Defendant’s Reply Suggestions in Support of Its Motion to Dismiss — Studio 417 v. Cincinnati Insurance (W.D. Mo.)

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101920983.v1 
IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF MISSOURI 
SOUTHERN DIVISION 
  
STUDIO 417, INC., et al. 
) 
 
 
) 
 
Plaintiffs, 
 
 
 
) 
CASE NO. 6:20-CV-03127 
 
 
 
 
 
 
) 
 
 
vs. 
 
 
 
 
) 
 
 
 
 
 
 
) 
THE CINCINNATI INSURANCE  
) 
COMPANY,  
 
 
 
) 
 
 
 
 
 
 
) 
 
Defendant. 
 
 
 
) 
 
DEFENDANT THE CINCINNATI INSURANCE COMPANY’S 
REPLY SUGGESTIONS IN SUPPORT OF ITS MOTION TO DISMISS 
 
WALLACE SAUNDERS, P.C. 
Michael L. Brown       MO 55732 
Kelvin J. Fisher          MO 56573 
10111 West 87th Street 
Overland Park, KS 66212 
(913) 888-1000 FAX - (913) 888-1065 
mbrown@wallacesaunders.com  
kfisher@wallacesaunders.com 
 
LITCHFIELD CAVO LLP 
Daniel Litchfield      PHV 
Ericka Hammett     PHV 
303 West Madison Street 
Suite 300 
Chicago, IL 60606 
(312) 781-6669 FAX (312) 781-6630 
litchfield@litchfieldcavo.com  
hammett@litchfieldcavo.com  
ATTORNEYS FOR DEFENDANT THE 
CINCINNATI INSURANCE COMPANY

 
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OVERVIEW AND SUMMARY OF ARGUMENT 
Plaintiffs seek to have this Court rule that policies that protect against direct physical loss 
or damage to property apply to purely financial losses from the Coronavirus pandemic.1 Cincinnati 
moves to dismiss the Complaint because its allegations and the plain language of the Policies show 
Plaintiffs cannot possibly prove their claim.  
ARGUMENT 
 
I. 
The Policies Require Direct Physical Loss to Plaintiffs’ Property and None is 
Alleged Here. 
 
 
Plaintiffs do not dispute that the interpretation of an insurance policy is a question of law 
for this Court. (Opp. p. 4). Nor do Plaintiffs dispute that where the language of an insurance policy 
is clear and unambiguous, “the Court uses the meaning that would be attached by an ordinary 
person.” (Opp. p. 4). Here, the Policy clearly and unambiguously requires direct physical loss, i.e., 
actual, tangible, permanent, physical alteration, to property. Plaintiffs allege nothing of the sort. 
A. 
The Policies’ Direct Physical Loss Requirement. 
 
The Policies make clear that direct physical loss is a fundamental prerequisite for any 
coverage under the Policy. This includes the Business Income, Extra Expense, Civil Authority, 
Extended Business Income, Dependent Property, and so-called Sue and Labor coverages Plaintiffs 
seek. (CIC Brf. pp. 8-9). Plaintiffs do not dispute that the requirement of direct physical loss or 
damage is applicable to each of these coverages. Rather, they make fallacious and legally 
unsupported assertions that there is direct physical loss here.  
                                            
1 Cincinnati issued separate policies to each of the named Plaintiffs. However, Plaintiffs agree each policy contains 
identical pertinent language. (Opp. Br. at p. 4, fn. 4). While Cincinnati’s Motion included parallel citations to the 
individual policies, Plaintiff’s Opposition Brief cites only the applicable page numbers of the Studio 417 Policy. (Dkt. 
No. 1-1; Compl. Ex. A). For brevity, and consistency, Cincinnati follows suit. References to the page numbers here 
refer to the ECF-stamped page numbers in the top margin of Studio 417 Policy. (Dkt. No. 1-1) (“Policy at p. __”). 
However, references to “Policy” or “Policies” in the body of this brief refer collectively to the Studio 417, Grand 
Street, Trezomare, and V’s Restaurant Policies. (Dkt. Nos. 1-1, 21-1, 21-2, & 21-4, respectively). 

 
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B. 
Plaintiffs Cannot Evade the Fundamental Prerequisite for Any Coverage 
Under the Policies, Direct Physical Loss. 
 
 
Faced with the fact that the direct physical loss requirement applies to all of the coverages 
that they seek, Plaintiffs essentially argue that this requirement should not be enforced because the 
Policies do not define “physical loss” or “physical damage”. (Opp. pp. 5-6).2 But, Plaintiffs 
concede, as they must, that “the Court uses the meaning [of words in the policy] that would be 
attached by an ordinary person,” and the term must be construed in the context of the phrase that 
contains it. (Opp. p. 5). See also, Thiemann v. Columbia Pub. Sch. Dist., 338 S.W.3d 835, 840 
(Mo. Ct. App. 2011) (“[w]e give the language used in an insurance contract its plain and ordinary 
meaning”). As will be shown, the phrase direct physical loss should not be read to eliminate the 
physical aspect of the phrase. 
Cincinnati established in its initial brief that courts throughout the country find that the 
plain and ordinary meaning of physical loss to property requires actual, tangible, physical, 
structural, alteration of property. (CIC Brf. pp. 13-20). It cited numerous cases to that effect. See, 
e.g., 10A Couch on Ins. § 148:46 (“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.”) (emphasis added) (collecting cases); Source Food Tech., Inc. v. U.S. Fid. & Guar. 
Co., 465 F.3d 834, 838 (8th Cir. 2006) (“To characterize Source Food’s inability to transport its 
truckload of beef product across the border and sell the beef product in the United States as direct 
                                            
2 Plaintiffs argue that the use of the terms “physical loss” or “physical damage” favors their case. (Opp. pp. 2 & 10). 
But, Cincinnati has shown that both terms require the loss or damage at issue be direct and physical in nature. (CIC 
Brf. pp. 8-9). See also, Rose’s 1, LLC v. Erie Insurance Exchange, No. 2020 CA 002424 B at 5 (D.C. Super Ct. August 
6, 2020), infra. In this context, the use of the word “or” does not eliminate the pervasive requirement of direct and 
physical loss or damage. 

 
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physical loss to property would render the word ‘physical’ meaningless.”); Pentair, Inc. v. Am. 
Guarantee & Liab. Ins. Co., 400 F.3d 613 (8th Cir. 2005); Great Plains Ventures, Inc. v. Liberty 
Mut. Fire Ins. Co., 161 F. Supp. 3d 970, 978 & n. 44 (D. Kan. 2016) (Robinson, C.J.), 
reconsideration denied3; Newman Myers Kreines Gross Harris, P.C. v. Great N. Ins. Co., 17 F. 
Supp. 3d 323 (S.D.N.Y. 2014); N.E. Georgia Heart Ctr., P.C. v. Phoenix Ins. Co., No. 2:12-CV-
00245-WCO, 2014 WL 12480022, at *6 (N.D. Ga. May 23, 2014) (expanding coverage to include 
loss-of-use damages when the property has not been physically impacted in some way “would be 
equivalent to erasing the words ‘direct’ and ‘physical’ from the policy.”); J. O. Emmerich & 
Assocs., Inc. v. State Auto Ins. Companies, No. 3:06CV00722-DPJ-JCS, 2007 WL 9775576, at *3 
(S.D. Miss. Nov. 19, 2007) (same); Phila. Parking Auth. v. Fed. Ins. Co., 385 F. Supp. 2d 280, 
289 (S.D.N.Y. 2005); MRI Healthcare Ctr. of Glendale, Inc. v. State Farm Gen. Ins. Co., 187 Cal. 
App. 4th 766, 780 (2010); Mastellone v. Lightning Rod Mut. Ins. Co., 2008-Ohio-311, ¶ 61, 175 
Ohio App. 3d 23, 40, 884 N.E.2d 1130, 1143 (mold on building siding did not constitute physical 
injury because it did not adversely affect the building’s structural integrity and could be removed 
by cleaning). Plaintiffs try, but fail, to distinguish these cases by asserting that they involve 
summary judgment motions rather than motions to dismiss under Rule 12(b)(6). This is a 
distinction without a difference. In both instances, the relevant inquiry is whether there was 
physical injury to property. In both instances, the non-moving party failed to either allege or show 
facts  sufficient to sustain its claim. 
 
                                            
3 Plaintiff asserts that Great Plains supports its interpretation of the Policy. Plaintiff summarily asserts that Great 
Plains says “loss of usefulness or function” is physical loss. (Opp. pp. 13-14) However, this is simply not what Great 
Plains says. Great Plains finds coverage specifically because the insured sustained physical alteration of its property. 
Great Plains, 161 F. Supp. 3d at 978 (“[T]he phrase “physical damage” in an insurance policy is widely accepted to 
mean a “physical alteration.”44 Thus, the Court finds that the phrase “physical loss or damage” provides coverage 
where, as here, cosmetic hail dents physically alter an insured’s property.”) 
 

 
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Moreover, all the cases that have addressed the issue whether the presence of Coronavirus, 
or a loss of use of a business because of government orders, squarely support Cincinnati here. 
Rose’s 1, LLC v. Erie Insurance Exchange, No. 2020 CA 002424 B (D.C. Super Ct. August 6, 
2020),4 holds that governmental Coronavirus orders “did not [a]ffect any direct changes to the 
properties,” “did not have any effect on the material or tangible structure of the insured properties,” 
and “were not such a direct physical intrusion” so as to cause direct physical loss. Rose’s, No. 2020 
CA 002424 B at 5, 7, 9. Thus, Roses holds that there was no insurance coverage. 
In addition to Rose’s, Gavrilides Management Co. LLC v. Michigan Insurance Co., Case 
No. 20-000258-CB (Ingham County, Mich., Jul. 1, 2020) and Social Life Magazine, 1:20-cv-
03311-VEC (S.D.N.Y.), ECF No. 24-1 at 15, reach the same conclusion. Coronavirus does not 
cause direct physical loss.5 Gavrilides involves a restaurant’s claim for business income loss 
related to the Coronavirus and resulting government orders. Gavrilides, in granting summary 
disposition to the insurer, holds: 
[I]t is clear from the policy coverage provision only direct physical loss is 
covered. Under their common meanings and under federal case law as well, that 
the plaintiff has cited that interprets this standard form of insurance, direct physical 
loss of or damage to the property has to be something with material existence. 
Something that is tangible. Something according to the one case that the plaintiff 
has cited from the Eastern District, that alters the physical integrity of the 
property. The complaint here does not allege any physical loss of or damage to the 
property . . . . So, again, the plaintiff just can’t avoid the requirement that there has 
to be something that physically alters the integrity of the property. There has to be 
some tangible, i.e., physical damage to the property. 
 
Gavrilides Order & Trans. at 18:20–20:9 (emphasis added). 
                                            
4 The written order and opinion in Rose’s 1 is attached as Exhibit A. The order was published shortly before this brief 
was filed and a reporter citation is not yet available.  
5 Gavrilides was decided after Cincinnati filed its initial brief. As such, the Order and transcript of the decision issued 
in Gavrilides are attached as Exhibit B. “It is well-established that a district court may take judicial notice of public 
records such as judicial rulings, and consider them on a motion to dismiss.” Challenger Powerboats, Inc. v. Evans, 
No. 4:07CV85 TIA, 2007 WL 2885346, at *2 (E.D. Mo. Sept. 27, 2007) (collecting cases). 

 
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Like Roses and Gavrilides, Social Life Magazine, 1:20-cv-03311-VEC (S.D.N.Y.), ECF 
No. 24-1 at 15, addresses the direct physical loss issue in a Coronavirus coverage case. Social Life 
denies a motion for preliminary injunction.6 The principal basis for that decision is the conclusion 
that the Coronavirus does not cause direct physical loss to property. Social Life famously states 
that the virus damages lungs, not printing presses. (Social Life Trans. at 5). Social Life holds that 
“this kind of business interruption needs some damage to the property to prohibit you from going.” 
(Social Life Trans. at 15). Cincinnati cited and relied on Social Life in its initial brief. But, Plaintiffs 
fail to address it, admitting its applicability and merit.  
As demonstrated below, Plaintiffs concede the Orders and COVID-19 did not cause a 
distinct, demonstrable, physical alteration of their property. Instead, Plaintiffs summarily assert, 
contrary to the Orders and the allegations of their Complaint, that they “suffered direct physical 
loss of the use of their property as a result of the global Coronavirus pandemic (COVID-19) and 
government closure orders that made their property uninhabitable and/or unusable for its intended 
business operation.” (Opp. p. 1). But, this is exactly the argument that is rejected in cases around 
the country that address the meaning of direct physical loss. These cases include the only cases 
addressing this issue in the Coronavirus context. Accordingly, this Court should reject Plaintiffs’ 
construction of the Policies as unreasonable and inconsistent with their plain language. 
C. 
Missouri Law, and the Law Nationally, Support Cincinnati’s Construction of 
the Policy. 
 
To the extent Plaintiffs purport to cite supporting cases, those cases involve language that 
does not appear in the Policies. Further, Plaintiffs rely on purported facts that are not alleged in 
                                            
6 No written opinion was issued in Social Life, but a copy of the hearing transcript reflecting the Court’s ruling and 
rationale was attached as Exhibit E to Cincinnati’s initial brief.  

 
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the Complaint. Accordingly, Plaintiffs’ arguments and cited cases are unavailing.7 
1. 
Plaintiffs’ Interpretation of the Policies is Unreasonable Because It Is 
Based on Language that Does Not Appear in the Policies. 
 
 
Cincinnati has established that a mere loss of use of property is not direct physical loss to 
that property. In response, Plaintiffs incorrectly contend that Mehl v. Travelers Home & Marine 
Ins. Co., No. 4:16-cv-01325 CDP, 2018 U.S. Dist. LEXIS 74552, at *2 (E. D. Mo. May 2, 2018), 
and “numerous other courts have held that loss of use of property constitutes ‘physical loss.’” (Opp. 
p. 7 & Ex. 1) (emphasis added). Mehl is distinguishable because the policy there expressly covered 
“loss of use,” using those very words. Mehl, 2018 U.S. Dist. LEXIS 74552, at *2.8 Unlike Mehl, 
the Policies here do not define “loss” or “damage” to include “loss of use”. As such, Mehl is simply 
irrelevant here. 
 
Plaintiffs also rely on Hampton Foods, Inc. v. Aetna Cas. & Sur. Co., 787 F.2d 349 (8th 
Cir. 1986). Plaintiffs contend that this so-called “relevant” and “controlling” case holds that the 
phrase direct physical loss is ambiguous because it was not defined. (Opp. pp. 1, 3, 5-6, 11-12). 
Plaintiffs are incorrect. Hampton concerns a building in imminent danger of collapse. Hampton, 
787 F.2d at 351. The building owner ordered immediate evacuation of all tenant businesses, 
including the insured’s. Id. Hampton removed its inventory and property from the building before 
it was eventually demolished and sold that property for salvage. Id. Hampton sought property 
coverage for business losses. Hampton finds that the policy there was ambiguous and therefore 
                                            
7 Further, to the extent Plaintiffs argue the Policies provide coverage because they do not contain a virus exclusion, 
Cincinnati established that the absence of an exclusion is irrelevant where there is no direct physical loss, and thus no 
coverage, in the first instance. (CIC Brf. pp. 19-20).Plaintiffs do not dispute this establishment. 
8 Plaintiffs note that Mehl cited Cincinnati Ins. Co. v. German St. Vincent Orphan Ass’n, Inc., 54 S.W.3d 661, 668 
(Mo. App. 2001) in conjunction with its holding the policy at issue was ambiguous. (Opp. P. 6). However, Mehl cited 
German St. Vincent for the general proposition that ambiguous policy language must be construed in favor of the 
insured, not that the language in the Policies here is ambiguous. But, as observed in German St. Vincent, where, as 
here, the policy language is plain and unambiguous”[c]ourts enforce insurance policies as written.” Id. at 668 
(emphasis added). 

 
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provided coverage. Id. at 352. Nevertheless, Hampton explicitly recognizes that direct physical 
loss requires actual, tangible damage to property. Thus, it holds that “Hampton suffered direct, 
concrete and immediate loss due to extraneous physical damage to the building. Id. (emphasis 
added). Here, the Plaintiffs’ factual allegations and the Orders show there was no physical damage 
or injury to property. Indeed, the CDC Guidelines and case authority show the Coronavirus 
presents no risk of physical loss to Plaintiffs’ property at all, because it can be wiped away, without 
causing any physical damage. (CIC Brf. pp. 18-19).  
Citing Mehl v. Travelers Home & Marine Ins. Co., No. 4:16-cv-01325 CDP; Hampton 
Foods, 787 F.2d 349; Port Auth. of New York & New Jersey v. Affiliated FM Ins. Co., 311 F.3d 
226, 231, 236 (3d Cir.2002); Manpower Inc. v. Ins. Co. of the State of Penn., No. 08C0085, 2009 
WL 3738099, at *2, *6 (E.D. Wis. Nov. 3, 2009);9 Prudential Prop. & Cas. Co. v. Lillard–Roberts, 
CV–01–1362–ST, 2002 WL 31495830, at *7-*8 (D. Or. June 18, 2002); Murray v. State Farm 
Fire & Cas. Co., 509 S.E.2d 1, 16–17 (W. Va. 1998); W. Fire Ins. Co. v. First Presbyterian 
Church, 437 P.2d 52, 55-56 (Colo. 1968); General Mills, Inc. v. Gold Medal Ins. Co, 622 N.W.2d 
147, 151-152 (Minn. App. 2001); Sentinel Mgmt. Co. v. New Hampshire Ins. Co., 563 N.W.2d 
296, 300 (Minn. App. 1997); Travco Ins. Co. v. Ward, 715 F. Supp. 2d 699, 702 (E.D. Va. 2010); 
Matzner v. Seaco Ins. Co., No. 96-0498-B, 1998 WL 566658, at *3 (Mass. Super. Ct. August 12, 
1998); Hughes v. Potomac Ins. Co., 18 Cal. Rptr. 650, 655 (Cal. Dist. Ct. App. 1962); Cooper & 
Olive Indus. v. Travelers Indem. Co., No. C-01-2400, 2002 WL 32775680, at *2 (N.D. Cal. Nov. 
4, 2002); Gregory Packaging, Inc. v. Travelers Prop. Cas., No. 2:12-cv-04418, 2014 WL 6675934, 
at *1 (D. N.J. Nov. 25, 2014), Plaintiffs contend  that courts applying Missouri law have concluded 
                                            
9 Manpower, like Hampton, involved a claim for loss of use of business personal property resulting from actual, 
structural damage to a building. Manpower expressly distinguished its holding from cases construing “direct physical 
loss” as required for business interruption coverage using language similar to the Policies here. Id. at *6. 

 
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that actual physical injury to property is not required. (Opp. p. 11). Alternatively, Plainiffs say that 
courts nationwide hold that physical loss or damage may occur without physical injury to property. 
(Opp. p. 12). But, without exception, each of the cases on which Plaintiffs rely is readily 
distinguishable. The most glaring differentiator is that most of the policies reviewed in these cases 
apply different policy language than the Cincinnati Policies. The policies in those cases state that 
they cover loss of property or expressly apply to loss of use of property. But, Cincinnati’s Policies 
cover direct physical loss or damage to property. They do not state coverage for loss of property 
or loss of use of property. Plaintiffs’ remaining cases involve actual, structural, physical loss or 
damage and thus are consistent with Cincinnati’s position here.10  
Likewise, the policy in Port Authority did not expressly require physical loss or damage 
“to” property. Port Authority, 311 F.3d at 231. In any event, Port Authority holds that there is no 
coverage for the insured’s alleged asbestos-related losses because “[t]he mere presence of asbestos, 
or the general threat of future damage from that presence, lacks the distinct and demonstrable 
character necessary for first-party insurance coverage.” Id. at 226. Here, even if the Complaint 
alleged the presence of COVID-19 on Plaintiffs’ premises, which it does not, Port Authority 
supports Cincinnati’s position that the mere presence of the virus does not constitute physical loss 
or damage, and neither does the general threat of future harm. 
                                            
10 Moreover, several cases have addressed the difference between policies covering physical loss “of” property, as 
opposed to those covering physical loss “to” property. See, e.g., Source Food, 465 F.3d at 838; Total Intermodal Servs. 
Inc. v. Travelers Prop. Cas. Co. of Am., No. CV 17-04908 AB (KSX), 2018 WL 3829767, at *3-4 (C.D. Cal. July 11, 
2018). These cases hold that even if coverage for loss “of” property may include “loss of use of property,” coverage 
for physical loss “to” property does not. Also, even if the phrase physical loss of property is construed to include 
purely financial loss where property has not sustained actual, tangible, injury or damage there is no way the phrase 
physical loss to property could reasonably encompass purely financial losses. Such a reading would render the Policy’s 
use of the word “to” meaningless. See, e.g., Total Intermodal, 2018 WL 3829767, at *4 (distinguishing MRI 
Healthcare Center, 187 Cal.App.4th 766 and Newman Myers, 17 F.Supp.3d 323 (“because the clauses on those cases 
differ from the Coverage clause here, it stands to reason that they also differ in meaning, such that ‘direct physical 
loss of’ should be construed differently from ‘direct physical loss to’ or ‘direct physical loss.’”); (Opp. 7). 
 

 
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Many of Plaintiffs’ cases, including Hampton, Manpower, Murray, General Mills, 
Sentinal, Lillard-Roberts, and First Presbyterian, also support Cincinnati because in each case 
there was a permanent physical alteration of the property, or the expressly insured “risk of” 
permanent physical alteration of the property. Here, there is no physical alteration of property, let 
alone any permanent physical alteration. It is undisputed the virus can be removed by cleaning and 
thus does not physically injure or damage property. See, e.g., Mastellone, 2008-Ohio-311, ¶ 61, 
175 Ohio App. 3d 23, 40, 884 N.E.2d 1130, 1143; Mama Jo’s, 2018 WL 3412974 at *9; Universal 
Image, 703 F.Supp.2d at 710, aff’d, 475 Fed.Appx. 569.11 Thus, none of these cases show the 
Policies provide coverage for Plaintiff’s purely financial losses.12 
 
For all of the coverages Plaintiffs seek, the Policies require direct physical loss or damage 
to property. The Complaint fails to identify any direct physical loss, anywhere, because there are 
no factual allegations of actual, tangible, permanent, physical alteration, to any property. As such, 
the Policies’ Business Income, Extra Expense, Civil Authority, Ingress and Egress, Dependent 
Property, and so-called Sue and Labor Coverages do not apply. 
II. 
Plaintiffs Do Not Allege Facts to Show the Requisite Prohibition or Prevention of 
Access to Their Property, as Required for the Policies’ Civil Authority and Ingress 
and Egress Coverages to Apply. 
 
 
In its initial brief, Cincinnati established that neither the Orders nor COVID-19 prohibited 
access to the Plaintiffs’ premises. (CIC Brf. pp. 22-24). Plaintiffs contend that whether access to 
                                            
11 Acord, Lillard–Roberts, CV–01–1362–ST, 2002 WL 31495830, at *8.  
12 Newman Myers, 17 F. Supp. 3d 323, is factually analogous to this case, and addresses and distinguishes several of 
the same cases Plaintiffs cite here. See Newman Myers, 17 F. Supp. 3d at 329-332 (“Newman Myer’s cases are, 
however, distinguishable. In each case there was some compromise to the physical integrity of the workplace. . . . The 
critical policy language here – “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.”) Rose’s 
similarly considers and distinguishes many of Plaintiffs’ cited cases. Rose’s, No. 2020 CA 002424 B at 5-7 (“[N]one 
of the cases cited by Plaintiffs stand for the proposition that a governmental edict, standing alone, constitutes a direct 
physical loss under an insurance policy.”) Rose’s instead adopts the well-reasoned authorities relied upon by 
Cincinnati. (Id. at 7-9). While Rose’s had not yet been decided at the time Cincinnati filed its initial brief, Cincinnati 
cited, and Plaintiffs failed to acknowledge or distinguish, Newman Myers. 

 
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their premises was prohibited or prevented is a factual issue, and thus not appropriate for 
determination on a motion to dismiss. However, the record for the purposes of Rule 12(b)(6) 
motion consists of the pleadings, exhibits, and other materials integral to the Complaint. (Id. pp. 
11-12).  Here, Plaintiffs’ allegations conflict with the Orders, so the Orders control. (Id. p. 12). As 
demonstrated, the Orders support Cincinnati and show that access to the Plaintiffs’ premises was 
not prohibited or prevented. (Id. at pp. 22-24).13 Thus, there is no Civil Authority or Ingress and 
Egress coverage. 
Conclusion 
 
The coverages sought by Plaintiffs under their commercial property policies all require 
there to be direct physical loss to property. Courts have widely held that this property insurance 
trigger requires physical alteration of property. More specifically, at least three courts have ruled 
on the direct physical loss issue in the context of the Coronavirus pandemic, and each held that the 
presence of the Coronavirus is not direct physical loss as a matter of law.  
Plaintiffs’ Complaint does not contain sufficient factual allegations to support a viable 
claim for relief on its face.  For the reasons established in its initial brief, and above, Cincinnati’s 
Motion to Dismiss should be granted. 
August 10, 2020. 
 
 
 
 
                                            
13 See also, Newman Myers, 17 F. Supp. 3d at 327 (dispute whether insured was entitled to coverage for business 
income and extra expenses resulting from its inability to access its office premises because the power company 
preemptively shut-off power in anticipation of flooding due to approach of Hurricane Sandy presented a “pure question 
of law” for the court). 

 
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Respectfully submitted by: 
DEFENDANT, THE CINCINNATI 
INSURANCE COMPANY 
 
  
 
 
 
 
 
 
WALLACE SAUNDERS 
BY:  /s/ Michael L. Brown__________ 
Michael L. Brown     KS# 21313 
Kelvin J. Fisher        KS#22014 
10111 West 87th Street 
Overland Park, KS 66212 
(913) 888-1000 FAX - (913) 888-1065 
mbrown@wallacesaunders.com 
kfisher@wallacesaunders.com 
AND 
LITCHFIELD CAVO LLP 
Daniel Litchfield      PHV 
Ericka Hammett     PHV 
303 West Madison Street 
Suite 300 
Chicago, IL 60606 
(312) 781-6669 FAX (312) 781-6630 
litchfield@litchfieldcavo.com  
hammett@litchfieldcavo.com  
ATTORNEYS FOR DEFENDANT THE 
CINCINNATI INSURANCE COMPANY 
 
 
 
 
 
 
 

 
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101920983.v1 
 
 
 
CERTIFICATE OF SERVICE 
I hereby certify that on August 10, 2020, I 
electronically filed the foregoing document with 
the Clerk of the Court using the CM/ECF system 
which will send a notice of electronic filing to: 
 
Brandon J.B. Boulware 
Boulware Law LLC 
1600 Genessee Street, Suite 416 
Kansas City, MO 64102 
brandon@boulware-law.com  
  
Todd Johnson 
Votava Nantz & Johnson, LLC 
9237 Ward Parkway, Suite 240 
Kansas City, MO 64114 
tjohnson@vnjlaw.com  
 
Jack Thomas Hyde 
Wagstaff & Cartmell 
4740 Grand Ave., Suite 300 
Kansas City, MO 64112 
jhyde@wcllp.com  
 
Thomas A. Rottinghaus 
Wagstaff & Cartmell 
4740 Grand Ave., Suite 300 
Kansas City, MO 64112 
trottinghaus@wcllp.com  
 
Tyler Hudson 
Wagstaff & Cartmell 
4740 Grand Ave., Suite 300 
Kansas City, MO 64112 
thudson@wcllp.com  
 
ATTORNEYS FOR PLAINTIFFS 
 
 
_/s/ Michael L. Brown    _________ 
For the Firm

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