Law firm Stewart Smith secured dismissal with prejudice in a putative class action in which the insured, a restaurant, sought coverage for business losses stemming from the COVID-19 pandemic and related government shut down orders. Consistent with Pennsylvania law and precedent set by the United States Court of Appeals for the Third Circuit, the court held that neither risk of contamination, contamination that can be cleaned or sanitized, nor mere loss of use constitutes physical loss or damage necessary for business income, extra expense, and civil authority coverage to apply, regardless of the fact the policy did not contain a virus exclusion.
Independence Restaurant Group d/b/a Independence Beer Garden v. Certain Underwriters at Lloyd’s, London (E.D. Pa. 2021).