Rule 28(j) Response Letter, Restaurant Law Center — Oral Surgeons, P.C. v. The Cincinnati Ins. Co., No 20-3211

Summary

A letter dated March 18, 2021 from Gabriel K. Gillett, counsel for amicus Restaurant Law Center, to Eighth Circuit Clerk of Court Michael E. Gans in Oral Surgeons, P.C. v. The Cincinnati Insurance Co., No. 20-3211, set for oral argument on April 14, 2021. Responding under Fed. R. App. P. 28(j) to Cincinnati's letter citing three trial-court decisions from Iowa, Minnesota and Missouri, it says none binds the court and each is on appeal. It cites four decisions, including Henderson Road Restaurant Systems v. Zurich and In re Society Insurance Co., finding that policyholders adequately alleged that executive orders caused physical loss, and argues that dismissal at the pleading stage is inappropriate.

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353 N. CLARK STREET CHICAGO, IL 60654-3456
CHICAGO   LONDON   LOS ANGELES   NEW YORK   WASHINGTON, DC
WWW.JENNER.COM
March 18, 2021
Michael E. Gans
Clerk of Court
United States Court of Appeals for the Eighth Circuit
Thomas F. Eagleton Courthouse
111 South 10th Street
St. Louis, MO 63102
Re:
Oral Surgeons, P.C. v. The Cincinnati Ins. Co. (“Cincinnati”), No 20-3211
Response to Fed. R. App. P. 28(j) Supplemental Authority Letter
Oral argument scheduled for April 14, 2021
Dear Mr. Gans:
Pursuant to Rule 28(j), amicus Restaurant Law Center responds to Cincinnati’s
letter citing three trial-court decisions from Iowa, Minnesota, and Missouri. None
binds this court and each is being appealed. They are thus no basis for
affirmance.
More
importantly,
Cincinnati’s
letter
ignores
recent
opinions
finding
policyholders adequately alleged executive orders caused “physical loss or
damage.” These decisions—which involve policy-interpretation principles like
Iowa’s, and policy language and allegations similar to those here—show courts
disagree about whether such allegations state a claim and thus that pleading-
stage dismissal is inappropriate.

Henderson Road Restaurant Systems, Inc. v. Zurich American Insurance
Co., 2021 WL 168422, *10 (N.D. Ohio Jan. 19, 2021): executive orders
caused “physical loss” because “properties could no longer be used for
their intended purposes—as dine-in restaurants.”

Elegant Massage, LLC v. State Farm Mut. Auto. Ins. Co., 2020 WL 7249624,
*6-10 (E.D. Va. Dec. 9, 2020): “if Defendants wanted to limit liability of
‘direct physical loss’ to strictly require structural damage to property, then
Defendants, as the drafters of the policy, were required to do so explicitly.”
Gabriel K. Gillett
Tel  +1 312 840 7220
ggillett@jenner.com
Appellate Case: 20-3211     Page: 1      Date Filed: 03/18/2021 Entry ID: 5016317

March 18, 2021
Page 2

In re Society Insurance Co., MDL 2964, 2021 WL 679109, *8-10 (N.D. Ill.
Feb. 22, 2021): “a reasonable jury can find that the Plaintiffs did suffer a
direct ‘physical’ loss of property” because “shutdown orders do impose a
physical limit: the restaurants are limited from using much of their
physical space.”

Derek Scott Williams PLLC v. Cincinnati Ins. Co., 2021 WL 767617, *4 (N.D.
Ill. Feb. 28, 2021): “a reasonable factfinder could find that the term
‘physical loss’ is broad enough to cover … a deprivation of the use of its
business premises.”
These decisions reinforce the core points in the Law Center’s brief.
Restaurateurs should not have to hire lawyers to understand the plain language
of their policies. Br. 17-21. Settled policy-interpretation principles give effect to
all words, ascribe ordinary meaning to undefined terms, and construe
ambiguities in favor of reasonable policyholders’ expectations. Id. 16-21.
Consistent
with
these
rules—and
longstanding
precedent—restaurants
adequately allege executive orders caused “physical loss” by dispossessing them
of property and rendering their property nonfunctional. Id. 16-27.
Sincerely,
/s/Gabriel K. Gillett
Gabriel K. Gillett
cc:  Counsel of record (via ECF)
Appellate Case: 20-3211     Page: 2      Date Filed: 03/18/2021 Entry ID: 5016317

CHICAGO   LONDON   LOS ANGELES   NEW YORK   WASHINGTON, DC
WWW.JENNER.COM
CERTIFICATE OF SERVICE
I, Gabriel K. Gillett, an attorney, hereby certify that on March 18, 2021, I
caused the foregoing Rule 28(j) Letter to be electronically filed with the Clerk of
the Court for the United States Court of Appeals for the Eighth Circuit by using
the CM/ECF system. I certify that all participants in this case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Gabriel K. Gillett
     Gabriel K. Gillett
Appellate Case: 20-3211     Page: 3      Date Filed: 03/18/2021 Entry ID: 5016317

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