Opinion
CASE NO. 20-23407-CIV-SINGHAL/MCALILEY
2021-02-22
15 OZ FRESH & HEALTHY FOOD LLC, individually and on behalf of all others similarly situated, Plaintiff, v. UNDERWRITERS AT LLOYD'S LONDON KNOWN AS SYNDICATES AML 2001, WBC 5886, MMX 2010, AND SKB 1897, Defendant.
Aaron Samuel Podhurst, Lea Pilar Bucciero, Pablo Rojas, Kristina Marie Infante, Matthew Weinshall, Steven Craig Marks, Podhurst Orseck, P.A., Miami, FL, for Plaintiff. Armando Pedro Rubio, Fields Howell, Miami, FL, for Defendant.
Aaron Samuel Podhurst, Lea Pilar Bucciero, Pablo Rojas, Kristina Marie Infante, Matthew Weinshall, Steven Craig Marks, Podhurst Orseck, P.A., Miami, FL, for Plaintiff.
Armando Pedro Rubio, Fields Howell, Miami, FL, for Defendant.
ORDER GRANTING DISMISSAL WITH PREJUDICE
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on the Motion to Dismiss the Complaint (DE [13]) filed by Defendant Underwriters at Lloyd's London Known as Syndicates AML 2001, WBC 5886, MMX 2010, and SKD 1897. Plaintiff 15 Oz Fresh & Healthy Food LLC has filed a Response in Opposition (DE [15]), and Defendant has filed a Reply (DE [17]). The Court has also considered the Notices of Supplemental Authority filed by Plaintiff (DE [19]) and Defendant (DE [18]). For the reasons discussed below, the Court grants Defendant's Motion to Dismiss the Complaint with prejudice.
I. BACKGROUND
Plaintiff operates a restaurant in Miami Beach, Florida, that is insured by an all-risks policy issued and underwritten by Defendant. Compl. ¶¶ 1–3, 19–20 (DE [1]). The policy allegedly requires Defendant to pay for all losses sustained by "covered causes of loss," which is defined as "direct physical loss" unless specifically excluded. Id. ¶ 21. Plaintiff alleges that the policy "protects Plaintiff against a loss of business income due to a suspension of the restaurant's operations," which is known as "business interruption" coverage. Id. ¶ 5. Plaintiff further alleges that the policy includes "civil authority coverage," which covers loss of business income "caused by the action of a civil authority prohibiting access to the restaurant." Id. ¶ 6. The policy also includes an "extra expense" provision, which covers expenses incurred to "minimize the suspension of business." Id. ¶ 30.
Beginning in March 2020, because of COVID-19, Plaintiff alleges that it was "forced to suspend business operations at the restaurant," and "[r]elated actions of civil authorities also prohibited access to and occupancy of the restaurant." Id. ¶ 8. Specifically, Plaintiff alleges that the civil authorities’ actions—that is, executive orders—have required the restaurant "to, at various times, restrict or forbid access to the restaurant, physically alter or restrict operations at the restaurant, and cease or restrict its functional use of the restaurant." Id. ¶ 46. COVID-19 and the civil authority actions have also allegedly "damage[ed] the property." Id. ¶ 48.
Because of Defendant's purported failure to pay for Plaintiff's covered losses and expenses, Plaintiff filed a six-count Class-Action Complaint, alleging declaratory relief (count I) and breach of contract (count II) on behalf of the business income coverage class, id. ¶¶ 74–93; declaratory relief (count III) and breach of contract (count IV) on behalf of the extra expense coverage class, id. ¶¶ 94–113; and declaratory relief (count V) and breach of contract (count VI) on behalf of the civil authority coverage class, id. ¶¶ 114–33.
Defendant now moves to dismiss the Complaint for failure to state a claim, asserting that: (1) the Complaint fails to allege direct physical loss of or damage to the insured property; (2) the Complaint fails to allege a valid "civil authority" claim because access to the restaurant was not prohibited; and (3) coverage is barred by the microorganism and contamination/pollution exclusions.
Plaintiff responds that: (1) given the parties’ conflicting interpretations of the policy, Defendant's arguments are premature and are better suited for a motion for summary judgment; (2) even on the merits, Plaintiff has sufficiently alleged direct physical loss and civil authority coverage because it was forced to suspend operations; and (3) no policy exclusion bars coverage.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Although a court must accept as true all well-pleaded allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. ; see also Davila v. Delta Air Lines, Inc. , 326 F.3d 1183, 1185 (11th Cir. 2003) ("[C]onclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." (citation omitted)).
Regarding insurance policies, under Florida law, "insurance contracts are construed according to their plain meaning," and "[a]mbiguities are construed against the insurer and in favor of coverage." Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So. 2d 528, 532 (Fla. 2005). "[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision." Garcia v. Fed. Ins. Co. , 969 So. 2d 288, 291 (Fla. 2007) (quoting Taurus Holdings , 913 So. 2d at 532 ). If a term is undefined in a policy, a court "may consult references commonly relied upon to supply the accepted meanings of words." See id. at 291–92 ; see also Hyman v. Nationwide Mut. Fire Ins. Co. , 304 F.3d 1179, 1188 (11th Cir. 2002) ("Because none of the terms in that provision are defined in the policy, we accord each its ordinary meaning." (citation omitted)). The court must "look at the policy as a whole and give every provision its full meaning and operative effect." Hyman , 304 F.3d at 1186 (citations omitted). At the motion-to-dismiss stage, the burden is on the plaintiff to "sufficiently allege that [its] purported losses are covered under the Polic[y]." Island Hotel Props., Inc. v. Fireman's Fund Ins. Co. , 2021 WL 117898, at *2 (S.D. Fla. Jan. 11, 2021) (alterations in original) (quoting El Novillo Rest. v. Certain Underwriters at Lloyd's, London , 505 F. Supp. 3d 1343, 1345–46 (S.D. Fla. Dec. 7, 2020) ).
III. DISCUSSION
The parties disagree about whether Plaintiff has sufficiently stated a claim for a covered loss under the business income, extra expense, and civil authority provisions of the policy. Those provisions state:
A. Coverage
1. Business Income
...
We will pay for the actual loss of Business Income you sustain due to the necessary "suspension" of your "operations" during the "period of restoration". The "suspension" must be caused by direct physical loss of or damage to property at premises which are described in the Declarations and for which a Business Income Limit Of Insurance is shown in the Declarations. The loss or damage must be caused by or result from a Covered Cause of Loss.
...
2. Extra Expense
...
b. Extra Expense means necessary expenses you incur during the "period of restoration" that you would not have incurred if there had been no direct physical loss or damage to property caused by or resulting from a Covered Cause of Loss.
...
(DE [13-1], at 39 ) (italic emphasis added).
The cited page numbers of the policy (DE [13-1]) refer to the CM/ECF printed page number.
With respect to the business income and extra expense provisions, the policy defines "period of restoration" as the period that:
a. Begins:
(1) 72 hours after the time of direct physical loss or damage for Business Income Coverage; or
(2) Immediately after the time of direct physical loss or damage for Extra Expense Coverage;
caused by or resulting from any Covered Cause of Loss at the described premises; and
b. Ends on the earlier of:
(1) The date when the property at the described premises should be repaired, rebuilt or replaced with reasonable speed and similar quality; or
(2) The date when business is resumed at a new permanent location.
(DE [13-1], at 47) (italic emphasis added).
Lastly, the civil authority provision states:
5. Additional Coverages
a. Civil Authority
...
When a Covered Cause of Loss causes damage to property other than property at the described premises , we will pay for the actual loss of Business Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described premises , provided that both of the following apply:
(1) Access to the area immediately surrounding the damaged property is prohibited by civil authority as a result of the damage , and the described premises are within that area but are not more than one mile from the damaged property; and
(2) The action of civil authority is taken in response to dangerous physical conditions resulting from the damage or continuation of the Covered Cause of Loss that caused the damage , or the action is taken to enable a civil authority to have unimpeded access to the damaged property.
Civil Authority Coverage for Business Income will begin 72 hours after the time of the first action of civil authority that prohibits access to the described premises and will apply for a period of up to four consecutive weeks from the date on which such coverage began.
...
(DE [13-1], at 40) (italic emphasis added).
Here, Defendant argues that dismissal is warranted because the business income and extra expense provisions cover losses resulting only from "direct physical loss of or damage to" the insured property, and purely economic interruptions in business caused by COVID-19 do not satisfy this plain and ordinary meaning under Florida law. With respect to the civil authority provision, Defendant argues that Plaintiff's conclusory allegations are insufficient to show that this is a situation where access to the insured property was prohibited by an order of civil authority resulting from physical damage to nearby property.
As an initial matter, the Court aligns itself with other courts that have granted motions to dismiss complaints for failure to state a claim related to COVID-19 losses. See, e.g. , Raymond H Nahmad DDS PA v. Hartford Cas. Ins. Co. , 499 F. Supp. 3d 1178, 1184–85 (S.D. Fla. Nov. 2, 2020) (collecting cases). Thus, contrary to Plaintiff's assertion, Defendant's arguments are not premature at this stage.
Turning to the merits, because the policy does not define what constitutes "direct physical loss of or damage to" the insured property, the Court must give these terms their plain and ordinary meaning. See Hyman , 304 F.3d at 1188. The plain language of the business income and extra expense provisions "require[ ] direct physical loss or damage to the ... premises in order to trigger payment." See Lubell & Rosen, LLC v. Sentinel Ins. Co., Ltd. , 2016 WL 8739330, at *4 (S.D. Fla. June 10, 2016) (construing a business income provision with the same language requiring "direct physical loss of or physical damage to the property"). Coverage does not exist where an insured "fail[s] to plead facts showing physical property damage" caused by COVID-19 government shutdown orders. Infinity Exhibits, Inc. v. Certain Underwriters at Lloyd's London Known as Syndicate PEM 4000 , 489 F.Supp.3d 1303, 1307 (M.D. Fla. 2020) (collecting cases).
Although the Eleventh Circuit has not yet squarely addressed these policy terms in the context of damages resulting from COVID-19, a case construing these terms in the pre-pandemic context further supports dismissal: Mama Jo's Inc. v. Sparta Insurance Co. , 823 F. App'x 868 (11th Cir. 2020). In Mama Jo's , like here, the policy generally covered "direct physical loss of or damage to Covered Property ... caused by or resulting from any Covered Cause of Loss." Id. at 871 (omission in original). The business income and extra expense provision stated that the insurer would pay for "the actual loss of Business Income you sustain due to the necessary ‘suspension’ of your ‘operations’ during the ‘period of restoration,’ " and the " ‘suspension’ must be caused by direct physical loss of or damage to covered property." Id. The insured submitted a claim for dust and debris generated by nearby roadway construction, which required the insured to use its normal cleaning methods but also resulted in a decrease in customer traffic to the restaurant. Id. The district court granted the insurer's motion for summary judgment, concluding that the insured "failed to establish that it suffered a direct physical loss that would trigger coverage." Id. at 870.
On appeal, the Eleventh Circuit affirmed the district court's ruling on the general coverage claim for cleaning, holding that, "under Florida law, an item or structure that merely needs to be cleaned has not suffered a ‘loss’ which is both ‘direct’ and ‘physical.’ " Id. at 879 (citations omitted). The Eleventh Circuit explained that
Florida's District Court of Appeals for the Third District has addressed the definition of "direct physical loss": "A ‘loss’ is the diminution of value of something [ ]. Loss, Black's Law Dictionary (10th ed. 2014). ‘Direct’ and ‘physical’ modify loss and impose the requirement that the damage be actual."
Id. (alteration in original) (quoting Homeowners Choice Prop. & Cas. v. Maspons , 211 So. 3d 1067, 1069 (Fla. 3d DCA 2017) ). Because the insured's public adjuster testified that " ‘cleaning and painting’ was all that was required" to resolve the dust and debris and that there was no need to remove or replace any items from the restaurant at that time, there was no direct physical loss under Florida law. Id.
Similarly, with respect to the business income provision, the Eleventh Circuit further held that even if the insured had shown that its operations were suspended, it failed to establish "that it suffered a direct physical loss of or damage to its property." Id. "Conceivably, a slowdown caused by closing parts of the restaurant for cleaning could be attributed to a ‘period of restoration.’ " Id. at 880. Nevertheless, the Eleventh Circuit concluded that the insurer was entitled to summary judgment in its favor because the insured failed to show that its suspension of operations was "caused by direct physical loss of or damage to property." Id.
The Middle District of Florida has extended Mama Jo's to the COVID-19 context and ruled that both Florida law and the policy's plain language—"direct physical loss of or damage to property"—require "actual, concrete damage" to trigger coverage. Infinity Exhibits , 489 F.Supp.3d at 1307. This Court agrees, and it is hardly alone. See, e.g. , Rococo Steak, LLC v. Aspen Specialty Ins. Co. , 515 F. Supp. 3d 1218, 1225–26 (M.D. Fla. Jan. 27, 2021) ; Island Hotel Props., Inc. v. Fireman's Fund Ins. Co. , 2021 WL 117898, at *3 (S.D. Fla. Jan. 11, 2021) ; Mena Catering, Inc. v. Scottsdale Ins. Co. , 512 F. Supp. 3d 1309, 1318–19 (S.D. Fla. Jan. 11, 2021) ; Edison Kennedy, LLC v. Scottsdale Ins. Co. , 510 F. Supp. 3d 1116, 1122–24 (M.D. Fla. Jan. 4, 2021) ; Emerald Coast Rests., Inc. v. Aspen Specialty Ins. Co. , 2020 WL 7889061, at *2 (N.D. Fla. Dec. 18, 2020) ; Prime Time Sports Grill, Inc. v. DTW 1991 Underwriting Ltd. , 508 F. Supp. 3d 1170, 1177–79 (M.D. Fla. Dec. 17, 2020) ; SA Palm Beach LLC v. Certain Underwriters at Lloyd's, London , 506 F. Supp. 3d 1248, 1254–55 (S.D. Fla. Dec. 9, 2020) ; El Novillo Rest. v. Certain Underwriters at Lloyd's, London , 505 F. Supp. 3d 1343, 1350–51 (S.D. Fla. Dec. 7, 2020) ; Raymond H Nahmad DDS PA , 499 F. Supp. 3d at 1187–88. But see Urogynecology Specialist of Fla. LLC v. Sentinel Ins. Co., Ltd. , 489 F.Supp.3d 1297, 1303 (M.D. Fla. 2020) (denying insurer's motion to dismiss and declining to "make a determination of coverage at this stage" because the entire policy was not provided to the court, and there was not yet "binding case law on the issue of the effects of COVID-19 on insurance contracts virus exclusions").
Moreover, Plaintiff attempts to circumvent the requirement to plead actual physical loss or damage to the property by emphasizing that "it completely lost the ability to occupy the property, to use the property for its intended purpose, and to physically conduct its business at the property." Resp. in Opp'n 8 (DE [15]) (citing Compl. ¶¶ 48–52 (DE [1])). This attempt is unavailing. "[U]nder Florida law, loss of use of property for its intended purpose does not constitute ‘direct physical loss.’ " Café La Trova, LLC v. Aspen Specialty Ins. Co. , 519 F. Supp. 3d 1167, 1179 (S.D. Fla. Feb. 16, 2021). Plaintiff's arguments here are similar to the plaintiff's arguments in Atma Beauty, Inc. v. HDI Global Specialty SE , 2020 WL 7770398 (S.D. Fla. Dec. 30, 2020), which the court rejected:
On its face, Plaintiff's Complaint fails to properly allege that its claims are covered under the plain language of the Policy. Plaintiff alleges suspension of business operations, loss of access to the salon, loss of business income, and incurrence of extra expenses, as well as a diminution of value and intended use of the salon. However, Plaintiff fails to allege the Policy's threshold requirement for coverage: direct physical loss or damage to its property or any nearby property. Stated differently, Plaintiff's Complaint fails to clearly articulate the actual physical loss or damage to the salon. While Plaintiff argues that a loss of functionality of, access to, or intended use of the salon constitutes physical loss or damage, it is not supported by the plain language of the Policy or Florida law.
Id. at *4 ; see also Sun Cuisine, LLC v. Certain Underwriters at Lloyd's London , 2020 WL 7699672, at *3 (S.D. Fla. Dec. 28, 2020) (same); Prime Time Sports Grill , 508 F. Supp. 3d at 1178–79 ("The suspension was not caused by tangible damage. Instead, the government mandated a statewide closure of bars and restaurants due to the pandemic. Plaintiff has not alleged any tangible damage whatsoever." (footnotes omitted)). The same is true here.
Plaintiff also alleges that its losses are attributable, at least in part, to the "presence of COVID-19." See Compl. ¶¶ 38, 50 (DE [1]). Such conclusory allegations are insufficient. See Island Hotel Props. , 2021 WL 117898, at *4 ("As an attempt to circumvent the physical loss or damage requirement, Plaintiff alleges that COVID-19 was ‘present’ at the Properties. But, in its Response, Plaintiff admits that this allegation ‘may well be conclusory.’ Indeed, it is." (record citations omitted)); Mena Catering , 512 F. Supp. 3d at 1318 ("There is no ‘direct physical loss’ where the alleged harm consists of the mere presence of the virus on the physical structure of the premises." (citations omitted)). Even if COVID-19 was, in fact, present at the restaurant, this does not constitute physical damage sufficient to trigger coverage. See Rococo Steak , 515 F. Supp. 3d at 1225 ("[N]either physical contamination by COVID-19 nor a decrease in business constitutes direct physical loss or damage.").
Despite the overwhelming majority of cases within this circuit supporting Defendant's position, Plaintiff primarily relies on an out-of-circuit case: Studio 417, Inc. v. Cincinnati Insurance Co. , 478 F. Supp. 3d 794 (W.D. Mo. 2020). In Studio 417 , the policies covered "accidental physical loss or accidental physical damage." Id. at 800–01. The district court rejected the defendant's argument that this provision "require[d] a tangible, physical alteration," instead ruling that the court was required to give meaning to both "loss" and "damage." Id. at 801. The court then cited case law—none within Florida or the Eleventh Circuit—to support its interpretation. See id. The Studio 417 court further declined to adhere to cases supporting the defendant's position, finding that those cases "were decided at the summary judgment stage, are factually dissimilar, and/or are not binding." Id. at 801–02.
Plaintiff's Notice of Supplemental Authority (DE [19]) also cites three other out-of-circuit cases: Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co. , 506 F. Supp. 3d 360 (E.D. Va. Dec. 9, 2020) ; JGB Vegas Retail Lessee LLC v. Starr Surplus Lines Insurance Co. , 2020 WL 7190023 (Nev. Dist. Ct. Dec. 1, 2020) ; and Perry Street Brewing Co. LLC v. Mutual of Enumclaw Insurance , 2020 WL 7258116 (Wash. Super. Ct. Nov. 23, 2020). The Court reviewed these cases and finds them unpersuasive because they do not construe the policies in accordance with Florida law.
But, as Defendant notes, see Reply 7 (DE [17]), courts in this circuit have already rejected the argument that physical damage is not required. See Raymond H Nahmad DDS PA , 499 F. Supp. 3d at 1187–88 ; see also Malaube, LLC v. Greenwich Ins. Co. , 2020 WL 5051581, at *7 (S.D. Fla. Aug. 26, 2020) (magistrate recommending dismissal because the language of "direct physical" modifies both "loss" and "damage," such that the business interruption must be caused by a physical problem (citation omitted)). Plaintiff also unpersuasively attempts to distinguish Mama Jo's , arguing that, unlike in Mama Jo's where the restaurant merely needed to be cleaned, Plaintiff here alleged that the restaurant "was unusable and uninhabitable, that customers and patrons have been prohibited from accessing the Restaurant, that the Restaurant has had to physically shut down for extended periods of time, and that the Restaurant's business operations were substantially impacted." Resp. in Opp'n 14 (DE [15]) (citing Compl. ¶¶ 48–52 (DE [1])). Here, Plaintiff ignores all Florida law—including binding Eleventh Circuit precedent—construing the policy language to require "direct physical loss of or damage to [the] property" for coverage to be triggered. See Mama Jo's , 823 F. App'x at 879.
The Court also notes that Plaintiff misconstrues the language of Mama Jo's . Plaintiff asserts that the Eleventh Circuit agreed with the district court that " ‘direct physical loss’ ... requires a showing that the property [was] rendered uninhabitable or unusable." Resp. in Opp'n 12–13 (DE [15]) (alteration and omission in original) (quoting Mama Jo's , 823 F. App'x at 875 ). This is simply not true. Plaintiff's quoted portion of Mama Jo's is the Eleventh Circuit's summary of the insured's argument on appeal. See 823 F. App'x at 875. "Uninhabitable or unusable" appears nowhere else in the opinion. Cf. S. Fla. ENT Assocs., Inc. v. Hartford Fire Ins. Co. , 2020 WL 6864560, at *12 (S.D. Fla. Nov. 13, 2020) (discussing the plaintiff's same exact misrepresentation to the court).
Based on the discussion above, the Court concludes that Plaintiff has failed to state a claim for breach of contract for the business income class (count II) and the extra expense class (count IV) because Plaintiff has failed to show that the suspension of operations or extra expenses were caused by direct physical loss of or damage to the property. And because no controversy exists with respect to the breaches of contract, the claims for declaratory relief for these classes (counts I and III) also fail. See, e.g. , Mena Catering , 512 F. Supp. 3d at 1322–23 ; Island Hotel Props. , 2021 WL 117898, at *4 ; Raymond H Nahmad DDS PA , 499 F. Supp. 3d at 1190–91.
Plaintiff has also failed to state a claim for breach of contract and declaratory relief for the civil authority class. Under the civil authority provision, Plaintiff must allege that a covered cause of loss caused damage "to property other than" the restaurant, which resulted in a civil authority's action "that prohibits access to" the restaurant. See (DE [13-1], at 40). Plaintiff must further allege that "[a]ccess to the area immediately surrounding the damaged property is prohibited by civil authority as a result of the damage" and that "[t]he action of civil authority is taken in response to dangerous physical conditions resulting from the damage ...." Id. (emphasis added).
Here, Plaintiff alleges that the City of Miami Beach, Miami-Dade County, and the State of Florida enacted various executive orders that reduced all restaurant capacities to 50%, prevented on-site food and beverage consumption for a period of time until only outdoor dining opened, and limited on-site occupancy to four persons per table. See Compl. ¶¶ 38–45 (DE [1]). Plaintiff therefore asserts that the civil authorities’ actions required it to "restrict or forbid access to the restaurant" at various times. Id. ¶ 46. Plaintiff further asserts, in conclusory fashion, that "[t]he Civil Authority Actions prohibiting public access to the covered premises and the surrounding area were issued in response to dangerous physical conditions and caused a suspension of business operations on the covered premises." Id. ¶ 49.
Again, Plaintiffs allegations are insufficient. First, Plaintiff fails to allege with specificity that a property within the immediately surrounding area other than the restaurant was damaged by a covered loss. See, e.g. , Mena Catering , 512 F. Supp. 3d at 1318–19 (finding no coverage under civil authority provision where plaintiff failed to allege that civil orders were issued in response to "actual damage to any specific property near the premises"). Second, as Defendant correctly points out, the executive orders actually encouraged restaurants—considered essential businesses—to continue providing take-out, delivery, and curbside services. See (DE [13-3], at 3); (DE [13-4], at 3); (DE [13-5], at 3); (DE [13-6], at 3, 5); (DE [13-8], at 5, 12, 26); (DE [13-10], at 4). Indeed, Plaintiff does not allege specific facts showing that it had no access to the restaurant as a result of the executive orders. "[A]ccess [to an insured property] is not ‘prohibited’ where customers can still purchase delivery or take-out." Rococo Steak , 515 F. Supp. 3d at 1225 (citing Raymond H Nahmad DDS PA , 499 F. Supp. 3d at 1184–85 ; El Novillo Rest. , 505 F. Supp. 3d at 1350–51 ); see also SA Palm Beach , 506 F. Supp. 3d at 1255–56 (finding no coverage under civil authority provision where plaintiff "fail[ed] to allege any physical damage to any property in the immediate area" and failed to allege "that access to its restaurant was completely prohibited by order of a civil authority"). Plaintiff responds that it alleged in paragraphs 38 to 46 of the Complaint that the various executive orders actually forced the restaurant to fully close, not simply restricted some services. Resp. in Opp'n 18–19 (DE [15]). But Plaintiff's conclusory allegations asserting that the civil authorities’ actions prohibited or forbade access to the restaurant, see Compl. ¶¶ 38, 46 (DE [1]), lack factual support and are insufficient, see Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Davila , 326 F.3d at 1185.
The Court grants Defendant's request to take judicial notice of the executive orders that are attached to Defendant's Motion to Dismiss. The orders are authentic public records that are central to Plaintiff's claims. See McClure v. Oasis Outsourcing II, Inc. , 674 F. App'x 873, 875 (11th Cir. 2016) ("In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged." (quoting SFM Holdings, Ltd. v. Banc of Am. Sec., LLC , 600 F.3d 1334, 1337 (11th Cir. 2010) )); Universal Express, Inc. v. U.S. Sec. & Exch. Comm'n , 177 F. App'x 52, 53 (11th Cir. 2006) ("Public records are among the permissible facts that a district court may consider [on a motion to dismiss]." (citations omitted)).
Thus, the Court finds that Plaintiff has also failed to state a claim for declaratory relief (count V) and breach of contract (count VI) under the civil authority provision. The Court therefore need not reach the policy's microorganism or pollution/contamination exclusions. See Raymond H Nahmad DDS PA , 499 F. Supp. 3d at 1184–85 (stating that only after the insured affirmatively shows coverage does the burden shift to the insurer to prove that an exclusion applies (citation omitted)).
IV. CONCLUSION
As one court succinctly explained, "The virus COVID-19 harms people, not property." Kevin Barry Fine Art Assocs. v. Sentinel Ins. Co., Ltd. , 513 F. Supp. 3d at 1171 (N.D. Cal. Jan. 13, 2021) (citing Uncork & Create LLC v. Cincinnati Ins. Co. , 498 F. Supp. 3d at 883–84 (S.D. W. Va. Nov. 2, 2020) ). Under Florida law, Plaintiff has failed to state a claim for declaratory relief and breach of contract under the business income, extra expense, and civil authority provisions of the policy for purely economic losses stemming from the pandemic. Because any amendment would be futile, the Court dismisses the entire Complaint with prejudice. See Rococo Steak , 515 F. Supp. 3d at 1225–26 (citing Corsello v. Lincare, Inc. , 428 F.3d 1008, 1014 (11th Cir. 2005) ). Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss the Complaint (DE [13]) is GRANTED . The Complaint (DE [1]) is DISMISSED WITH PREJUDICE . The Clerk of Court is directed to CLOSE this case and DENY AS MOOT any pending motions.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 22nd day of February 2021.