By Daphne Zhang

Law360 (September 21, 2020, 5:35 PM EDT) -- Cincinnati Insurance Co. won't need to cover a dental office's loss from COVID-19 closures after an Illinois federal judge sided with the insurer's position that the clinic failed to show any direct physical loss during the pandemic.

U.S. District Judge Robert W. Gettleman said that the dental office has not demonstrated any "physical alteration or structural degradation" of its property. And it was not able to show the presence of the novel coronavirus on its property's surface, or a direct physical loss from its inability to access the clinic, the judge said.

"The coronavirus does not physically alter the appearance, shape, color, structure, or other material dimension of the property," the judge said. "Nothing about the property has been altered since March 2020."

Sandy Point Dental PC, which was forced to pause most of its business in March, sued Cincinnati in April over its refusal to pay out on its policy. The dental clinic said last month that it should not be forced to show the novel coronavirus was present on its properties because the civil authority's shutdown orders prevented virus infiltration.

On Monday, Judge Gettleman said that Cincinnati's policy language "unambiguously" stated that "demonstrable, physical alteration to the property" is required to trigger coverage, but the dental office failed to show that. The clinic never needed to carry out repairs and change any part of the building to keep the business operational, the judge said.

"The words 'direct' and 'physical,' which modify the word 'loss,' ordinarily connote actual, demonstrable harm of some form to the premises itself, rather than forced closure of the premises for reasons extraneous to the premises themselves, or adverse business consequences that flow from such closure," Judge Gettleman said in the order.

The policy's civil authority coverage does not apply either because Sandy point was not able to show that access to its office was ever forbidden by government orders, the judge said, adding while the orders may have limited its business operations, "no order issued in Illinois prohibits access to plaintiff's premises."

Betsy Ertel, a spokesperson for Cincinnati, told Law360 in an email statement that Cincinnati appreciates the court's hearing the case and agrees with its decision that the coronavirus does not constitute a direct physical loss.

"We recognize the challenges facing many small businesses," she said. "We join with businesses from across the country in encouraging the Federal government to produce the right solution to support our nation's economic recovery."

Charles A. Silverman, an attorney representing Sandy Point, told Law360 on Monday that he "really wished" the judge would rule in the dental clinic's favor. 

Sandy Point previously argued that while many other policies contain a virus disclaimer, its policy with Cincinnati does not have such exclusions, so the policy should cover COVID-19. The office contended that only emergency dental procedures were considered essential by the government orders, and 95% of the clinic's work is routine or elective dental procedures, so the orders effectively shut the clinic down.

Sandy Point Dental is represented by Charles A. Silverman of Charles Aaron Silverman PC.

Cincinnati is represented by Brian M. Reid and Michael P. Baniak of Litchfield Cavo LLP.

The case is Sandy Point Dental PC v. The Cincinnati Insurance Co. et al., case number 1:20-cv-02160, in the U.S. District Court for the Northern District of Illinois.

--Editing by Alyssa Miller.

The story has been updated with comments from Cincinnati. 

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