Two recent Law360 guest articles, "COVID Insurance Cases Highlight Federal-State Court Tension," and "How 11th Circ. Ruling Dominated 2021 COVID Insurance Cases," point out that although insurance coverage generally involves questions of state law, many of the COVID-19 business interruption cases brought by businesses across the U.S. have been decided by federal courts.[1]

This situation, the former article's author posits, has led to the federal courts getting too far ahead of state courts before the latter could more substantially weigh in on, for example, the proper definition of "direct physical damage or loss" or the applicability of "virus" exclusions in the commercial property policies at issue.

The author, though, seems to concede, as of course he must, that there is not necessarily anything wrong with federal courts applying or predicting state law on coverage issues that are heavily litigated.

Instead, the author of "COVID Insurance Cases Highlight Federal-State Court Tension" contends that

what separates the pandemic coverage litigation from those other experiences is its intensity — that is, the volume of cases involving similar issues filed in a short period of time in almost every state in the union — and the fact that the majority of cases are in federal court.

The problem with the author's arguments is two-fold: (1) he improperly assumes there never has been another time in U.S. history where a mass casualty event has led to a string of federal courts weighing in on coverage issues before state courts did; and (2) more importantly, they fail to recognize that although state supreme courts may have final say on insurance law issues, there are no novel insurance law issues in the COVID-19 business interruption cases preventing federal courts from weighing in prior to hearing from state high courts.

For starters, the author offers no evidence to show that other high-volume coverage filings — such as pollution exclusions in the 1970s and 1980s, Hurricane Katrina or 9/11 — were litigated over a longer period of time, allowing state courts to weigh in before the federal courts decided many of those cases.

In fact, there is evidence to the contrary. For instance, federal courts have been called on to resolve how insurance applies to long-tail claims, which very much involve key issues concerning the costs to address long-term pollution and mass injury claims like asbestos.

Ultimately, these early federal decisions — such as the U.S. District Court for the District of Columbia's 1981 decision Keene Corp. v. Insurance Co. of North America or the U.S. Court of Appeals for the Ninth Circuit's 1991 decision in Aetna Casualty a& Surety Co. v. Pintlar Corp. — defined state law in important areas of coverage,[2] predating significant state court decisions on similar issues in an area of coverage law that involved massive numbers of underlying claims and has spawned scores of decisions in virtually every state.[3]

Another example is Hurricane Katrina, which generated hundreds of coverage claims, many of which were consolidated in federal district court — In re: Katrina Canal Breaches Litigation in the U.S. Court of Appeals for the Fifth Circuit; that litigation led to numerous decisions — most notably, those enforcing flood and wind-damage exclusions in homeowner policies — before state courts ruled on similar issues.[4]

Indeed, not only does our judicial system place no prohibition on federal courts deciding state law coverage disputes, such decisions are rendered routinely. And one mechanism available to policyholders who wish to resolve their cases at the state level is to ask federal courts to certify coverage questions to state supreme courts.

COVID-19 policyholders, however, have done that in a rather limited way and, when those motions have been filed, federal courts have refused to certify in nearly all instances,[5] including four of the circuits which have affirmed orders dismissing COVID-19 business interruption cases.[6]

The denial of certification reflects a fundamental point: COVID-19 business interruption cases do not involve novel questions that support state supreme court review. Instead, the existing state law applied to the alleged facts yields straightforward, common-sense outcomes. Indeed, when it comes to questions of contract interpretation, state courts are in no better position than federal courts to conduct the proper analysis.[7]

That was precisely the point made by the U.S. Court of Appeals for the Third Circuit last year when it vacated an order remanding a COVID-19 declaratory judgment claim to state court in DiAnoia's Eatery LLC v. Motorists Mutual Insurance Co.: "Federal and state courts are equally capable of applying settled state law to a difficult set of facts."[8]

Not surprisingly, then, the federal and state appellate courts have been reaching the same common-sense conclusion based on plain policy language that property insurance does not cover COVID-19 business interruption losses.

Eight federal circuit courts have now held that such policies were not intended to cover purely economic losses arising out of restrictions on the ability to use property — whether due to government orders or the unsafe conditions created by the spread of the virus among people.[9]

Recently, the U.S. Court of Appeals for the Seventh Circuit in Sandy Point Dental PC v. Cincinnati Insurance Co. upheld the dismissal of a business interruption claim where the insured claimed the "continuous presence of the coronavirus on or around [its] premises … rendered the premises unsafe and unfit for its intended use."[10]

As the court put it: "[D]eadly or not," COVID-19 "may be wiped off surfaces using ordinary cleaning materials, and it disintegrates on its own in a matter of days."[11]

The U.S. Court of Appeals for the Second Circuit in Kim-Chee LLC v. Philadelphia Indemnity Insurance Co. similarly concluded there is no coverage — even assuming the virus was present at an insured's location — where the complaint "did not allege that any part of the building or anything within it was damaged or to the point of repair, replacement, or total loss."[12]

And where appropriate, these federal circuits pointed to controlling state appellate authority as the basis for their decisions.[13] As the U.S. Court of Appeals for the Eleventh Circuit put it in Gilreath Family & Cosmetic Dentistry Inc. v. Cincinnati Insurance Co.:

the Georgia Court of Appeals has already explained the 'common meaning' of 'direct physical loss or damage,' holding that there must be 'an actual change in insured property' that either makes the property 'unsatisfactory for future use' or requires 'that repairs be made.'[14]

Significantly, four state appellate courts have joined the federal circuit courts in rejecting these COVID-19 business interruption claims. And there very well may be a fifth on the horizon.[15]

A justice on the Massachusetts Supreme Judicial Court, when surveying the current legal landscape, questioned the insured's counsel:

Isn't that troublesome when you don't have a single appellate court in the country adopting this view? We are talking about the Sixth Circuit, the Eighth Circuit, we are talking about the Seventh Circuit now, we are talking about a fairly distinguished number of appellate courts. We don't have one appellate court adopting your position.[16]

On top of that, the state appellate courts have also had no dissents. Up first was Inns-by-the-Sea v. California Mutual Insurance Co., where the California Court of Appeal for the Fourth District held an insured could not establish that its alleged losses were caused by "direct physical damage to or loss of" property.[17]

As "the closure orders demonstrate," the insured "would have had remained shut regardless of whether the virus was present in its facilities."[18] As the court aptly put it, the insured's property "did not change. The world around it did. And for the property to be useable again, no repair or change can be made to the property — the world must change."[19]

Inns by the Sea further explained why efforts to clean the premises would have made no difference:

[Consider] what would have taken place if Inns had thoroughly sterilized its premises to remove any trace of the virus after the Orders were issued. In that case, Inns would still have continued to incur a suspension of operations because the Orders would still have been in effect and the normal functioning of society still would have been curtailed. … Even if a cleaning crew Lysol-ed every inch of the restaurant, it could still not host indoor dining at full capacity.[20]

Inns by the Sea even addressed the same four non-COVID-19 California appellate decisions that the Ninth Circuit addressed in its opinion upholding the dismissal of a COVID-19 business interruption claim.[21]

In Sanzo Enterprises LLC v. Erie Insurance Exchange, the Ohio Court of Appeals for the Fifth Appellate District followed the U.S. Court of Appeals for the Sixth Circuit's lead in Santo's Italian Cafe,[22] finding it "well-reasoned and persuasive."[23]

The court further observed the Sixth Circuit "relied on dictionaries, a leading treatise, COVID-19-related case law, and Ohio intermediate appellate court law to reach its conclusion, after completing a thorough analysis."[24] Similarly, another Ohio appellate court adopted the reasoning of Santo's Café and its directive that "courts must honor the coverage the parties did — and did not — provide for in their written contracts of insurance."[25]

And despite the insured's allegations that COVID-19 particles were present on its property, in Indiana Repertory Theatre v. Cincinnati Casualty Co. the Indiana Court of Appeals held the property was "not destroyed or altered in a physical way that would require restoration or relocation."[26] These state appellate decisions are in addition to the host of state court trial judges across the country that have done the same.

The state courts acknowledge the same reality that federal courts acknowledge: Per the Indiana Court of Appeals, while "[m]illions of small business owners suffered losses due to the COVID-19 pandemic, and the ensuing worldwide financial crisis is dire," judges "cannot ignore well-established principles of insurance contract interpretation and add provisions in the Policy that do not exist."[27]

Finally, there is the specific point raised in "How 11th Circ. Ruling Dominated 2021 COVID Insurance Cases": Reliance on Mama Jo's Inc. v. Sparta Insurance Co. — a pre-COVID-19 federal appellate case that dealt with dust and debris from construction — has led district courts astray in rejecting COVID-19 business interruption claims.[28]

Mama Jo's hinged on, the article asserts, the fact that to remedy the dust and debris, the restaurant simply "performed daily cleaning" and used "normal cleaning methods, employing dust pans, hoses, rags, towels, and blowers."

But Mama Jo's, which itself cited two prior Florida appellate decisions, is consistent with other pre-COVID-19 cases which hold that temporary deposits on property surfaces, cleanable without harming the property, do not give rise to direct physical loss or damage.

More importantly, it is also consistent with Azalea Ltd. v. American States Insurance Co.,[29] a Florida appellate decision that the authors claim is "the only on-point commercial claim" under Florida law.

But Azalea, did not, as the article claims, "[eschew] a physical alteration requirement in finding coverage under Florida law."[30] Instead, Azalea involved a substance dumped into a sewage treatment system that "caused the destruction of a bacteria colony which was part of the sewage treatment process," requiring the insured to "drain the entire system" and hand chisel to remove the residue.[31]

As the Florida Court of Appeal for the First District put it, the colony "attached to and became part of the treatment facility structure. The facility could not operate or exist unless this colony was replaced."[32] The need to repair, restore or replace physically altered property is the sine qua non of business interruption coverage — it defines when the coverage ends.[33]

It is unclear whether the authors believe COVID-19 cannot be cleaned away with normal cleaning methods — and many courts have rejected that very notion, even without citing Mama Jo's — but that is irrelevant. As insureds themselves must acknowledge, COVID-19 particles have a short lifespan, and will not remain on property surfaces even if no cleaning is done.[34]

In the end, the underlying thesis of the article "How 11th Circ. Ruling Dominated 2021 COVID Insurance Cases" is also that of "COVID Insurance Cases Highlight Federal-State Court Tension": State courts, not federal courts, should be deciding insurance coverage disputes.[35]

However, that is simply not the law, nor is it required by any rule of comity or procedure.[36]

Erin Bradham is a partner, Doug Janicik is counsel and Keith Moskowitz is a partner at Dentons.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] These articles are among numerous Law360 articles that have been published over the past year or so concerning the "avalanche" of authority rejecting claims under commercial property policies for business interruption losses from the COVID-19 pandemic. Spirit Realty Capital, Inc. v. Westport Ins. Co ., No. 21-CV-2261, 2021 WL 4926016, at *3 (S.D.N.Y. Oct. 21, 2021); see, e.g., No Signs Of Turning, Tide Of Insurer COVID Wins Persists, https://www.law360.com/articles/1430571 (Oct. 13, 2021) (noting Sixth, Eighth, Ninth and Eleventh Circuits have ruled in favor of insurers).

[2] See, e.g., Keene Corp. v. Ins. Co. of N. Am ., 667 F.2d 1034 (D.C. Cir. 1981) (using "all sums" approach for allocation for longtail liabilities); Aetna Cas. & Sur. Co. v. Pintlar Corp. , 948 F.2d 1507 (9th Cir. 1991) (same; "Coverage is limited to 'damages' occurring during the policy period; it also includes 'damages' occurring after the period, as long as those 'damages' are caused by an 'occurrence' that is a release which results in injury during the policy."); see also Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980) (using "pro rata" rule, where policyholder's loss is divided proportionally among all liable insurers based on portion of loss occurring during time each insurer's policy was in place"); Porter v. Am. Optical Corp. , 641 F.2d 1128 (5th Cir. 1981) (same); Commercial Union Ins. Co. v. Sepco Corp ., 918 F.2d 920 (11th Cir. 1990) (same).

[3] See, e.g., Aerojet-General Corp. v. Transport Indem. Co. , 70 Cal.Rptr.2d 118 (Cal. 1997) (using "all sums" approach); Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co ., 769 N.E.2d 835 (Ohio 2002) (same); Allstate Ins. Co. v. Dana Corp. , 759 N.E.2d 1049 (Ind. 2001) (same); Caterpillar, Inc. v. Century Indem. Co ., No. 3-06-161, 2007 WL 7947740 (Ill. Ct. App. Feb. 2, 2007) (same); see also Consol. Edison Co. v. Allstate Ins. Co. , 774 N.E.2d 687 (N.Y. 2002) (adopting "pro rata" allocation); Public Serv. Co. v. Wallis & Cos ., 986 P.2d 924 (Colo. 1999) (same); Sharon Steel Corp. v. Aetna Cas. & Sur. Co ., 931 P.2d 127 (Utah 1997) (same).

[4] Compare In re Katrina Canal Breaches Litig ., 495 F.3d 191 (5th Cir. 2007) (enforcing flood exclusion), with Sher v. Lafayette Ins. Co. , 988 So.2d 186 (La. 2008) (enforcing flood exclusion and citing 5th Circuit's opinion in In re Katrina); compare 1544 Tchoupitoulas, LLC v. Century Sur. Co ., No. 06-1868, 2007 WL 9759307 (E.D. La. Apr. 24, 2007) (wind-damage); Duhan v. Allstate Indem. Co. , No. 06-3199, 2007 WL 9780363 (E.D. La. Sept. 7, 2007) (wind-damage), with Ganier v. Specialty Risk Assocs., Inc. , 977 So.2d 1089 (La. Ct. App. 2008) (wind-damage); cf. Leonard v. Nationwide Mut. Ins. Co ., 499 F.3d 419 (5th Cir. 2007) (applying anti-concurrent causation provision under Mississippi law); Corban v. USAA , 20 So.3d 601 (Miss. 2009) (same).

[5] A survey of PACER and Westlaw revealed 35 COVID-19 BI cases in which an insured filed a motion to certify in federal court; of those, 17 were filed after the district court granted a motion to dismiss or for judgment on the pleadings. See In re McLinn , 744 F.2d 677, 681 (9th Cir. 1984) ("Ordinarily ... a movant should not be allowed a second chance at victory when ... the district court employed a reasonable interpretation of state law." Thus, "particularly compelling reasons must be shown when certification is requested for the first time on appeal."); see also Thompson v. Paul , 547 F.3d 1055, 1065 (9th Cir. 2008) ("Otherwise, the initial federal court decision will be nothing but a gamble with certification sought only after an adverse ruling."). As of this date, 20 of the 35 motions were denied, and most others remain pending. It appears there are only two instances of certification to a state supreme court—South Carolina and Ohio—and the latter occurred before two Ohio intermediate appellate courts issued their decisions rejecting COVID-19 BI claims. See infra at nn. 22 & 24.

[6] 10012 Holdings, Inc. v. Sentinel Ins. Co ., 21 F.4th 216, 225 & n.4 (2d. Cir. 2021) (denying request to certify to New York Court of Appeals); Goodwill Indus. of Central Okla., Inc. v. Phila. Indem. Ins. Co. , 21 F.4th 704, 714 (10th Cir. 2021) (denying request to certify to Oklahoma Supreme Court); Terry Black's Barbecue, LLC v. State Auto. Mut. Ins. Co. , -- F.4th --, 2022 WL 43170, at *3 n.5 (5th Cir. Jan. 5, 2022) (denying request to certify to Texas Supreme Court); Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am. , 15 F.4th 885, 890 n.3 (9th Cir. 2021) (denying request to certify to California Supreme Court).

[7] See Micomonaco v. State of Wash ., 45 F.3d 316, 322 (9th Cir. 1995) (refusing certification where interpretation turned on "objective test," which state supreme court was "in no better position" to apply); In re Katrina Canal Breaches Litig ., 495 F.3d 191, 208 n.11 (5th Cir. 2007) (denying certification of policy interpretation question where state's contract interpretation rules provide federal court "with an adequate basis to decide this appeal"); Erie Ins. Grp. v. Sear Corp ., 102 F.3d 889, 892 (7th Cir. 1996) (same; "we receive ample assistance from general principles of contract interpretation and persuasive authority from other jurisdictions that have interpreted similar provisions"); TransAm. Ins. Co. v. Duro Bag Mfg. Co. , 50 F.3d 370, 372 (6th Cir. 1995) (denying certification; "[a]lthough Kentucky has not addressed the exact question at issue, it does have well-established principles to govern the interpretation of insurance contracts.").

[8] DiAnoia's Eatery, LLC v. Motorists Mut. Ins. Co ., 10 F.4th 192, 197 (3d Cir. 2021) (quotations omitted).

[9] See infra at n. 33 (6th, 7th, 8th & 11th Circuits); supra at n. 6 (2d, 5th, 9th & 10th Circuits).

[10] Sandy Point Dental, P.C. v. Cin. Ins. Co. , Nos. 21-1186, 21-1559, 21-1203, 2021 U.S. App. LEXIS 36399 (7th Cir. Dec. 9, 2021).

[11] Id. The Sixth and Eleventh Circuits have also rejected the "presence of COVID-19 on property surfaces or in the air" causes "physical loss or damage" to property. Bridal Expressions LLC v. Owners Ins. Co ., No. 21-3381, 2021 WL 5575753, at * 2 (6th Cir. Nov. 30, 2021) ("actual presence" theory "does not materially add anything to the '[loss of] use' theory" that Sixth Circuit previously rejected); Ascent Hosp. Mgt. Co. v. Emps. Ins. Co. of Wausau , No. 21-11924, 2022 WL 130722, at *2 (11th Cir. Jan. 14, 2022) (property with COVID-19 particles on its surface "can be immediately restored to its previous state by cleaning and disinfecting—no repair or replacement required").

[12] Kim-Chee LLC v. Philadelphia Indem. Ins. Co ., No. 21-1082-cv, 2022 WL 258569 (2d Cir. Jan. 28, 2022).

[13] Mudpie, 15 F.4th at 890 (analyzing "California courts [which] have interpreted coverage provisions similar to the Policy's 'direct physical loss of or damage to property' term"); 10002 Holdings, 21 F.4th at 220-21 ("We follow this holding [in Roundabout Theatre Co. v. Cont'l Cas. Co ., 302 A.D.2d 1, 751 N.Y.S.2d 4 (1st Dep't 2002)]."); Terry Black's, 2022 WL 43170, at *4 ("Starting with 'physical,' Texas courts have interpreted it to mean 'tangible.'").

[14] Gilreath Family & Cosmetic Dentistry, Inc. v. Cincinnati Ins. Co ., No. 21-11046, 2021 WL 3870697, at *2 (11th Cir. Aug. 31, 2021) (citing AFLAC Inc. v. Chubb & Sons, Inc.,  260 Ga. App. 306, 308, 581 S.E.2d 317 (2003)).

[15] https://www.law360.com/articles/1453009/mass-justices-hint-past-insurer-wins-may-sway-virus-suit.

[16] Id.

[17] Inns-by-the-Sea v. Cal. Mut. Ins. Co. , 71 Cal. App. 5th 688 (4th Dist. 2021).

[18] Id. at 705 (quotations & alterations omitted).

[19] Id. at 704 (emphasis added & quotations omitted). Just as the federal circuit courts have noted, the California Court of Appeal explained that "the phrase 'direct physical loss of' property was not intended to include the mere loss of use of physical property to generate income, without any other physical impact to property that could be repaired, rebuilt or replaced." Id. at 708.

[20] Id. at 704 ("all that is [or was] required" for the property "to return to full working order is for the government orders and restrictions to be lifted" (quotations & alterations omitted)). Even before Inns by the Sea was decided, more than 20 California state trial court orders had dismissed COVID-19 BI claims. Musso & Frank Grill Co., Inc. v. Mitsui Sumitomo Ins. USA Inc. , No. 20STCV16681, 2020 WL 7346569 (L.A. Cnty. Nov. 9, 2020); Vstyles Inc. v. Continental Cas. Co., No. RIC2003415, 2020 WL 10895579 (Riverside Cnty. Dec. 23, 2020); Geragos & Geragos Fine Arts Bldg., LLC v. Travelers Indem. Co. of Conn., No. 20GDCV00406 (L.A. Cnty. Dec. 18, 2020); Butter Nails and Waxing, Inc. v. Underwriters At Lloyd's of London, No. 20STCV22288 (L.A. Cnty. Jan. 21, 2021); John's Grill, Inc. v. Hartford Fin. Servs. Grp., Inc., No. CGC-20-584184, 2021 WL 1392096 (S.F. Cnty. Feb. 10, 2021); 837 Foothill Blvd. LLC v. Travelers Indem. Co. of Conn., No. 20STCV13929 (L.A. Cnty. Feb. 5, 2021); Gallio Corp. v. Scottsdale Ins. Co., No. 30-2020-01163925-CU-IC-CJC (Orange Cnty. Mar. 5, 2021); Saddle Ranch Sunset, LLC v. Fireman's Fund Ins. Co., No. 20STCV36531 (L.A. Cnty. Feb. 9, 2021); Starlight Cinemas, Inc. v. Mass. Bay Ins. Co., No. 20SMCV01181 (L.A. Cnty. Mar. 12, 2021); Child & Marton LLP v. Sentinel Ins. Co. , No. 20STCV33799 (L.A. Cnty. Feb. 18, 2021); Williams v. Sentinel Ins. Co., No. 20CV001729 (Monterey Cnty. Feb. 23, 2021); Shusha, Inc. v. Century-Nat'l Ins. Co ., No 20STCV25769 (L.A. Cnty. Feb. 19, 2021); G. Gordon Enters. v. AGCS Marine Ins. Co., No. 21STCV02950, 2021 WL 2388958 (L.A. Cnty. June 1, 2021); 2420 Honolulu Ave. LLC v. Travelers Indem. Co. of Conn., No. 20STCV14000, 2021 WL 4477688 (L.A. June 10, 2021); Apple Annie LLC v. Oregon Mutual Ins. Co., No. CGC-20-585712, 2021 WL 3878410 S.F. Cnty. June 16, 2021); Nature's Produce Co. v. Chubb Agribusiness, No. 20STCV17267, 2021 WL 4197669 (L.A. Cnty. June 30, 2021); Metro Fitness, Inc. v. Vantapro Specialty Ins. Co., No. 20STCV27654, 2021 WL 3834764 (L.A. Cnty. July 1, 2021); Occidental Grill Cigar Club LLC v. Crusader Ins. Co., No. CGC-21-590411, 2021 WL 5229641 (S.F. Cnty. July 15, 2021); Crunch Holdings LLC v. Zurich Am. Ins. Co., No. CGC-20-587340 (S.F. Cnty. July 29, 2021); Spaghettini v. Fireman's Fund Ins. Co., No. SCV-266378 (Sonoma Cnty. Aug. 31, 2021); Chaos Enters., Inc. v. Hartford Fire Ins. Co., No. 20STCV33507 (L.A. Cnty. Sept. 29, 2021); Yurok Tribe v. Lexington Ins. Co., No. CV2100805 (Humboldt Cnty. Oct. 19, 2021); Pacific Lodging Grp. LP v. Sequoia Ins. Co., No. 21CV376099 (Santa Clara Cnty. Sept. 21, 2021); Best Rest Motel Inc. v. Sequoia Ins. Co., No. 37-2020-00015679 (San Diego Cnty. Oct. 22, 2021); AmeriMont Acad. Inc. v. Century Nat'l Ins. Co., No. 30-2020-01158229 (Orange Cnty. Nov. 9, 2021).

[21] Compare Inns by the Sea, 71 Cal.App.5th at 699, 701, 706 (citing MRI Healthcare Ctr. of Glendale, Inc. v. State Farm Gen. Ins. Co ., 187 Cal.App.4th 766 (2010), Doyle v. Fireman's Fund Insurance Co., 21 Cal.App.5th 33 (2018); Ward Gen. Ins. Servs., Inc. v. Emps. Fire Ins. Co . 114 Cal.App.4th 548 (2003); and Hughes v. Potomac Ins. Co. of D.C. , 199 Cal.App.2d 239 (1962) ("[p]laintiff's operations are not what is insured—the building and the personal property in or on the building are" (quotations & alterations omitted)), with Mudpie, 15 F.4th at 890-92 (same; "direct physical loss of or damage to" is not "synonymous with 'loss of use'").

[22] Santo's Italian Café LLC v. Acuity Ins. Co., No. 21-3068, 2021 U.S. App. LEXIS 28720 (6th Cir. Sep. 22, 2021), infra at n. 33.

[23] -- N.E.3d --, No. 21-CAE-06-26, 2021 WL 5816448, at 45 (5th Dist. Dec. 7, 2021).

[24] Id.

[25] Nail Nook, Inc. v. Hiscox Ins. Co. , -- N.E.3d --, No. 110341, 2021 WL 5709971, at 32 (8th Dist. Dec. 2, 2021) (quotations omitted) (affirming dismissal of COVID-19 BI claim).

[26] Ind. Repertory Theatre v. Cincinnati Cas. Co ., -- N.E.3d --, No. 21A-PL, 2022 WL 30123, at *6 (Jan. 4, 2022).

[27] Id.; see also Nail Nook, 2021 WL 5709971, at 32 ("[e]fforts to push coverage beyond its terms creates a mismatch, an insurance product that covers something no one paid for and, worse, runs the risk of leaving insufficient funds to pay for perils that insureds did pay for" (quotations omitted)).

[28] Mama Jo's, Inc. v. Sparta Ins. Co., No. 17-cv-23362-KMM, 2018 WL 3412974 (S.D. Fla. June 11, 2018), aff'd 823 F. App'x 868 (11th Cir. 2020).

[29] Azalea, Ltd. v. Am. States Ins. Co. , 656 So. 2d 600 (Fla. Dist. Ct. App. 1995).

[30] Id.

[31] 656 So.2d at 601-02.

[32] Id. at 602.

[33] See, e.g., Mudpie, 15 F.4th at 892 ("That [BI] coverage extends only until covered property is repaired, rebuilt, or replaced, or the business moves to a new permanent location suggests the Policy contemplates providing coverage only if there are physical alterations to the property."); Santo's Italian Café LLC v. Acuity Ins. Co ., 15 F.4th 398, 403 (6th Cir. 2021) ("Baked into this [BI] timing provision is the understanding that any covered 'direct physical loss of or damage to' property could be remedied by repairing, rebuilding, or replacing the property or relocating the business. … There is nothing to repair, rebuild, or replace that would allow the resumption of in-person dining operations. What the restaurant needed was an end to the ban on in-person dining, not the repair, rebuilding, or replacement of any of its property."); Oral Surgeons, P.C. v. Cincinnati Ins. Co ., 2 F.4th 1141, 1144 (8th Cir. 2021) ("[p]roperty that has suffered physical loss or physical damage requires restoration"); Sandy Point, 20 F.4th at 333 ("Without a physical alteration to property, there would be nothing to repair, rebuild, or replace"); Gilreath Family, 2021 WL 3870697, at *2 ("[T]he shelter-in-place order … did not damage or change the property in a way that required its repair or precluded its future use …."); Terry Black's, 2022 WL 43170, at *4 ("This period [of restoration] necessarily contemplates a tangible alteration to the property that requires repair, rebuilding, or replacement.").

[34] See, e.g., Ascent Hosp., 2022 WL 130722, at *2-3; Berkseth-Rojas v. Aspen Am. Ins. Co ., No. 3:20-cv-00948, 2021 WL 2936033 at *5, (N.D. Tex. July 13, 2021); Food for Thought Caterers Corp. v. Sentinel Ins. Co., 524 F.Supp.3d 242, 249 (S.D.N.Y. 2021); Bachman's Inc. v. Florists' Mut. Ins. Co. , 525 F.Supp.3d 984, 988-89 (D. Minn. 2021); Select Hosp. LLC v. Strathmore Ins. Co ., 533 F.Supp.3d 31, 36 (D. Mass. 2021); Kpokos, Inc. v. Soc'y Ins., No. 2020-CH-04763, 2021 WL 4700217 at *7 (Cook Cnty., Ill. Cir. Ct., Sept. 20, 2021); Sukkah Miami Beach Acquisitions, LLC v. Zurich Am. Ins. Co., No. 2020-017923-CA-44, 2021 WL 3841784, at *3 (Fla. Cir. Ct. June 18, 2021).

[35] E.g., Sandy Point, 20 F.4th at 335 ("deadly or not, [the virus] … disintegrates on its own in a matter of days"); Kim-Chee LLC v. Phila. Indem. Ins. Co ., 535 F.Supp.3d 152, 159 (W.D.N.Y. 2021) ("The virus is short-lived—if 'life' is the correct expression—and is rendered harmless by the passage of a few days of exposure to the environment.").

[36] See Sprint Commc'ns, Inc. v. Jacobs , 571 U.S. 69, 72 (2013) ("In the main, federal courts are obliged to decide cases within the scope of federal jurisdiction."); see also Meredith v. City of Winter Haven , 320 U.S. 228, 234 (1943) ("[I]t has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment.").