North Pacific Management, Inc. et al v. Liberty Mutual Fire Insurance Company
OPINION & ORDER: The Court GRANTS Defendant's Motion to Dismiss 14 . Plaintiffs' Complaint is dismissed with prejudice. Defendant's Request for Judicial Notice 16 is denied as moot. Signed on 9/7/2021 by Judge Marco A. Hernandez. (jp)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
NORTH PACIFIC MANAGEMENT,
INC., et al.,
OPINION & ORDER
LIBERTY MUTUAL FIRE INSURANCE
COMPANY, a Wisconsin Company,
Kyle A. Sturm
Nicholas A. Thede
Foreman Sturm & Thede LLP
P.O. Box 13098
Portland, OR 97213
Nicholas A. Kahl
Nick Kahl, LLC
209 SW Oak Street, Suite 400
Portland, OR 97204
Attorneys for Plaintiffs
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John A. Bennett
Stuart Duncan Jones
Bullivant Houser Bailey PC
One SW Columbia Street, Suite 800
Portland, OR 97204
Robins, Kaplan, Miller & Ciresi, LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Robins Kaplan LLP
800 Boylston Street, Suite 2500
Boston, MA 02199
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiffs North Pacific Management, Inc., Airport Inn, LLC, BPS Associates, LLC, Bean
& Company, LLC, COHO.Res, LLC, JBH Property Acquisitions, LLC, Suntek Park, LLC,
TFBP Holdings, Inc., and Triple S Enterprises, Inc. bring this class action lawsuit against
Defendant Liberty Mutual Fire Insurance Company seeking a declaratory judgment that their
insurance policies, provided by Defendant, cover their business income losses stemming from
the COVID-19 pandemic. Plaintiffs allege that Defendant breached its insurance contracts with
Plaintiffs and similarly situated policyholders when Defendant denied coverage for Plaintiffs’
pandemic-related business income losses. Plaintiffs seek a declaratory judgment that their
insurance policies cover their alleged losses and seek damages for breach of contract. Defendant
moves to dismiss Plaintiffs’ Complaint for failure to state a claim.
Many businesses suffered extreme hardship and financial loss as a result of the
government shutdown orders that state and local governments nationwide issued to curb the
spread of COVID-19 infections throughout the country. People across the world have lost their
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lives and livelihood as a result of the pandemic. The Court sympathizes with the plight of
businessowners who suffered significant and even catastrophic financial losses due to the
government closure orders. Plaintiffs’ business insurance policies, however, does not cover their
loss of business income. The Court grants Defendant’s motion to dismiss.
Plaintiff North Pacific Management, Inc. (North Pacific) operates a property management
company in Tigard, Oregon. Compl. ¶ 1, ECF 1. Plaintiff Airport Inn, LLC operates the
Radisson Hotel Portland Airport and a restaurant called Lakeside Bar & Grill in Portland,
Oregon. Id. Plaintiff BPS Associates owns and operates athletic clubs in Portland and Lake
Oswego, Oregon. Id. Plaintiff Bean & Company owns and operates a restaurant in Aurora,
Oregon, called Filberts Farmhouse Kitchen. Id. Plaintiff COHO.Res, LLC “owns and operates an
electronic inventory distribution for independent hotels” and is located in Tigard, Oregon. Id.
Plaintiff Heathman Garage Associates owns and operates a parking garage in Portland. Id.
Plaintiff JBH Property Acquisitions owns and/or operates hotels in Portland and Beaverton,
Oregon. Id. Plaintiff Suntek Park owns and operates office buildings and retail centers in
Portland. Id. Plaintiffs TFBP Holdings and Triple S Enterprises own and operate restaurants in
Portland, Oregon. Id. Plaintiff North Pacific obtained business insurance on behalf of all
Plaintiffs from Defendant Liberty Mutual. Id. ¶ 6.
Due to the COVID-19 pandemic and business closure orders issued by the state of
Oregon, Plaintiffs “were forced to suspend, in whole or in part, their business operations”
leading to financial losses. Id. ¶ 11–12. Plaintiffs tendered an insurance claim seeking coverage
for their financial losses stemming from its reduced business operations. Id. ¶ 17. Defendant
denied Plaintiffs’ claim. Id. ¶ 22. Plaintiff alleges that the “business income,” “extended period
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of restoration,” and “extra expense” coverages in its business insurance policy require Defendant
to cover Plaintiffs’ financial losses resulting from reducing their business operations. Id. ¶ 19–
The Policy covers “risks of direct physical loss or damage to covered property as a result
of an occurrence, unless excluded.” Schollard Decl. Ex. 1 (Policy) at 131, ECF 15-1. The Policy
does not define the phrase “direct physical loss or damage.” Section B of the Policy’s
Declarations (form RM1000) demonstrates that the Policy covers real property, personal
property, and personal property of others. Id. The Policy also covers loss of business income,
including “[t]he actual loss of business income you incur during a period of restoration directly
resulting from damage by a peril insured against to the type of property covered by this policy at
a covered location.” Id. at 19.
Perils insured against are “causes of loss for which this policy provides coverage.” Id. at
52. A covered loss under the Policy means “a loss to covered property at a covered location
resulting from a peril insured against.” Id. at 49. Covered property “means property insured by
this policy.” Id. “Personal property” includes “tangible things, other than real property, including
improvements and betterments you have made in buildings you do not own.” Id. at 53. Real
property “means buildings and any other structure, including: (1) Completed additions,
extensions, permanent fittings or fixtures; (2) Machinery and equipment used to service the
buildings; and (3) Yard fixtures.” Id. at 54.
The Policy also covers extra expenses, including necessary expenses the insured incurs in
excess of its normal operating expenses that reduces its loss of business income. Id. at 19, 21.
Citations to the Policy are to the ECF page numbers because Defendant did not page number
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The Policy provides an additional sixty days of loss of business income coverage under certain
If loss of business income coverage is provided, we will pay the actual loss of
business income you sustain due to a reduction in sales, earnings or rental income
that directly results from direct physical loss or damage to your covered property
by a peril insured against, for the additional time required, when you use reasonable
speed, to restore your business to the condition it would have been in if no loss had
Id. at 26.
The Policy also covers loss of business income due to the action of civil authority, which
The actual loss of business income you incur if you are denied access to a covered
location by order of civil or military authority if:
a. the order results from a covered loss; or
b. the order results from damage by a peril insured against to the type of
property covered by this policy within one (1) statute mile of a covered
Id. at 19.
Plaintiffs’ Policy also covers “[t]he actual loss of business income you incur if your
ingress to or egress from a covered location is prevented as the direct result of a peril insured
against to the type of property covered by this policy within one (1) statute mile of a covered
location.” Id. The business income and extra expense provisions of the Policy exclude coverage
for “[a]ny consequential, indirect or remote loss.” Id. at 20, 21.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the
sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in
the complaint as true and construe them in the light most favorable to the non-moving party.
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Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under
Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief”
with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote
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) (internal quotation marks omitted). A plaintiff must “plead factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “wellpleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id.
Defendant moves to dismiss Plaintiffs’ Complaint because no “direct physical loss or
damage to covered property” occurred that would trigger coverage under any provisions of the
Policy and that a virus exclusion bars Plaintiffs’ claims. Plaintiffs argue that the Policy’s
undefined terms “loss of,” “damage to” and “direct physical loss” cover Plaintiffs’ losses and
that the virus exclusion does not bar their claims.
Defendant argues that Plaintiffs’ pandemic-related business losses are not covered under
the terms of the Policy because no risk of direct physical loss or damage to Plaintiffs’ business
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property occurred. Determining whether insurance coverage exists is a two-step process. First,
the insured bears the burden to establish that the loss falls within the policy’s grant of coverage.
ZRZ Realty Co. v. Beneficial Fire & Cas. Co., 222 Or. App. 453, 465 (2008). If the insured
meets that burden, then the insurer bears the burden of establishing that an exclusion applies. Id.
Oregon rules of policy interpretation provide that “[i]f an insurance policy defines the
phrase in question, [then the court] applies that definition.” Holloway, 341 Or. at 650. If the
insurance policy does not define the phrase, the court first considers whether it has a plain
meaning. Id. If so, the court applies that meaning and conducts no further analysis. Id. If the
phrase “has more than one plausible interpretation,” then the court examines “the phrase in light
of the particular context in which that [phrase] is used in the policy and the broader context of
the policy as a whole.” Id. (quotation marks and citation omitted). If a term of the policy remains
ambiguous after engaging in those exercises, then “‘any reasonable doubt as to the intended
meaning of such [a] term will be resolved against the insurance company[.]’” Id. (quoting N.
Pac. Ins. Co. v. Hamilton, 332 Or. 20, 25 (2001)). A term is ambiguous only if it is susceptible to
more than one plausible interpretation. Id.
Defendant argues that the relevant policy language is unambiguous, and Plaintiffs argue
that the language is broad enough to cover their losses or, alternatively, that it is ambiguous and
should be construed against Defendant. Def. Mot. 12; Pl. Opp’n 8–9. The Court agrees with the
courts that have construed the phrase “direct physical loss or damage” to covered property and
similar policy language and finds that the relevant policy language is unambiguous. See, e.g.,
Protégé Rest. Partners, LLC v. Sentinel Ins. Co., Ltd., ____ F. Supp. 3d ____, 2021 WL 428653,
at *4 (N.D. Cal. Feb. 8, 2021) (finding the phrase “direct physical loss of or physical damage to”
unambiguous); Columbiaknit, Inc. v. Affiliated FM Ins. Co., No. Civ. 98-434-HU, 1999 WL
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619100, at *5 (D. Or. Aug. 4, 1999) (same). Thus, the Court will construe the terms of the Policy
by applying the definitions of the defined terms and the plain meaning of the undefined terms.
Holloway, 341 Or. at 650. The parties also appear to agree that it is appropriate for the Court to
decide this motion based on the Court’s review of the Policy because it is incorporated by
reference into Plaintiffs’ Complaint. Def. Mot. 10; Pl. Opp’n 5–6.
Plain Meaning of Policy’s Terms
Each of the coverage provisions apply only if a risk of “direct physical loss or damage to
covered property” occurred. Policy 13. The court determines whether words have a plain
meaning by “reference to the usual source of ordinary meaning, the dictionary.” Phillips v. State
Farm Fire & Cas. Co., 302 Or. App. 500, 506 (2020) (noting that “directly” means “without any
intervening space or time : next in order[;] . . . “in a straight line: without deviation of course.”
(quoting Webster’s Third New Int’l Dictionary 641 (unabridged ed. 2002)). “Direct” means
“‘characterized by or giving evidence of a close esp. logical, causal, or consequential
relationship.’” Summit Real Est. Mgmt., LLC v. Mid-Century Ins. Co., 298 Or. App. 164, 177
(2019) (holding that “direct loss” means “loss resulting immediately and proximately from an
event”) (quoting Webster’s Third New Int’l Dictionary 640).
“Physical” means “of or relating to natural or material things as opposed to things mental,
moral, spiritual, or imaginary: material, natural[.]” Webster’s Third New Int’l Dictionary 1706;
see also 10A Couch on Insurance § 148.46 (3d ed. 2019) (“The requirement that the loss be
‘physical,’ given the ordinary definition of that term, is widely held to exclude alleged losses that
are intangible or incorporeal and, thereby, to preclude any claim against the property insurer
when the insured merely suffers a detrimental economic impact unaccompanied by a distinct,
demonstrable, physical alteration of the property”). The dictionary defines “loss” as “the act or
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fact of losing : failure to keep possession : deprivation;” or “an instance of losing[.]” Webster’s
Third New Int’l Dictionary 1338. The word “damage” means “loss due to injury : injury or harm
to person, property, or reputation[.]” Webster’s Third New Int’l Dictionary 571. Applying those
definitions, the plain meaning of the phrase “direct physical loss or damage to covered property”
is direct (without any intervening space or time) physical (of or relating to natural or material
things) loss of (the act or fact of losing) or damage (injury or harm) to covered property.
Meaning of “direct physical loss or damage to covered property”
The plain meaning of the phrase “direct physical loss or damage” requires Plaintiffs’
property to be lost or physically damaged for coverage to exist under any provisions of
Plaintiffs’ Policy. See Or. Shakespeare Festival Ass’n v. Great Am. Ins. Co., No. 1:15-cv-01932CL, 2016 WL 3267247, at *5 (D. Or. June 7, 2016) (“physical loss or damage” means “any
injury or harm to a natural or material thing”), vacated by stipulation of the parties, 2017 WL
1034203 (Mar. 6, 2017); Columbiaknit, Inc., 1999 WL 619100, at *5 (“‘The inclusion of the
terms “direct” and “physical” could only have been intended to exclude indirect, nonphysical
losses.’” (quoting Great N. Ins. Co. v. Benjamin Franklin Fed. Sav. and Loan Ass’n, 793 F.
Supp. 259, 263 (D. Or. 1990))). Cf. Wy. Sawmills, Inc. v. Transp. Ins. Co., 282 Or. 401, 406
(1978) (Including the word “‘physical’ in the phrase ‘physical injury to . . . tangible property’ . . .
negates any possibility that the policy was intended to include ‘consequential or intangible
damage,’ such as depreciation in value, within the term ‘property damage.’”).
The Civil Authority provision extends coverage for loss of business income when an
action of civil or military authority prohibits access to the property if the action of civil or
military authority “results from” a covered loss or “damage by a peril insured against to the type
of property covered by this policy within one (1) statute mile of a covered location.” Policy 19.
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Thus, the Civil Authority provision requires that an action of civil authority prohibited access to
Plaintiffs’ property as a result of the loss, destruction, dispossession of or injury to property
located within one mile of Plaintiffs’ covered locations.
Having determined the plain meaning of the undefined terms of the Policy, the Court now
applies the plain meaning of those terms to the language of the Policy to determine whether
coverage exists. Defendant argues that the phrase “direct physical loss or damage to covered
property” requires Plaintiffs to lose property or demonstrate a physical alteration in the condition
of their property for coverage to apply. The Court agrees.
Oregon courts have construed the phrase “direct physical loss or damage to property”
and similar phrases to require some degradation in the condition of the property to invoke
coverage under the “damage to property” portion of that phrase. In Columbiaknit, Inc. v.
Affiliated FM Ins. Co., this Court emphasized that a policy that covers “direct physical loss or
damage”—and the inclusion of the word “physical” in particular—covers only direct damage
and does not extend to consequential damages. 1999 WL 619100, at *4–5. Applying that
construction, the Court held that the insurance policy of the plaintiff, a clothing manufacturer
whose property had suffered water intrusion damage resulting in water damage to some of its
merchandise, could recover only for the damage to the clothing directly damaged by the water
intrusion. Id. at *7. The court ruled that only articles of clothing that were “physically changed in
some manner,” either by the water intrusion or the resulting mold and mildew spores, were
covered under the terms of the policy. Id. at *7–8.
The Oregon Supreme Court held in the context of a liability insurance policy that
including the word “physical” in the policy excluded coverage for consequential or intangible
damages. Wyoming Sawmills, 282 Or. at 406. In that case, the plaintiff sought indemnification
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for damages it caused by selling defective lumber to a customer. Id. at 403. The purchaser used
the defective lumber as studs in a building, and the studs later warped and twisted. Id. The court
held that the policy, which defined “property damage” as “physical injury to or destruction of
tangible property,” did not cover consequential damages such as diminished value but did cover
the cost of labor for “tearing out and putting back other parts of the building . . . in order to
replace the studs[.]” Id. at 404, 408.
The Ninth Circuit also has held that the phrase “direct physical loss” requires the loss of a
tangible item of property. Sentience Studio, LLC v. Travelers Ins. Co., 102 F. App’x 77, 81 (9th
Cir. 2004) (mem.) (holding that a business property insurance policy did not cover losses
stemming from the removal of a film producer’s name from the film credits because film credits
are not tangible property); Commonwealth Enters. v. Liberty Mut. Ins. Co., 101 F.3d 705, at *2
(9th Cir. 1996) (table) (holding that tenants’ fear of asbestos contamination that led tenants to
vacate commercial buildings was not physical loss or damage covered under business
In Great Northern Insurance Company v. Benjamin Franklin Federal Savings and Loan
Association, a tenant of a commercial building owned by the insured discovered asbestos while
remodeling their unit and demanded that the insured remove the asbestos. 793 F. Supp. at 261,
aff’d, 953 F.2d 1387 (9th Cir. 1992). When the landlord refused to abate the asbestos and the
tenant then vacated the unit, the insured submitted a business interruption claim under its
property insurance policy, which covered “direct physical loss or damage.” Id. The court ruled
that coverage did not exist based on the presence of asbestos in the building because “[t]here is
no evidence here of physical loss, direct or otherwise.” Id. at 263. Affirming the district court,
the Ninth Circuit held:
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We agree with the district court, applying Oregon case law, that [the insured’s] loss
did not result “from direct physical loss.” While [the insured] no doubt sustained
consequential loss caused by the necessity of cleaning up asbestos, we conclude
that it did not sustain “direct physical loss.”
953 F.2d 1387, at *1 (9th Cir. 1992) (mem.).
Plaintiffs’ Complaint alleges only that the state and local government orders issued in
Oregon in response to the pandemic caused them to suspend their business operations. Although
they allege that they expended money to meet new public health requirements, Plaintiffs do not
allege that any of their property was lost or damaged as a result of the orders. Plaintiffs’
Complaint alleges that (1) “Plaintiffs were forced to suspend, in whole or in part, their business
operations due to certain orders and directives issued by Oregon Governor Kate Brown and local
civil authorities[;]” and (2) As a direct result of the Orders, Plaintiffs were unable to operate their
businesses, in whole or in part, while the Orders remained in effect[;]” (3) “When Plaintiffs and
other similarly situated businesses were permitted to re-open, they could do so only with
significant alterations to their premises and business models at great cost, including, among other
things, loss of use of space, installation of barriers, increased cleaning and sanitation protocols,
changing business hours and employee hours, decreased customer traffic, and generally more
expensive operations in order to comply with the Orders[;]” (4) “Plaintiffs’ business property
cannot be used for its intended purposes and their business activities have necessarily been
suspended or interrupted[;]” (5) Plaintiffs sustained direct physical loss or damage caused by the
Orders[;]” and (6) “The direct, predominant, and efficient cause of Plaintiffs’ direct physical loss
or damage is the Orders.” Compl. ¶¶ 11–15.
Absent from those allegations are any facts from which a factfinder could conclude that
Plaintiffs’ business property was lost or damaged. Plaintiffs’ conclusory allegations that they
suffered direct physical loss or damage are insufficient to state a claim. See Cousins v. Lockyer,
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568 F.3d 1063, 1067 (9th Cir. 2009) (“conclusory allegations of law and unwarranted inferences
are insufficient to avoid a Rule 12(b)(6) dismissal”). The absence of facts demonstrating any
physical loss or damage to Plaintiffs’ business property is fatal to Plaintiffs’ claim.
Numerous courts in this circuit and around the country have reached the same conclusion
that this Court reaches today. See, e.g., Protégé Rest. Partners, LLC, 2021 WL 428653, at *4
(finding “direct physical loss of or physical damage to” unambiguous, that it requires a “distinct,
demonstrable, physical alteration of the property” to invoke coverage, and noting that every
California court to address COVID-19 business interruption claims to date has concluded that
“government orders that prevent full use of a commercial property or that make the business less
profitable do not themselves cause or constitute ‘direct physical loss of or physical damage to’
the insured property.”); Pappy’s Barber Shops, Inc. v. Farmers Grp., Inc., 491 F. Supp. 3d 738,
740 (S.D. Cal. 2020) (finding that even assuming presence of virus at the plaintiffs’ business
premises, business income losses were directly caused by precautionary measures taken by the
state to prevent the spread of COVID-19 rather than by direct physical loss of or damage to
property); Uncork & Create LLC, 498 F. Supp. 3d 878, 883 (S.D. W. Va. 2020) (no coverage
because “COVID-19 does not threaten the inanimate structures covered by property insurance
policies, and its presence on surfaces can be eliminated with disinfectant.”); Johnson v. Hartford
Fin. Servs. Grp., 510 F. Supp. 3d 1326, 1337 (N.D. Ga. 2021) (“COVID-19 hurts people, not
property”); Circus Circus LV, LP v. AIG Spec. Ins. Co., No. 2:20-cv-01240-JAD-NJK, 2021 WL
769660, at *3 (D. Nev. Feb. 26, 2021) (ruling that “pure, economic losses caused by COVID-19
closures do not trigger policy coverage predicated on “direct physical loss or damage”); Levy Ad
Grp., Inc. v. Chubb Corp., No. 2:20-cv-00763-JAD-DJA, 2021 WL 777210, at *3 (D. Nev. Feb.
16, 2021) (same); Nguyen v. Travelers Cas. Ins. Co. of Am., No. 2:20-cv-00597-BJR, 2021 WL
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2184878, at *10–11 (W.D. Wash. May 28, 2021) (granting insurer’s dispositive motions in
consolidated actions against ten groups of insurers brought by hundreds of Washington
businesses and finding that COVID-19 does not cause “direct physical damage to” or “direct
physical loss of” property).2
Plaintiffs attempt to equate the temporary limitation or loss of use of the property to
direct physical loss. The two are not equivalent. Construing Plaintiffs’ allegations in the light
most favorable to Plaintiffs, the losses Plaintiffs allege are purely economic and not the result of
any “direct physical loss or damage to property.” As a result, Plaintiffs have not met their burden
to demonstrate that coverage exists under the Policy.
Defendant argues that the virus exclusion in the Policy bars Plaintiffs’ claims. Plaintiffs
argue that because they alleged that the orders, not the virus or pandemic, were the “direct,
predominant, and efficient cause of Plaintiffs’ direct physical loss or damage,” Compl. ¶¶ 10, 11,
15, they can avoid application of the virus exclusion. Pl. Opp’n 24–28. Because Plaintiffs have
not demonstrated that coverage exists, the Court need not determine whether any exclusion
applies. See ZRZ Realty Co., 222 Or. App. at 465.
Leave to Amend
Because the Court finds that Plaintiffs’ Complaint cannot be amended to plausibly allege
a claim under the terms of the Policy, the Court denies leave to amend. Wheeler v. City of Santa
See also Newman Myers Kreines Gross Harries, P.C. v. Gr. N. Ins. Co., 17 F. Supp. 3d 323,
331 (S.D.N.Y. 2014) (finding that the phrase “direct physical loss or damage . . .
unambiguously requires some form of actual, physical damage to the insured premises to
trigger loss of business income and extra expense coverage.”); Ass’n of Apartment Owners of
Imperial Plaza v. Fireman’s Fund Ins. Co., 939 F. Supp. 2d 1059, 1069 (D. Haw. 2013) (that
“direct physical loss or damage” means “that an event had a direct impact and proximately
caused a loss related to the physical matter of the Property.”).
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Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Leave to amend may be denied if amendment
would be futile[.]”).
The Court GRANTS Defendant’s Motion to Dismiss . Plaintiffs’ Complaint is
dismissed with prejudice. Defendant’s Request for Judicial Notice  is denied as moot.
IT IS SO ORDERED.
September 7, 2021
MARCO A. HERNÁNDEZ
United States District Judge
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