Society's Rule 56.1 Response — Big Onion Tavern Group et al. v. Society Insurance

Record facts

Summary

Defendant Society Insurance's response to plaintiffs' Local Rule 56.1(b)(3)(C) statement of additional material facts, dated October 21, 2020 in In re: Society Insurance Company COVID-19 Business Interruption Protection Insurance Litigation, MDL No. 2964, Master Docket No. 1:20-cv-05965, in the U.S. District Court for the Northern District of Illinois, relating to Big Onion Tavern Group, LLC v. Society Insurance, No. 1:20-CV-02005. The filing answers the plaintiffs' numbered assertions one by one, stating whether each fact is undisputed or disputed. The responses address public health data on COVID-19 cases and deaths, CDC statements on transmission, studies on how long the virus survives, and a Chicago rule effective July 24, 2020. Society repeatedly objects that the asserted facts are immaterial to whether plaintiffs suffered direct physical loss of insured property.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ILLINOIS, 
EASTERN DIVISION 
 
IN RE: SOCIETY INSURANCE COMPANY 
) 
COVID-19 BUSINESS INTERRUPTION   
)  
MDL No. 2964 
PROTECTION INSURANCE LITIGATION  
) 
_________________________________________ )  
Master Docket No. 1:20-cv-05965 
This document relates to:  
 
 
 
) 
)  
Hon. Edmond Chang 
Big Onion Tavern Group, LLC v. Society 
 
) 
Insurance, No. 1:20-CV-02005 
 
 
) 
_________________________________________ ) 
 
 
DEFENDANT SOCIETY INSURANCE’S RESPONSE 
TO PLAINTIFFS’ LOCAL RULE 56.1(b)(3)(C) STATEMENT OF ADDITIONAL 
MATERIAL FACTS THAT REQUIRE DENIAL OF SUMMARY JUDGMENT 
 
NOW COMES, Defendant, SOCIETY INSURANCE (“Society”), by and through its 
attorneys Thomas B. Underwood, Michael D. Sanders, Michelle A. Miner and Amy E. Frantz of 
PURCELL & WARDROPE, CHTD., and for its Response to Plaintiffs’ Statement of Additional 
Facts, hereby states as follows:  
 
1. 
Over 8,000 Illinois residents and over 180,000 Americans have died of COVID-19 
and there have been over 250,000 confirmed COVID-19 cases in Illinois and over 6 million 
confirmed cases in the United States as of the date of this filing, according to Centers for Disease 
Control and Prevention (“CDC”) data. See “United States COVID-19 Cases and Deaths by State,” 
Centers for Disease Control and Prevention (“CDC”), available at https://covid.cdc.gov/covid-
data-tracker/#cases (data as of Sept. 10, 2020) (Ex. 44); “Coronavirus Disease 2019 (COVID-19),” 
Illinois Department of Public Health (“IDPH”), available at http://www.dph.illinois.gov/covid19 
(data as of Sept. 10, 2020) (Ex. 45). 
RESPONSE:. Society objects to this Paragraph as immaterial to the question of whether 
Plaintiffs suffered a direct physical loss of or damage to their insured property, 
as it does not establish that the virus physically alters property.  Society does not 

2 
 
dispute that the documents reflect the information found in the documents 
attached as Exhibits 44 and 45.  
 
 
2. 
According to the CDC, the novel coronavirus that causes COVID-19 can spread by 
respiratory droplets when an infected person coughs, sneezes, or talks. A person can become 
infected from respiratory droplets or potentially by touching a surface or object that has the virus 
on it and then by touching the mouth, nose, or eyes. See “What you should know about COVID-
19 
to 
protect 
yourself 
and 
others,” 
CDC 
(June 
1, 
2020), 
available 
at 
https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf (“CDC Fact 
Sheet”). (Ex. 46). 
RESPONSE: Undisputed that the document attached as Exhibit 46 reflects the statements 
contained in Paragraph 2.  Society objects to this Paragraph as immaterial to 
the question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property, as it does not establish that the virus physically alters 
property.   
 
 
3. 
Research led by scientists from the National institute of Health (“NIH”) National 
Institute of Allergy and Infectious Diseases (“NIAID”) indicated the virus can live on surfaces for 
several days and in the air for several hours. See “Study suggests new coronavirus may remain on 
surfaces for days,” NIH (Mar. 24, 2020), available at https://www.nih.gov/news-events/nih-
research-matters/study-suggests-new-coronavirus-may-remain-surfaces-days. (Ex. 47).  
RESPONSE:  Society disputes the statements in paragraph 3 fully or accurately reflect the 
statements in Exhibit 47.  Answering further, the article Plaintiffs have attached 
as Exhibit 47 found that the longest a virus could survive in the air was 3 hours 
and 2-3 days on surfaces. (Dkt. No. 123-5 at p. 3.)  The article states that the 
virus “is believed to mostly spread from person-to-person through respiratory 
droplets produced when an infected person coughs or sneeze.   (Id. at p. 2.)  
Society objects to this paragraph and the exhibit as immaterial to the question 
of whether Plaintiffs suffered a direct physical loss of or damage to their insured 
property, as it does not establish the virus physically alters property.  
 
 
4. 
Research published in The New England Journal of Medicine (“NEJM”) also 
indicates the virus can survive in the air for several hours. See “Droplets and Aerosels in the 

3 
 
Transmission 
of 
SARS-CoV-2,” 
NEJM 
(May 
21, 
2020), 
available 
at 
https://www.nejm.org/doi/full/10.1056/NEJMc2009324. (Ex. 48). 
RESPONSE: Disputed.  Exhibit 48 does not contain published research; it is a letter to the 
editor and its conclusions are not peer-reviewed.  Moreover, the letter does not 
state that the virus can survive in the air for several hours, but in tissue culture 
assays.  Additionally, the author does not conclude that indoor spaces are 
physically altered, damage, or unsafe.  Rather, the author “suggests the 
advisability of wearing a suitable mask whenever it is thought that infected 
persons may be nearby and of providing adequate ventilation.”  (Dkt. No. 123-
6 at p. 3.)    Society objects to the statement in this paragraph and the letter to 
the editor attached as Exhibit 48 as being inadmissible hearsay and not subject 
to judicial notice. Society objects to this Paragraph as immaterial to the question 
of whether Plaintiffs suffered a direct physical loss of or damage to their insured 
property, as it does not establish that the virus physically alters property.   
 
 
5. 
Research also indicates that aerosols from persons infected with COVID-19 may 
pose an inhalation threat even at considerable distances and in enclosed spaces. Id. 
RESPONSE: Disputed.  Exhibit 48 does not contain published research; it is a letter to the 
editor and its conclusions were not peer-reviewed.  Undisputed that the letter 
states: “Aerosols from infected persons may therefore pose an inhalation threat 
even at considerable distances and in enclosed spaces, particularly if there is 
poor ventilation.”  Id. Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property, as it does not establish that the virus physically alters 
property.   
 
 
6. 
COVID-19 may be spread when an infected person coughs, sneezes, or talks, 
particularly when in close contact with other people. See CDC Fact Sheet (Ex. 46). 
RESPONSE: Undisputed that the CDC Fact Sheet attached as Exhibit 46 reflects the 
statement in paragraph 6. Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property, as it does not establish that the virus physically alters 
property.   
 
 
7 
According to the CDC, it is unknown how long the air inside a room occupied by 
someone with confirmed COVID-19 remains potentially infectious, and facilities need to consider 
factors such as the size of the room and the ventilation system design (including location of supply 

4 
 
and exhaust vents) when deciding how long to close off rooms or areas used by ill persons before 
beginning disinfection. Taking measures to improve ventilation in an area or room where someone 
was ill or suspected to be ill with COVID-19 will help shorten the time it takes respiratory droplets 
to be removed from the air. See “Cleaning and Disinfection for Households,” CDC (updated July 
10, 
2020), 
available 
at 
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/cleaning-disinfection.html. (Ex. 49).  
RESPONSE: Undisputed that the CDC document attached as Exhibit 49 reflects the 
statements in paragraph 7.  However, the attached document “provides 
recommendations on the cleaning and disinfection of households where persons 
under investigation (PUI) or those with confirmed COVID-19 reside.”  (Dkt. No. 
123-7 at p. 3) Answering further, Exhibit 49 states that “transmission of the 
novel coronavirus to persons from surfaces contaminated with the virus has not 
been documented” and “[c]leaning of visibly dirty surfaces followed by 
disinfection is a best practice measure for prevention of COVID-19 and other 
viral respiratory illnesses in households and community setting.” (Id. at p. 2 
(emphasis added).) Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property, as it does not establish that the virus physically alters 
property.   
 
 
8. 
According to the CDC, the more an individual interacts with others, and the longer 
that interaction, the higher the risk of COVID-19 spread. See “Considerations for Restaurants and 
Bars,” (updated Sept. 6, 2020), available at  
https://www.cdc.gov/coronavirus/2019ncov/community/organizations/business-employers/bars-
restaurants.html. (Ex. 50).  
RESPONSE: Undisputed that the CDC document attached as Exhibit 50 reflects the 
statements in paragraph 8.  Society objects to this Paragraph as immaterial to 
the question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property, as it does not establish that the virus physically alters 
property.   
 
 
9. 
CDC guidance for restaurants and bars states that the risk of COVID-19 spread 
increases in a restaurant or bar settings with on-site dining. On-site dining where seating capacity is 
reduced to allow tables to be spaced at least 6 feet apart poses a “high” risk of infection. On-site dining 

5 
 
where seating capacity is not reduced and tables are not spaced at least 6 feet apart poses the “highest 
risk” of infection. Id. See also Sarah Toy and Daniela Hernandez, “What Makes Bars and Restaurants 
Potential Covid-19 Hot Spots,” The Wall Street Journal, (July 3, 2020), available at 
https://www.wsj.com/articles/what-makes-bars-and-restaurants-potential-covid-19-hot-spots-
11593768600. (Ex. 51).  
RESPONSE: Disputed, the document attached as Exhibit 51 does not state that on-site dining 
where seating capacity is reduced to allow tables to be spaced at least 6 feet 
apart poses a “high” risk of infection.  Society objects to the statement in this 
paragraph and the newspaper article attached as Exhibit 51 as being 
inadmissible hearsay and not subject to judicial notice. Society objects to this 
Paragraph as immaterial to the question of whether Plaintiffs suffered a direct 
physical loss of or damage to their insured property, as it does not establish that 
the virus physically alters property.   
 
 
10. 
Indoor dining has been reported to be particularly dangerous in crowded settings 
where ventilation and air infiltration are poor because viral particles can build up in the air. Id.  
RESPONSE: Undisputed that the Wall Street Journal article attached as Exhibit 51 makes 
this claim.  Society objects to the statement in this paragraph and the newspaper 
article attached as Exhibit 51 as being inadmissible hearsay and not subject to 
judicial notice. Society objects to this Paragraph as immaterial to the question 
of whether Plaintiffs suffered a direct physical loss of or damage to their insured 
property, as it does not establish that the virus physically alters property.   
 
 
11. 
Early studies “found that SARS-CoV-2 can survive on surfaces for two or three 
days,” but “as epidemiologists watched the pandemic unfold, evidence emerged about the disease 
spreading in crowded rooms – especially at bars, restaurants and churches – suggesting that 
airborne virus particles were the main cause of transmission.” Hal Dardick, “Silent spreaders and 
long haulers. Aerosols and protocols. 10 things science has learned about COVID-19 in less than 
a 
year,” 
The 
Chicago 
Tribune, 
(September 
10, 
2020), 
available 
at  
https://www.chicagotribune.com/coronavirus/ct-coronavirus-things-we-have-learned-about-
covid-20200910-7omc6p4a2bf6pee2ymkyok6hvi-

6 
 
story.html?utm_source=onesignal&utm_medium=notification&utm_campaign=2020-09-10-
COVID-19-What-w. (Ex. 52).   
RESPONSE: Disputed.  Exhibit 52 does not contain published research; it is a news article 
and its conclusions were not peer-reviewed.  Undisputed that the article contains 
the statements quoted in paragraph 11.  Id.  Further answering, Exhibit 52 states 
that “While hand-washing and cleaning surfaces are still good practices, the 
primary focus has shifted to mask-wearing and maintaining social distance.” 
Society objects to the statement in this paragraph and the newspaper article 
attached as Exhibit 52 as being inadmissible hearsay and not subject to judicial 
notice.  
 
12. 
The State of Illinois recognizes the “propensity [of COVID-19] to physically 
impact surfaces and personal property.” Ex. 6, Section 2, ¶ 12 (l). 
RESPONSE: Undisputed that Exhibit 6 contains the phrase “propensity of the virus to 
physically impact surfaces and personal property.” Society objects to this 
Paragraph as immaterial to the question of whether Plaintiffs suffered a direct 
physical loss of or damage to their insured property, as it does not establish that 
the virus physically alters property.   
 
 
13. 
The Food & Drug Administration (“FDA”) has published a document entitled Best 
Practices for Restaurants and Bars (the “FDA Restaurant Guidance”), available at 
https://www.fda.gov/food/food-safety-during-emergencies/best-practices-retail-food-stores-
restaurants-and-food-pick-updelivery-services-during-covid-19 (last visited Sept. 11, 2020). (Ex. 
53). While the FDA Restaurant Guidance contemplates best practices for food preparation and 
take-out and delivery services, it does not provide guidance on how to prevent the spread of 
coronavirus when serving customers inside a dining room, bar, or theater, and in fact includes 
recommendations like “[d]iscontinu[e] operations, such as salad bars, buffets, and beverage 
service stations that require customers to use common utensils or dispensers.” Id. 
RESPONSE: Undisputed that the Food and Drug Administration published a document 
entitled “Best Practices for Retail Food Stores, Restaurants, and Food Pick-
Up/Delivery Services During the COVID-19 Pandemic”, which is available at 
the web address specified and that Plaintiffs have attached a copy as Exhibit 53.  
 
Disputed that Exhibit 53 does not provide guidance on how to prevent the 

7 
 
spread of coronavirus when serving customers inside a dining room, bar, or 
theater, as it contains a section titled “Managing Operations in a Foodservice 
Establishment or Retail Food Store” which addresses infection control while 
customers are inside such premises.  
 
 
14. 
The CDC has published research finding: “Adults with positive SARS-CoV-2 test 
results were approximately twice as likely to have reported dining at a restaurant than were those 
with negative SARS-CoV-2 test results.” Fisher KA, Tenforde MW, Feldstein LR, et al., 
“Community and Close Contact Exposures Associated with COVID-19 Among Symptomatic 
Adults > 18 Years in 11 Outpatient Health Care Facilities – Untied States, July 2020,” MMWR 
Morb 
Mortal 
Wkly 
Rep 
2020;69:1258-1264 
(Sept. 
11, 
2020), 
available 
at 
https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6936a5-H.pdf. (Ex. 54). This research also 
states: “Reports of exposures in restaurants have been linked to air circulation. Direction, 
ventilation, and intensity of airflow might affect virus transmission, even if social distancing 
measures and mask use are implemented according to current guidance. Masks cannot be 
effectively worn while eating and drinking, whereas shopping and numerous other indoor activities 
do not preclude mask use.”   
RESPONSE: Undisputed that the paper identified in Paragraph 14 is available at the web 
address specified, and that Plaintiffs have attached a copy of the paper found at 
the web address as Exhibit 54.  Undisputed that Plaintiffs have accurately 
quoted sentences that appear in Exhibit 54.  Society objects to this Paragraph 
as immaterial to the question of whether Plaintiffs suffered a direct physical loss 
of or damage to their insured property, as it does not establish that the virus 
physically alters property.   
 
THE BUSINESS INTERRUPTION ORDERS WERE ISSUED IN RESPONSE TO THE 
DANGEROUS CONDITIONS IN AND AROUND PLAINTIFFS’ PREMISES 
 
 
15. 
The March 16, 2020 Business Interruption Order was issued because, among other 
things: (a) COVID-19 is a novel severe acute respiratory illness that can spread among people 
through respiratory transmissions; (b) Current testing availability has identified spread of 

8 
 
confirmed cases throughout the State of Illinois, and it is expected that increased testing capacity 
would demonstrate that COVID-19 is circulating in communities across Illinois that currently have 
not identified a confirmed case; (c) The number of suspected COVID-19 cases in Illinois is 
increasing exponentially and across more locations in Illinois; and (d) The ongoing spread of 
COVID-19 and the danger the virus poses to the public’s health and wellness require the reduction 
of on-premises consumption of food and beverages. (Ex. 2).  
RESPONSE:  Undisputed that the recital in the March 16, 2020 Order contains 
substantially the same language in 15 (a-d) above.  Defendant disputes the 
March 16, 2020 Order was entitled “Business Interruption Order.” 
 
 
16. 
The March 16, 2020 Business Interruption Order applied to “all businesses in the 
State of Illinois that offer food or beverages for on-premises consumption, including restaurants, 
bars, grocery stores, and food halls,” and prohibited customers from entering the premises of these 
businesses other than for carry-out and then immediately leave upon receiving the food. Id. (Ex. 
8).  
RESPONSE: Undisputed that the March 16, 2020 executive order allowed customers to enter 
and access the premises of businesses that offer food or beverages.  Defendant 
disputes the March 16, 2020 Order was entitled “Business Interruption 
Order.” 
 
 
17. 
The March 16, 2020 Business Interruption Order to any public or private gathering 
spaces, including “venues such as fitness centers/health clubs, bowling alleys, private clubs, and 
theatres.” (Ex. 3).  
RESPONSE: Undisputed that the March 16 Order contains the quoted language; however, 
Plaintiffs’ quotation is misleading.  The next sentence states the order does not 
apply to “venues that provide essential goods or services such as grocery stores, 
hospitals, pharmacies, gas stations, banks/credit unions, and shelters.”  (Ex. 2.) 
Defendant disputes the March 16, 2020 Order was entitled “Business 
Interruption Order.” 
 

9 
 
 
18. 
The March 20, 2020 Business Interruption Order was issued because “in a short 
period of time, COVID-19 has rapidly spread throughout Illinois, necessitating updated and more 
stringent guidance from federal, state, and local public health officials.” Id.  
RESPONSE: Undisputed that Plaintiffs accurately quoted a portion of the recital of the 
March 20, 2020 Order.   The Order also states: 
 
WHEREAS, for the preservation of public health and safety throughout the 
entire State of Illinois, and to ensure that our healthcare delivery system is 
capable of serving those who are sick, I find it necessary to take additional 
measures consistent with public health guidance to slow and stop the spread of 
COVID-19. 
 
(Ex. 3.)  Defendant disputes the March 20, 2020 Order was entitled 
“Business Interruption Order.” 
 
 
19. 
The March 20, 2020 Business Interruption Order prohibited “all public and private 
gatherings of any number of people occurring outside a single household or living unit,” and closed 
to the public “all places of public amusement, whether indoors or outdoors, including but not 
limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, 
zoos, museums, arcades, fairs, children's play centers, playgrounds, funplexes, theme parks, 
bowling alleys, movie and other theaters, concert and music halls, and country clubs or social 
clubs.” Id.  
RESPONSE: Undisputed that Plaintiffs have quoted a portion of the March 20 Order; 
however, Society objects to this Paragraph as immaterial to the question of 
whether Plaintiffs suffered a direct physical loss of or damage to their insured 
property. Defendant disputes the March 20, 2020 Order was entitled “Business 
Interruption Order.” 
 
 
20. 
The April 1, 2020 Business Interruption Order was issued including because: (a) 
Current testing availability has identified further spread of confirmed cases throughout the State 
of Illinois, and it is expected that increased testing capacity would demonstrate that COVID-19 is 
circulating in communities across Illinois that currently have not identified a confirmed case; and 

10 
 
(b) The number of suspected COVID-19 cases in Illinois is increasing exponentially and across 
more locations in Illinois. (Ex. 4).  
RESPONSE: Disputed as Plaintiff’s have paraphrased rather than quoted the recited section 
of the April 1 Order and because Plaintiffs’ restatement of this language is 
misleading, as the recitals also state: 
 
Whereas, social distancing, which requires maintaining at least a six-foot 
distance between people, is a paramount strategy for minimizing the spread of 
COVID-19 in our communities; and 
* * * 
Whereas, the number of suspected COVID-19 cases in Illinois is increasing 
exponentially and across more locations in Illinois, indicating that drastic social 
distancing measures are needed, even in communities where confirmed cases 
have not yet been identified, to reduce the number of people who become sick at 
any given time and the possibilities of exhausting our health care resources 
 
(Ex. 4 (emphasis added).)  Defendant disputes the April 1, 2020 Order was 
entitled “Business Interruption Order.” 
 
 
21. 
Under the Illinois “Restore Illinois” reopening plan, in Phases 1-3, access to bars 
and restaurants is limited to delivery, pickup and drive-through only, and in Phase 4, bars and 
restaurants may open but with capacity limits. (Ex. 9).  
RESPONSE: Disputed that during phase 3 business operations of bars and restaurants were 
limited to delivery, pickup, and drive-through only.  Under Phase 3, Illinois 
allowed eating and drinking establishments to open for “outdoor dining,” which 
included indoor space where 50% or more of a wall can be removed via the 
opening of windows, doors, or panels, provided that dining tables are within 8-
ft 
from 
such 
opening. 
 
See 
https://www.illinoisrestaurants.org/page/StateILPhase3Reopening. 
 
The 
remainder of the paragraph is undisputed.  
 
 
22. 
Illinois did not enter Phase 4 until June 26, 2020, and thereafter continued to limit 
access and restricted indoor dining to groups of 10 or less, with tables spaced 6-feet apart in seated 
areas and with standing areas at no more than 25% of capacity. See “Gov. Pritzker Releases 
Guidelines to Safety Reopen Additional Businesses and Industries as State Advances to Next 
Phase of Restore Illinois,” Illinois Department of Commerce and Economic Opportunity, (June 

11 
 
22, 2020), available at www2.illinois.gov/dceo/Media/PressReleases/Pages?PR06222020.aspx. 
(Ex. 55).  
RESPONSE: Disputed that Illinois limited access to restaurants at any point in time.  
Undisputed that Illinois entered Phase 4 on June 26, 2020, and that indoor 
dining was allowed in Phase 4 for groups of 10 or less, with tables spaced 6-feet 
apart, and with standing areas at 25% capacity.  
 
 
23. 
On July 15, 2020, Illinois released an update to Restore Illinois regarding “Actions 
to Combat a Resurgence of COVID-19,” which provided for a “menu of mitigation options 
organized by risk level.” “Actions to Combat a Resurgence of COVID-19,” Restore Illinois, 
available at https://www2.illinois.gov/IISNews/21818-Actions_to_Combat_a_Resurgence_of_ 
COVID-19.pdf (July 15, 2020). (Ex. 56).  
RESPONSE: Disputed that the document attached as Exhibit 56 can be found at the web 
address identified in Paragraph 23.  Undisputed that Plaintiffs have attached a 
document that purports to be a Restore Illinois document titled “Actions to 
Combat a Resurgence of COVID-19.” 
 
 
24. 
Multiple regions within Illinois have been subject to mitigation efforts to prevent 
uncontrollable spread, including Region 7, which includes Will and Kankakee Counties just to the 
south of the City of Chicago—which mitigation efforts include the prohibition of indoor service 
at bars and restaurants. “Resurgence Mitigations for Region 7,” Restore Illinois, available at 
https://dceocovid19resources.com/assets/Restore-Illinois/Resurgence-Migitations-Region-7.pdf  
(effective Aug. 26, 2020). (Ex. 57).  
RESPONSE: Undisputed; however, Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property. 
 
 
THE SOCIETY POLICIES DO NOT INCLUDE PANDEMIC OR VIRUS 
EXCLUSIONS COMMON IN THE MARKET 
 

12 
 
 
25. 
Society assessed premiums for business interruption coverage based on the gross 
sales each policyholder earned from serving customers inside their taverns or dining rooms. FAC 
Ex. D (Dkt. 29-4), PageID #:336-339 (“Renewal Declaration”).  
RESPONSE: Society disputes that the statement in paragraph 25 is supported by the 
document cited and further disputes that the assessment of premiums is based 
solely on gross sales earned from serving customers inside their taverns or 
dining rooms.  The assessment of premiums is based on a number of factors.  
Society objects to this Paragraph as immaterial to the question of whether 
Plaintiffs suffered a direct physical loss of or damage to their insured property. 
 
 
26. 
There is an exclusion offered by commercial property insurers for “communicable 
disease” which states: “[T]his policy does not insure any loss, damage, claim, cost, expense or 
other sum, directly or indirectly arising out of, attributable to, or occurring concurrently or in any 
sequence with a Communicable Disease or the fear or threat (whether actual or perceived) of a 
Communicable Disease.” Under this exclusion, “Communicable Disease” means “any disease 
which can be transmitted by means of any substance or agent from any organism to another 
organism where: (1) the substance or agent includes, but is not limited to, a virus, bacterium, 
parasite or other organism or any variation thereof, whether deemed living or not, and (2) the 
method of transmission, whether direct or indirect, includes but is not limited to, airborne 
transmission, bodily fluid transmission, transmission from or to any surface or object, solid, liquid 
or gas or between organisms, and (3) the disease, substance or agent can cause or threaten damage 
to human health or human welfare or can cause or threaten damage to, deterioration of, loss of 
value of, marketability of or loss of use of property insured hereunder.” See Communicable 
Disease Endorsement (LMA5393). (Ex. 58).  
RESPONSE: Undisputed that the document Plaintiffs have attached as Exhibit 58 contains 
the language quoted above.  Society disputes the remainder of Paragraph 26, 
including the authenticity of the document attached as Exhibit 58 as it does not 
appear to be a publicly available document.  Society further disputes that this 
document is relevant to the litigation and objects to it on the basis that it is 

13 
 
inadmissible under Federal Rules of Evidence 401 and 402 as improper 
extrinsic evidence that cannot be used to construe the relevant provisions of 
the Society Policy.   
 
 
27. 
The Insurance Services Office (“ISO”), an insurance advisory organization that 
drafts standard policy forms and endorsements, developed a form exclusion (BP 06 01 01 07) for 
its Businessowners policy titled “Exclusion of Loss Due to Virus or Bacteria,” which states: “We 
will not pay for loss or damage caused by or resulting from any virus, bacterium or other 
microorganism that induces or is capable of inducing physical distress, illness or disease.” See 
“Exclusion of Loss Due to Virus or Bacteria,” BusinessOwners Coverage Form, (2006), available 
at https://www.uuinsurance.com/ShowPDF.php?number=BP+06+01+01+07. (Ex. 59).  
RESPONSE: Undisputed; however, disputes that this document is relevant to the litigation 
and objects to it on the basis that it is inadmissible under Federal Rules of 
Evidence 401 and 402 as improper extrinsic evidence that cannot be used to 
construe the relevant provisions of the Society Policy.   
 
 
28. 
ISO developed this exclusion after the SARS epidemic in 2003 “to address 
exclusion of loss due to disease-causing agents such as viruses and bacteria.” See Larry Podoshen 
“New Endorsements Filed to Address Exclusion of Loss Due to Virus or Bacteria,” ISO Circular, 
(July 6, 2006) available a thttps://www.propertyinsurancecoveragelaw.com/files/2020/03/ISO-
Circular-LI-CF-2006-175-Virus.pdf.(Ex. 60). 
RESPONSE: Society does not dispute that ISO introduced this exclusion, or that Exhibit 60 
contains the quoted language. Society lacks sufficient information and 
knowledge to form a belief as to the truth of whether the ISO introduced this 
endorsement in response to the SARS outbreak.  Society objects to the ISO 
Circular on the basis that it is inadmissible under Federal Rules of Evidence 
401 and 402 as improper extrinsic evidence that cannot be used to construe the 
relevant provisions of the Society Policy.   
 
 
29. 
In a memorandum dated July 6, 2006 explaining the basis for the new virus 
exclusion, ISO states: 

14 
 
Disease-causing agents may render a product impure (change its quality or 
substance), or enable the spread of disease by their presence on interior building 
surfaces or the surfaces of personal property. When disease-causing viral or 
bacterial contamination occurs, potential claims involve the cost of replacement 
of property (for example, the milk), cost of decontamination (for example, 
interior building surfaces), and business interruption (time element) losses. Id. 
RESPONSE: Society does not dispute that the ISO Circular contains the quoted language 
but does dispute that Plaintiff’s selective quotation of it accurately represents 
the content of the ISO Circular.  Answering further, Society states that the 
ISO Circular states:  
 
While property policies have not been a source of recovery for losses 
involving contamination by disease-causing agents, the specter of pandemic 
or hitherto unorthodox transmission of infectious material raises the concern 
that insurers employing such policies may face claims in which there are 
efforts to expand coverage and to create sources of recovery for such 
losses, contrary to policy intent. 
 
(Dkt. No. 123-18 at p. 2 (emphasis added).)  Society objects to the ISO Circular 
on the basis that it is inadmissible under Federal Rules of Evidence 401 and 
402 as improper extrinsic evidence that cannot be used to construe the relevant 
provisions of the Society Policy.   
 
 
30. 
On June 22, 2020, Society sent an email to counsel for one of its restaurant clients 
in Nashville, Onion Division-Nashville Enterprises LLC (“Onion Nashville”), responding to 
Onion Nashville’s claim for coverage for business interruption losses arising out of the COVID-
19 pandemic. See Email from Daniel Mason to Joseph Englert dated June 22, 2020. (Ex. 61). 
RESPONSE: Undisputed; however, Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property. 
 
 
31. 
In this letter, Society stated:  
a. 
“The purpose of this email is to request clarification and additional 
information regarding the details of the claims being presented by your 
client so that we may complete our analysis and review of the claims 
brought by …Onion Nashville” 
 
b. 
“Please advise why Onion Nashville completely shut down as opposed to 
offering curbside, take-out, and/or delivery as allowed by executive orders 
and/or if they have provided any carry out services since March 15, 2020.” 
 

15 
 
c. 
“Did Onion Nashville have any employee that has exhibited symptoms 
and/or have been confirmed to have had COVID-19 please provide the 
following additional details: How and when did Onion Nashville receive 
notice of the symptoms? Once the notice was received, what actions were 
taken and when? What are the responsibilities of the employee(s)? When 
was the employee(s) last on site and what portions of the premises did they 
have access to or come into contact with? How long where they on the 
premises? Who did they have contact with while on the premises? Were 
they wearing any type of protective equipment? What actions were taken  
once the information was known? What is the last date the employee(s) was 
on site and if they have returned when did they return? Is there any 
documentation regarding a confirmed diagnosis of COVID-19?” 
  
RESPONSE: Undisputed that Plaintiff has quoted a portion of Exhibit 61; however, Society 
objects to this Paragraph as immaterial to the question of whether Plaintiffs 
suffered a direct physical loss of or damage to their insured property. 
 
 
COVID-19 PARTICULATES WERE ON PLAINTIFFS’ PREMISES DUE TO 
THE PRESENCE OF INFECTED EMPLOYEES AND PATRONS 
 
 
32. 
Roadhouse 66 Gas N Grill, a bar owned and operated by Plaintiff 3478 N Clark 
Street Inc., has had three confirmed cases of employees with COVID-19 that were working at the 
site shortly before they tested positive for COVID-19. One of these employees worked on March 
14, 2020 (shortly before the initial March 16 Business Interruption Order went into effect), before 
testing positive less than a week later. One of these employees worked on June 29, 2020 before 
testing positive on July 5, 2020. One of these employees worked on July 3, 2020 before testing 
positive on July 7, 2020. (Ex. 62).  
RESPONSE: Undisputed that Exhibit 62 purports to be a declaration attesting to the 
statements in Paragraph 32.  However, Society objects to this Paragraph as 
immaterial to the question of whether Plaintiffs suffered a direct physical loss 
of or damage to their insured property. 
 
 
33. 
The Barrelman Tavern, a bar owned and operated by Plaintiff The Barrelman 
Tavern Inc., has had three confirmed cases of guests with COVID-19 that visited its bar on March 

16 
 
13 or March 14, 2020 (shortly before the initial March 16 Business Interruption Order went into 
effect) shortly before they tested positive for COVID-19. (Ex. 63).  
RESPONSE: Undisputed that Exhibit 63 purports to be a declaration attesting to the 
statements in Paragraph 33.  However, Society objects to this Paragraph as 
immaterial to the question of whether Plaintiffs suffered a direct physical loss 
of or damage to their insured property. 
 
 
34. 
Plaintiffs McBrides Aurora Inc., McBride’s Pub Inc., and McBride’s on 52 Inc. 
(collectively “McBride’s”) own and operate several McBride’s Pub & Grille locations. McBride’s 
has had two employees test positive for COVID-19 shortly after working at one of its restaurants. 
One of these employees worked on April 4, 2020 before testing positive for COVID-19 on April 
10, 2020. One of these employees worked on August 12, 2020 before testing positive for COVID-
19 on August 16, 2020. (Ex. 64).  
RESPONSE: Undisputed that Exhibit 64 purports to be a declaration attesting to the 
statements in Paragraph 34.  However, Society objects to this Paragraph as 
immaterial to the question of whether Plaintiffs suffered a direct physical loss 
of or damage to their insured property. 
 
 
PLAINTIFFS’ LEASE AGREEMENTS CONFIRM THE INTENDED USE OF THE 
INSURED PREMISES WAS INDOOR FOOD & BEVERAGE SERVICE 
 
 
35. 
Plaintiff The Vig Chicago LLC entered into a long term lease for the property 
located at 1527 N. Wells Street in Chicago (“Vig Chicago Lease”) for the “Purposes” of operating 
“Bar/Restaurant.” (Ex. 65).  
RESPONSE: Undisputed that Exhibit 65 purports to be a declaration and lease.  However, 
Society objects to this Paragraph as immaterial to the question of whether 
Plaintiffs suffered a direct physical loss of or damage to their insured property. 
 
 
36. 
Exhibit A to the Vig Chicago lease contains a plan for the use of the indoor property 
it leased. As illustrated in that floor plan, the majority of the space Plaintiff The Vig Chicago LLC 
leased was intended to function as a bar and indoor dining room. Id.  

17 
 
RESPONSE: Undisputed that Exhibit 65 includes a document that purports to be a floor plan 
for the leased premises.  However, Society objects to this Paragraph as 
immaterial to the question of whether Plaintiffs suffered a direct physical loss 
of or damage to their insured property. 
 
 
37. 
Plaintiff The Whale Chicago, LLC leased property located at 2427 N. Milwaukee 
in Chicago for, among other “permitted uses” operating a “full service restaurant and bar with 
the incidental sale of alcohol.” Id.  
RESPONSE: Undisputed that Exhibit 65 contains a document that purports to be a lease 
entered into by The Whale Chicago, LLC.  Society disputes that Plaintiff has 
accurately quoted the “permitted uses” section, which states: 
 
 
A full service restaurant and bar with the incidental sale of alcohol, carry-out 
food service and off-premises catering, and ancillary office uses, provided that 
in no event shall Tenant be permitted to secure a tavern license.  
 
(Dkt. No. 123-23 at p.5 (emphasis added).)  However, Society objects to this Paragraph as 
immaterial to the question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property. 
 
 
BARS AND TAVERNS WITHOUT A RETAIL FOOD LICENSE IN THE CITY OF 
CHICAGO CANNOT SERVE CUSTOMERS INDOORS 
 
 
38. 
As of July 24, 2020, bars, taverns, breweries and other establishments that serve 
alcohol for on-site consumption without a Retail Food license in the City of Chicago will no longer 
be able to serve customers indoors. (Ex. 66).  
RESPONSE: Undisputed.  However, Society objects to this Paragraph as immaterial to the 
question of whether Plaintiffs suffered a direct physical loss of or damage to 
their insured property. 
 
 

18 
 
 
Date: October 21, 2020 
 
 
Thomas B. Underwood (#3122933) 
Michael D. Sanders (##6230187) 
Michelle A. Miner (#6299524) 
Amy E. Frantz (#6312526) 
PURCELL & WARDROPE, CHTD.  
10 South LaSalle Street, Suite 1200 
Chicago, IL 60603 
(312) 427-3900 
(312) 427-3944 (facsimile) 
TBU@pw-law.com 
MDS@pw-law.com 
MMiner@pw-law.com 
AFrantz@pw-law.com 
 
Respectfully submitted, 
 
Society Insurance 
 
By:      /s/ Thomas B. Underwood  
 
 
 Counsel for Defendant

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