Robert Levy v. Hartford Casualty Insurance Co ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1446
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Robert Levy, D.M.D., LLC, on behalf of himself and all others similarly situated;
Vanessa N. Keller, D.M.D.; Trisha M. Young, D.M.D., P.C.; Rivka Goldenhersh,
D.M.D., LLC; Farhad Moshiri, D.M.D., M.S., P.C., doing business as Moshiri
Orthodontics; Mazyar Moshiri, D.M.D., M.S., P.C., doing business as Moshiri
Orthodontics
Plaintiffs - Appellants
v.
Hartford Casualty Insurance Company; Sentinel Insurance Company, LTD;
Hartford Financial Services Group, Inc.; Twin City Fire Insurance Company
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 12, 2022
Filed: July 7, 2022
[Unpublished]
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Plaintiffs are Missouri dental and orthodontic practices. Following
recommendations from the CDC, American Dental Association, and Missouri
Dental Board, they limited their practice to emergency procedures during the first
months of the COVID pandemic. Plaintiffs were insured under all-risk property
policies issued by Hartford Casualty Insurance Co., which covered “direct physical
loss of or physical damage to property.” The policies included additional coverage
for lost business income and extra expenses incurred as the result of direct physical
loss of or damage to property. Notably, Plaintiffs did not allege that the virus was
present on their premises. After Hartford denied their claims for lost business
income and extra expense coverage, the practices brought a putative class action
alleging breach of contract. The district court1 granted Hartford’s motion for
judgment on the pleadings. Plaintiffs appealed.
This is one of a series of cases asking us to address whether COVID-related
shutdowns are a “direct physical loss” of property. As we have stated on several
occasions, “there must be some physicality to the loss or damage of property—e.g.,
a physical alteration, physical contamination, or physical destruction.” Planet Sub
Holdings, Inc. v. State Auto Prop. & Cas. Ins. Co., Inc., No. 21-2199, 2022 WL
1951615, at *2 (8th Cir. June 6, 2022) (quoting Oral Surgeons P.C. v. Cincinnati Ins.
Co., 2 F.4th 1141, 1144 (8th Cir. 2021)) (cleaned up) (applying Missouri law, which
also governs the policies in this case). Plaintiffs limited their services as a
precautionary measure, not because the virus was present on their premises. Since
they have not alleged physicality, they were not entitled to coverage under the
policy.2 We affirm.
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1
The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri.
2
Because coverage is not triggered, we do not address Hartford’s argument
that the policy’s virus exclusion applies.
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