
losing possession: DEPRIVATION.” (Id. at 1).4
As is discussed above, the word “loss” is defined in the
policy to mean “accidental physical loss or accidental physical
damage.” (Doc. 23-4 at 56, 111). Furthermore, the Covered Cause of
Loss expands the definition of “loss” to mean a direct loss unless
it is excluded under the policy.5 (Id. at 24, 104). Together, the
policy requires a direct physical loss or damage to the property,
but the term “direct physical loss” (or damage) is not defined.
To help ascertain the parameters of this term, both parties
analogize and distinguish among numerous cases interpreting the
requirements of a direct physical loss to commercial businesses in
the general context and in light of the COVID-19 pandemic. (Docs.
23, 29). This includes a final set of supplemental authorities the
Court permitted the parties to file after oral argument. (Docs.
This has been the minority view. Studio 417, Inc. et al. v. Cincinnati Ins.
Co., Case No. 20-CV-3127, 478 F.Supp.3d 794 (W.D. Mo. Aug. 12, 2020); K.C.
Hopps, Ltd. v. Cincinnati Ins. Co., Case No. 20-CV-437, 2020 WL 6483108 (W.D.
Mo. Aug. 12, 2020); Blue Springs Dental Care, LLC et al. v. Owners Ins. Co.,
Case No. 20-CV-383, 2020 WL 5637963 (W.D. Mo. Sept. 21, 2020). The plaintiff
relies on additional authority in its supplemental authority. (Doc. 44). Of
note, the plaintiff cites In re: Society Insurance Company COVID-19 Business
Interruption Protection Insurance Litigation, MDL No. 2964, 2021 WL 679109 (N.D.
Ill. Feb. 22, 2021), denying the defendants’ motion to dismiss because the
government shutdown could satisfy the physical loss requirement.
5 It is undisputed that COVID-19 is not listed as an exclusion under the policy.
However, exclusions do not come into play unless there is coverage first. Kemper
Nat. Ins. Co. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002)
(explaining the purpose of an exclusion “is to restrict and shape the coverage
But this issue, as Cincinnati Insurance noted in its second
notice of supplemental authority, was recently considered in the
Western District of Kentucky. (Doc. 37).
In Bluegrass Oral Health Center, PLLC v. The Cincinnati
Insurance Company, Case No. 1:20-CV-120, 2021 WL 1069038 at *1-2
(W.D. Ky. March 18, 2021), the court similarly noted the plethora
of caselaw the parties relied on to define direct physical loss.
The court looked at the minority view set forth in Studio 417,
Inc., 478 F. Supp.3d 794, which considered identical language from
the defendant’s insurance policy.6 Id. at 2.
The court noted that a Missouri district court found that
since direct physical loss and direct physical damage were not
defined under the policy, it would use the dictionary definition
of the word loss. Id. at *2 (citing Studio 417, 478 F. Supp.3d at
800). Studio 417 ultimately found the dictionary definition of
loss to be “the act of losing possession” and held that the
plaintiff alleged a “direct physical loss” because the plaintiff
lost possession of its premises.7 Id.
The same language is at issue here.
As discussed supra in footnote 3, another district court in the Western
District of Missouri was unpersuaded by the minority view. See Zwillo, 2020 WL
7137110 at *8 (interpreting the same policy language, the court found that the
coverage provisions the plaintiffs relied on unambiguously did not cover
executive orders closing businesses because of COVID-19. As such, the court
noted its conflict with Studio 417 and opted not to follow it). Similarly,
courts in the Northern District of Illinois expressly disagreed with the
minority view set forth in In re Society. Chief of Staff LLC v. Hiscox Ins.
Co., Case No. 20-CV-3169, 2021 WL 1208969, at *4 (N.D. Ill. Mar. 31, 2021)
(holding that the disagreement among courts in the Northern District of Illinois
did not render the policy ambiguous as In re Society found).
Judge Stivers opted not to follow the holding in Studio 417
for two reasons. Id. First, unlike Studio 417, the plaintiff made
no allegation that its premises were contaminated by COVID-19. Id.
The same is true here, as the plaintiff only alleges that it lost
use of both properties because of Governor Beshear’s Executive
Order. (Doc. 9 at ¶¶ 23-24).
Second, the court agreed with the decision to use a dictionary
to discern the ordinary meaning of “loss”, but it determined Studio
417 used a secondary definition to reach its conclusion. Id. Judge
Stivers instead used Merriam-Webster’s primary definition of loss,
which it found to better harmonize the policy language. MerriamWebster defined loss as “destruction” or “ruin”. Id. (citing
May 23, 2021).
This, the court found, would mean destruction or ruin produced
by forces or operations of physics, meaning the policy “would
extend to the continuum of harm from total (loss) to partial
(damage) resulting in alteration to an insured property.” Id.
(citation omitted). “This is a far more reasonable construction
than interpreting ‘direct physical loss’ to mean ‘direct physical
loss of use’, which frankly makes no sense.” Id.
As this latter point suggests, it is important to consider
how the words work together. To be clear, the policy does not cover
a “direct loss” in general. If it did, the definition could broadly
cover a loss like Studio 417 or narrowly like Bluegrass Oral—
creating an obvious ambiguity to be resolved in the plaintiff’s
Instead, it covers a “direct physical loss”, which suggests
that the plaintiff must allege facts that show it suffered from a
direct and a physical loss or damage to the property. That is
because the words “direct physical” modify the words “loss” and
“damage”. See e.g., System Optics, Inc. v. Twin City Fire Ins.
Co., Case No. 5:20-CV-1072, 2021 WL 2075501, at *9 (N.D. Ohio May
24, 2021) (stating that a “‘direct physical loss’ requires some
unusable” not a “superficial or intangible effect of a government
closure due to the spread of COVID-19,” which represents a purely
economic loss that does not trigger coverage”).
While a minority of courts agree with the plaintiff’s theory,
the reasoning set forth in those opinions is unpersuasive. To agree
with the minority view would mean that the term “direct physical
loss or direct physical damage” was ambiguous.
For example, in Elegant Massage v. State Farm, Case No. 2:20CV-265, 2020 WL 7249624, at *10 (E.D. Va. Dec. 9, 2020), the court
found that “while the Light Stream Spa was not structurally
damaged, it is plausible that plaintiffs experienced a direct
inassessable, and dangerous to use by the Executive Orders because
of the risk for spreading COVID-19, an invisible but highly lethal
virus.” That is not the case here.
Plaintiff’s complaint concedes that it was not prohibited
procedures. See (Doc. 9 at ¶ 24) (“from March 16, 2020, until April
27, 2020, Plaintiff was prohibited from performing non-emergency
services”) (emphasis added).
By contrast, no government order required the plaintiff to
Moreover, COVID-19 virus harms people, not property. Seoul Taco
Holdings, LLC v. The Cincinnati Ins. Co., Case No. 4:20-CV-1249,
2021 WL 1889866, at *6 (E.D. Mo. May 11, 2021) (“even assuming
that the virus physically attached to covered property, it did not
constitute the direct, physical loss or damage required to trigger
coverage because its presence can be eliminated”).
In sum, the plaintiff’s argument that both physical and purely
economic losses are covered under the policy agreement is clearly
misplaced.8 See e.g., Sandy Point Dental, 488 F.Supp.3d at 694
Plaintiff’s “reasonable expectation” theory also fails because it requires
“actual ambiguities, not fanciful ones,” to trigger its application. Liberty
Corp. Capital Ltd. v. Security Safe Outlet, Inc., 937 F.Supp.2d 891, 906) (E.D.
Ky. 2013). Moreover, the Business Income and Extra Expense Coverage is limited
to a “period of restoration”. This definition provides additional context to
the meaning of direct physical loss. According to its definition, coverage
begins when there is a direct loss and ends at the earlier of (1) when the
premises is repaired, rebuilt or replaced or (2) the business is resumed at a
new permanent location. (Doc. 23-4 at 56-57, 111). This definition “contemplates
physical damage to the insured premises as opposed to loss of use of it.” Newman
Myers Kreines Gross Harris, P.C. v. Great N. Ins. Co., 17 F.Supp.3d 323, 332
(S.D. N.Y. Apr. 24, 2014) (citation omitted).
plaintiff’s complaint did not allege that COVID-19 altered the
“physical” modifying the word loss).
Application To The Policy
The plaintiff’s amended complaint alleges that it suffered a
financial loss because of the shutdown under Governor Beshear’s
Executive Order in response to the ongoing pandemic. (Doc. 9).
However, the coverage provisions require a showing of physical
alteration to the properties.
The Business Income and Extra Expense Coverages fail because
the plaintiff has not (and cannot) allege that the suspension of
non-emergency procedures was a “direct loss” to the property. (Doc.
23-4 at 36-37, 103-04). Again, the plaintiff’s theory is purely
economic and does not meet the policy definition of “direct
The Business Income from Dependent Property Coverage requires
a necessary suspension of the insured’s business as a result of a
direct physical loss to a “dependent property” resulting from a
Covered Cause of Loss. (Id. at 74-75). Dependent property is
defined as property that is operated by others whom the insured
depends on to deliver material or services to it, accept its
products or services, manufacture products for delivery to its
customers, or attract customers to its business. (Id. at 75).
While plaintiff’s complaint alleges conclusively that it
suffered “a loss of materials, services, and lack of customers as
businesses and customers”, (Doc. 9 at ¶ 37), the plaintiff does
physical loss” as defined by the policy. See Source Food Tech.,
Inc. v. U.S. Fid. & Guar. Co., 465 F.3d 834, 838 (8th Cir. 2006)
truckload of beef product across the border and sell the beef
product in the United States as direct physical loss to property
would render the word ‘physical’ meaningless”).
Plaintiff’s Ingress and Egress Coverage argument similarly
contiguous property and the prevention of access to the insured’s
property because of that physical loss. (Doc. 23-4 at 106).
Plaintiff’s complaint alleges “[u]pon information and belief,
persons with COVID-19 have breathed, touched surfaces, spread the
virus through the air and on surfaces and suffered from the virus
at property contiguous to Plaintiff’s property.” (Doc. 9 at ¶ 33).
This claim fails because the facts do not allege a direct a direct
physical loss at any location, and the policy unambiguously states
that Ingress and Egress Coverage “does not apply if ingress or
egress from the ‘premises’ is prohibited by civil authority.” (Doc.
23-4 at 106).
The Sue and Labor coverage claim fails because there is no
covered loss. Like Ingress and Egress Coverage, the Sue and Labor
Coverage unambiguously states that the defendant will not “pay for
any subsequent ‘loss’ resulting from a cause of loss that is not
a Covered Cause of Loss.” (Id. at 49)
plaintiff’s Civil Authority Coverage claim
fails because the policy’s coverage only applies to a Covered Cause
of Loss, meaning a direct physical loss to property “other than
Covered Property at a ‘premises’”. (Id. at 37, 104). Premises is
Declarations.” (Id. at 58).
The plaintiff attempts to plead this requirement by alleging
“Persons with COVID-19 have breathed, touched surfaces, spread the
virus through the air and on surfaces, suffered from the virus,
and died from the virus at other properties. As a result of this
loss to other properties, Plaintiff was denied access to the
property for the purpose of non-emergency dental services.” (Doc.
9 at ¶¶ 29-30).
Regardless, the economic loss from the Executive Order is not
a Covered Cause of Loss because it is not a tangible loss to its
property or any other. See Riverside Dental of Rockford, Ltd. v.
Cincinnati Ins. Co., Case No. 20-CV-50284, 2021 WL 346423, at *5
(N.D. Ill. Jan. 19, 2021) (“Plaintiff’s Business Income loss is
not covered under the Civil Authority coverage provisions of the
policy at issue in this case because the Governor’s Orders did not
prohibit access to plaintiff’s dental office”).
In sum, plaintiff’s breach of contract claim fails to plead
a direct physical loss. The Court thus concludes that the plaintiff
has failed to establish a breach of contract under the insurance
IT IS ORDERED that the defendant’s motion to dismiss (Doc.
23) be, and is hereby, GRANTED. A separate judgment shall enter
This 4th day of June 2021.
Likewise, plaintiff’s remaining non-contractual claims also fail because they
are based on allegations of bad faith for not providing coverage. (Doc. 9 at 710). “[A] single test under Kentucky law exists for the merits of bad faith
claims, whether brought by a first- or third-party claimant or brought under
common law statute.” Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 527 (6th
Cir. 2006). Under Kentucky law, an insured must prove three elements to
establish bad faith: (1) the insurer must be obligated to pay the claim under
the terms of the policy; (2) the insurer must lack a reasonable basis in law or
fact for denying the claim; and (3) it must be shown that the insurer either
knew there was no basis for denying the claim or acted with reckless disregard
for whether such a basis existed. Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky.
1993). Here, as explained supra, the plaintiff cannot establish the first
element. Therefore, the defendant’s motion to dismiss is well taken on all
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