In the weeks following the decision in Dakota Ventures, Chief Judge Hernandez dismissed with prejudice four other cases with similar claims and the same policy language. See NUE, LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01449-HZ, 2021 WL 4071862, at *13 (D. Or. Sept. 4, 2021), appeal filed No. 21-35813 (9th Cir. Sept. 28, 2021); Nari Suda LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01476-HZ, 2021 WL 4067684, at *8 (D. Or. Sept. 6, 2021), appeal filed No. 21-35846 (9th Cir. Oct. 7, 2021); HILLBRO LLC v. Oregon Mut. Ins. Co., No. 3:21-CV-00382-HZ, 2021 WL 4071864, at *10 (D. Or. Sept. 7, 2021), appeal filed No. 21-35810 (9th Cir. Sept. 28, 2021); N. Pac. Mgmt., Inc. v. Liberty Mut. Fire Ins. Co., No. 3:21-CV-00404-HZ, 2021 WL 4073278, at *4 (D. Or. Sept. 7, 2021), appeal filed No. 21-35842 (9th Cir. Oct. 6, 2021). Since then, Judge Michael Mosman and Judge Stacie Beckerman adopted this reasoning and reached the same result in their cases.
As this Court stated in Team 44 Restaurants, while acknowledging the Oklahoma District Court's frustration “that such a highly litigated phrase remains completely undefined in many insurance policies [, ] . . . it seems likely that this phrase remains undefined simply because so many courts find that the plain and ordinary meaning of direct physical loss is actual physical damage, not the loss of access or use.” 2021 WL 4775106 at *4 (emphasis added); see HILLBRO LLC v. Oregon Mut. Ins. Co., 2021 WL 4071864, at *11 (D. Or. Sept. 7, 2021) (“The plain meaning of the policy language and the multitude of cases interpreting identical and similar language make clear that ‘direct physical loss of or damage to property' does not include a loss of use or loss of functionality of undamaged property for its intended purpose.”), appeal filed, (9th Cir. Sept. 28, 2021); see also Dino Drop, 544 F.Supp.3d at 797 (“Were ‘physical loss' to encompass loss of use or functionality . . . the term ‘physical' would be rendered meaningless.”); Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 487 F.Supp.3d 834, 841 (N.D. Cal. 2020) (“some outside physical force must have induced a detrimental change in the property's capabilities before a plaintiff alleging loss of use can establish a ‘direct physical loss of property'”), aff'd, 15 F.4th 885 (9th Cir. 2021); Aggie Invs., L.L.C. v. Cont'l Cas. Co., 2022 WL 257439, at *2 (5th Cir. Jan. 26,
See NUE, LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01449-HZ, 2021 WL 4071862, at *13 (D. Or. Sept. 4, 2021), appeal filed No. 21-35813 (9th Cir. Sept. 28, 2021); Nari Suda LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01476-HZ, 2021 WL 4067684, at *8 (D. Or. Sept. 6, 2021), appealfiled No. 21-35846 (9th Cir. Oct. 7, 2021); HILLBRO LLC v. Oregon Mut. Ins. Co., No. 3:21-CV-00382-HZ, 2021 WL 4071864, at *10 (D. Or. Sept. 7, 2021), appeal filed No. 21-35810 (9th Cir. Sept. 28, 2021); N. Pac. Mgmt., Inc. v. Liberty Mut. Fire Ins. Co., No. 3:21-CV-00404, 2021 WL 4073278, at *4 (D. Or. Sept. 7, 2021), appeal filed No. 21-35842 (9th Cir. Oct. 6, 2021). Since then, Judge Michael Mosman, Judge Stacie Beckerman, and the undersigned adopted this reasoning and reached the same result in other cases.
See NUE, LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01449-HZ, 2021 WL 4071862, at *13 (D. Or. Sept. 4, 2021), appeal filed No. 21-35813 (9th Cir. Sept. 28, 2021); Nari Suda LLC v. Oregon Mut. Ins. Co., No. 3:20-CV-01476-HZ, 2021 WL 4067684, at *8 (D. Or. Sept. 6, 2021), appeal filed No. 21-35846 (9th Cir. Oct. 7, 2021); HILLBRO LLC v. Oregon Mut. Ins. Co., No. 3:21-CV-00382-HZ, 2021 WL 4071864, at *10 (D. Or. Sept. 7, 2021), appeal filed No. 21-35810 (9th Cir. Sept. 28, 2021); N. Pac. Mgmt., Inc. v. Liberty Mut. Fire Ins. Co., No. 3:21-CV-00404, 2021 WL 4073278, at *4 (D. Or. Sept. 7, 2021), appeal filed No. 21-35842 (9th Cir. Oct. 6, 2021). Since then, Judge Michael Mosman and Judge Stacie Beckerman adopted this reasoning and reached the same result in their cases. See RV Agate Beach, LLC v. Hartford Fire Ins. Co., No. 3:21-CV-00460-MO, 2021 WL 4851304 at *2 (D. Or. Oct. 16, 2021) (J. Mosman); The Oregon Clinic, PC v. Fireman's Fund Insurance Company, 3:21-CV-00778-SB, 2021 WL 5921370, at *8-10 (D. Or. Dec. 15, 2021) (J. Beckerman).
Even “[c]onstruing the allegations in the light most favorable to [the insureds], the losses alleged by [the insureds] are purely economic and not the result of any ‘direct physical loss of or damage to property.'” Dakota Ventures, 2021 WL 3572657 at 6; accord Nue v. Or. Mut. Ins. Co., 2021 WL 4071862, 8-9 (D. Or. 2021); Nari Suda v. Or. Mut. Ins. Co., 2021 WL 4067684, 7-8 (D. Or. 2021); HILLBRO v. Or. Mut. Ins. Co., 2021 WL 4071864, 9-10 (D. Or. 2021); N. Pac. Mgmt. v. Liberty Mut. Fire Ins. Co., 2021 WL 4073278, 6-7 (D. Or. 2021); RV Agate Beach v. Hartford Fire Ins. Co., 2021 WL 4851304, 2 (D. Or. 2021). “[T]he plain meaning of the phrase “direct physical loss of or damage to property” is direct (without intervening space or time) physical (of or relating to natural or material things) loss of (the act or fact of losing) or damage (injury or harm) to property.”
Dakota Ventures, LLC v. Or. Mut. Ins. Co., No. 3:20-cv-00630-HZ, 2021 WL 3572657 (D. Or. Aug. 11, 2021); Nue, LLC v. Or. Mut. Ins. Co., No. 3:20-cv-01449-HZ, 2021 WL 4071862 (D. Or. Sept. 4, 2021); Nari Suda LLC v. Or. Mut. Ins. Co., No. 3:20-cv-01476-HZ, 2021 WL 4067684 (D. Or. Sept. 6, 2021); Hillbro LLC v. Or. Mut. Ins. Co., No. 3:21-cv-00382-HZ, 2021 WL 4071864 (D. Or. Sept. 7, 2021); N. Pac. Mgmt, Inc. v. Liberty Mut. Fire Ins. Co., No. 3:21-cv-00404-HZ, 2021 WL 4073278, (D. Or. Sept. 7, 2021). On October 1, 2021 the Ninth Circuit filed an opinion affirming a district court's dismissal of appellant's claims against its insurer because the appellant failed to allege "physical loss of or damage to" its property because there was no physical alteration of its property.