By Daphne Zhang

Law360 (June 29, 2021, 7:53 PM EDT) -- An Illinois federal judge on Tuesday permanently shot down a dental practice's amended complaint seeking civil authority coverage for its pandemic-related losses, saying government closure orders never blocked access to its property.

U.S. District Judge Philip G. Reinhard granted summary judgment to Cincinnati Insurance Co. and terminated Riverside Dental of Rockford Ltd.'s suit. The clinic failed to show it lost access to the premises because government closure orders allowed its staff to perform and its patients to receive essential services, the judge said.

The policy's civil authority provision only covers revenue losses "caused by action of civil authority that prohibits access to the premises," Judge Reinhard said. The orders "limited the types of services that could be provided at plaintiff's dental office but did not prohibit access to that office."

"The fact [that] certain services were prohibited from being performed at the premises did not prohibit access to the premises," the judge wrote.

Riverside Dental said in its own amended complaint that the government orders allowed Illinois residents to visit health services including dental offices, the judge said, so it never fully lost access to the office as it claimed.

In January, Judge Reinhard granted Cincinnati's request to toss the case, finding that Riverside could not show it lost access to its property due to state-mandated closures issued in March. But he gave the clinic until mid-February to amend its complaint.

Riverside Dental has argued that Cincinnati is obligated to cover its loss caused by government closure orders under the policy's civil authority provision, alleging the carrier breached the insurance contract when it denied coverage.

The clinic has contended that only emergency dental procedures were considered essential by the government orders, and since 90% of the clinic's work is routine or elective dental procedures, the orders effectively shut the clinic down.

On Tuesday, Judge Reinhard said Riverside Dental failed to show any precedents supporting its position that government closure orders in response to the pandemic are covered under the civil authority provision of property policies.

The judge based his decision on Sandy Point Dental PC v. The Cincinnati Insurance Company et al. in which the Illinois federal court found the dental office hadn't suffered a physical loss from government closure orders and dismissed the suit.

The clinic had argued that it shouldn't be forced to show the novel coronavirus was present on its properties after a Missouri federal judge found the COVID-19 virus causes physical loss or damage after physically attaching itself to property last summer.

But the U.S. District Judge Robert Gettleman said in January that Cincinnati's policy plainly stated "demonstrable, physical alteration to the property" is required to trigger coverage, and that the dental office failed to show that.

Representatives for the parties could not be immediately reached for comment Tuesday.

Riverside is represented by Erik Edwin Carlson of Brassfield Krueger & Ramlow Ltd.

Cincinnati is represented by Brian M. Reid of Litchfield Cavo LLP.

The case is Riverside Dental of Rockford Ltd. v. Cincinnati Insurance Co., case number 3:20-cv-50284, in the U.S. District for the Northern District of Illinois.

--Editing by Gemma Horowitz.

Update: This story has been updated to include Riverside's counsel information.

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