Westfield Area Ymca v. the North River Insurance Company ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1910-21
WESTFIELD AREA YMCA,
YMCA OF MADISON
NEW JERSEY, INC., d/b/a
MADISON AREA YMCA,
LAKELAND HILLS FAMILY
YMCA, WYCKOFF FAMILY
YMCA, INC., and WEST
MORRIS YMCA,
Plaintiffs-Appellants,
v.
THE NORTH RIVER
INSURANCE COMPANY,
UNITED STATES FIRE
INSURANCE COMPANY,
and PHILADELPHIA
INDEMNITY INSURANCE
COMPANY,
Defendants-Respondents.
____________________________
Argued November 28, 2023 – Decided February 21, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2584-20.
Carl A. Salisbury argued the cause for appellants
(Bramnick, Rodriguez, Grabas, Arnold & Mangan,
attorneys; Carl A. Salisbury, on the briefs).
Kristin V. Gallagher argued the cause for respondents
The North River Insurance Company and United States
Fire Insurance Company (Kennedys CMK LLP,
attorneys; Kristin V. Gallagher, Mark F. Hamilton, and
Tyler J. Pierson, of counsel and on the brief).
Stephen E. Goldman (Robinson & Cole LLP) of the
Connecticut bar, admitted pro hac vice, argued the
cause for respondent Philadelphia Indemnity Insurance
Company (Walsh Pizzi O'Reilly Falanga LLP, and
Stephen E. Goldman, attorneys; Liza M. Walsh and
William T. Walsh, Jr., on the brief).
PER CURIAM
In this insurance coverage action, five YMCAs, plaintiffs Westfield Area
YMCA, YMCA of Madison New Jersey, doing business as Madison Area
YMCA, Lakeland Hills Family YMCA, Wyckoff Family YMCA Inc., and West
Morris Area YMCA, appeal from two January 18, 2022, Law Division orders
granting summary judgment dismissal of their complaint against their respective
insurance companies, defendants the North River Insurance Company (North
River), United States Fire Insurance Company (US Fire), and Philadelphia
A-1910-21
2
Indemnity Insurance Company (Philadelphia), three commercial property and
casualty insurance carriers.
The complaint sought business interruption coverage under the respective
commercial property insurance policies for business income losses sustained
during the pandemic caused by the SARS-CoV-2 virus (the COVID-19
pandemic) that prompted the Governor to issue mandatory closure orders. In
dismissing the complaint, Judge Alan G. Lesnewich determined plaintiffs'
business income losses were not related to any "direct physical loss of or damage
to" the insured properties, prerequisites to coverage. The judge also ruled
coverage was barred by the virus exclusions contained in the policies and the
doctrine of regulatory estoppel did not invalidate the exclusions. We agree and
affirm substantially for the reasons articulated in the judge's statement of
reasons.
I.
We glean these facts from the motion record, viewed in the light most
favorable to plaintiffs. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573,
577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523
(1995)). Plaintiffs are non-profit community service organizations that operate
numerous facilities throughout the State to promote their mission of advancing
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youth development, healthy living, and social responsibility. To that end,
plaintiffs provide a variety of programs and services in their facilities, including
child-care, early childhood education, summer youth camps, youth and teen
sports programs, youth and teen counseling, health and wellness classes for
adults, and physical fitness training centers. Plaintiffs' facilities are insured by
the insurance policies at issue in this case (the insured properties).
Defendant North River issued a commercial package property insurance
policy to plaintiff Westfield YMCA for the policy period December 31, 2019 ,
to December 31, 2020. Defendant US Fire issued commercial package property
insurance policies to plaintiffs Madison YMCA from December 31, 2019, to
December 31, 2020, to West Morris YMCA from January 1, 2020 to January 1,
2021, and to Lakeland Hills YMCA from March 31, 2019 to March 31, 2020.
Defendant Philadelphia issued a commercial package property insurance policy
to plaintiff Wyckoff YMCA from April 1, 2019 to April 1, 2020.
All the relevant policy provisions in the various insurance policies are
identical. The Building and Personal Property Coverage Form provides that
defendants "will pay for direct physical loss of or damage to Covered Property
at the [plaintiffs'] premises . . . caused by or resulting from any Covered Cause
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of Loss," which is defined as "direct physical loss unless the loss is excluded or
limited in [the policies]."
The policies' Business Income (And Extra Expense) Coverage Form
provides that:
[Defendants] will pay for the actual loss of
Business Income [plaintiffs] sustain due to
the necessary "suspension" of [plaintiffs']
"operations" during the "period of
restoration". The "suspension" must be
caused by direct physical loss of or damage
to property at [the insured properties] 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. [1]
"Business Income" is defined as "[n]et [i]ncome ([n]et [p]rofit or [l]oss before
income taxes) that would have been earned or incurred;" and "[c]ontinuing
normal operating expenses incurred, including payroll."
The policies contain two exclusions that are germane to this appeal. First,
the "Exclusion of Loss due to Virus or Bacteria" Endorsement (the Virus
1
The policies also include "Extra Expense Coverage," which covers "necessary
expenses [plaintiffs] incur during the 'period of restoration' that [plaintiffs]
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." However, such
coverage is only provided if "Business Income Coverage applies at [the insured
properties]."
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Exclusion) provides that defendants "will not pay for loss or damage caused by
or resulting from any virus, bacterium or other micro-organism that induces or
is capable of inducing physical distress, illness or disease." The Virus Exclusion
"applies to all coverage under all forms and endorsements . . . , including but
not limited to forms or endorsements that cover . . . business income[ and] extra
expense."
Second, in the "Causes of Loss – Special Form," the policies contain an
Ordinance Or Law Exclusion, which explicitly states that defendants "will not
pay for loss or damage caused directly or indirectly" by "[t]he enforcement of
or compliance with any ordinance or law . . . [r]egulating the . . . use . . . of any
property." The Ordinance Or Law Exclusion "applies whether the loss results
from . . . [a]n ordinance or law that is enforced even if the property has not been
damaged" and "[s]uch loss or damage is excluded regardless of any other cause
or event that contributes concurrently or in any sequence to the loss."
Finally, the policies issued by North River and US Fire contained an
additional "Food Contamination and Communicable Disease Coverage
Endorsement," providing that:
This endorsement modifies
insurance provided under the following:
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BUSINESS INCOME (AND
EXTRA EXPENSE) COVERAGE FORM
....
(1) If one or more of [plaintiffs'
premises are] . . . ordered closed by the
Board of Health or any other governmental
authority as a result of the discovery or
suspicion of "food contamination" or
"communicable disease", [North River or
US Fire] will pay:
(a) The loss of Business Income
[plaintiffs] sustain due to the necessary
"suspension" of [plaintiffs] "operations" as
a result of the "food contamination" or
"communicable disease". The coverage for
Business Income will begin 24 hours after
[plaintiffs] receive notice of closing from
the Board of Health or any other
governmental authority[.]
....
2. "Communicable disease" means
any disease that is transmissible by
infection or contagion through contact with
humans or animals, or through bodily
fluids, contaminated objects, airborne
inhalation or a similar agent.
Beginning March 2020, Governor Philip D. Murphy issued a series of
executive orders in response to the COVID-19 pandemic, requiring the closure
of all non-essential for-profit and non-profit businesses in New Jersey. First,
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Executive Order 103, issued on March 9, 2020, identified COVID-19 as a
"contagious, and at times fatal, respiratory disease caused by the SARS-CoV-2
virus," acknowledged the rapid growth of the COVID-19 pandemic and the
occurrence of confirmed cases in New Jersey and nearby states, declared that "a
Public Health Emergency and State of Emergency exist[ed] in the State of New
Jersey," and implemented measures to protect the public in light of the
emergency. Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6,
2020).
Next, Executive Order 104, issued on March 16, 2020, among other
provisions, ordered the closure of "[a]ll public, private, and parochial preschool
program premises" as well as the closure of all "[g]yms[,] fitness centers and
classes" for as long as the order remains in effect. Exec. Order No. 104 (Mar.
16, 2020), 52 N.J.R. 550(a) (Apr. 6, 2020). Five days later, Executive Order
107, issued on March 21, 2020, superseded Executive Order 104's "operative
paragraphs" and closed to the public, among other establishments, "[t]he brick-
and-mortar premises of all non-essential retail businesses," like plaintiffs'.
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Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020). The
mandatory closures were subsequently lifted once the emergency abated. 2
Plaintiffs sought coverage for the business income losses incurred during
the mandatory closures, but defendants denied the claims. As a result, on August
13, 2020, plaintiffs filed a two-count complaint against defendants, commencing
this action. In the complaint, plaintiffs did not allege any direct physical loss or
damage to their facilities. Instead, plaintiffs asserted that in exchange for
"substantial annual premiums," defendants entered into "all risks" insurance
contracts with them, in which defendants promised to "protect [plaintiffs] from
losses and catastrophes, including the interruption or closure of their busine ss
operations due to the physical loss of use, loss of functionality, or loss of access
to their respective facilities." However, according to the complaint, defendants
"failed or refused to provide coverage for [plaintiffs'] business income losses
occasioned by the Executive Order [s]hutdown for various reasons, none of
which comport or comply with the law of New Jersey." In count one, plaintiffs
sought a declaratory judgment, requiring defendants to provide full coverage for
2
On June 26, 2020, Executive Order 157, which went into effect on July 2,
2020, authorized the limited reopening of "[a]ll retail establishments" subject to
mandated precautions to minimize the spread of the SARS-CoV-2 virus. Exec.
Order No. 157 (June 26, 2020), 52 N.J.R. 1455(a) (Aug. 3, 2020).
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their losses. In count two, plaintiffs sought compensatory and consequential
damages for defendants' breach of contract.
Ultimately, defendants moved for summary judgment, which was opposed
by plaintiffs. Following oral argument, Judge Lesnewich granted defendants'
motions and issued memorializing orders with identical statements of reasons
on January 18, 2022.3 In his decision, after outlining the governing legal
principles, the judge first determined that summary judgment was appropriate
because plaintiffs made no claim for "direct physical loss." The judge
explained:
The [p]olicies' Business Income coverage and Extra
Expense coverage both require, as a prerequisite to
coverage, "direct physical loss of or damage to
[insured] property" that is "caused by or result[ing]
from a Covered Cause of Loss." The term "Covered
Cause of Loss" is defined as "direct physical loss unless
the loss is excluded or limited in th[e] policy."
Significantly, [p]laintiffs have not made a claim for the
repair or replacement of any of their respective
property. That fact is not disputed. That alone is reason
for the court to grant summary judgment.
[(first and second alteration in original).]
3
One order pertained to North River's and US Fire's motions, and the other
pertained to Philadelphia's motion.
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Turning to the exclusions, the judge concluded the Virus Exclusion was
enforceable and barred plaintiffs' claim. In reaching that conclusion, the judge
rejected plaintiffs' contention that the exclusion did not apply because "the
Executive Orders, not COVID-19, were the proximate cause of [plaintiffs']
losses." In that regard, the judge looked to other courts that had decided "the
issue of causation in this context" and relied on our opinion in New Jersey
Transit Corp. v. Certain Underwriters at Lloyd's London, 461 N.J. Super. 440(App. Div. 2019), where we stated:
When there is a conflict as to whether, for
coverage purposes, losses should be considered to be
"caused by" an excluded risk or by a covered peril, the
New Jersey courts employ the efficient proximate cause
test, which is sometimes referred to as Appleman's
Rule. . . .
Under this test, if an exclusion "bars coverage for
losses caused by a particular peril, the exclusion applies
only if the excluded peril was the 'efficient proximate
cause' of the loss." "Where a peril specifically insured
against sets other causes in motion which, in an
unbroken sequence and connection between the act and
final loss, produces the result for which recovery is
sought, the insured peril is regarded as the proximate
cause of the entire loss . . . ."
[Id. at 460-61 (emphasis omitted) (citations omitted)
(first quoting Zurich Am. Ins. Co. v. Keating Bldg.
Corp., 513 F. Supp. 2d 55, 70 (D.N.J. 2007); and then
quoting Auto Lenders Acceptance Corp. v. Gentilini
Ford, Inc., 181 N.J. 245, 257 (2004)).]
A-1910-21
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Consistent with other courts, Judge Lesnewich determined the Virus
Exclusion "unambiguously bar[red] coverage of [p]laintiffs' claims" because the
"alleged losses were caused by the Coronavirus, . . . in response to which
Governor Murphy issued the [Executive] Orders." The judge explained:
Plaintiffs cannot show that the Executive Orders, and
not the COVID-19 virus, were the proximate cause of
its losses. The Executive Orders were issued for the
sole reason of reducing the spread of the virus that
causes COVID-19 and would not have been issued but
for the presence of the virus in the State of New Jersey.
Because the Stay-at-Home Orders were issued to
mitigate the spread of the highly contagious novel
coronavirus, [p]laintiffs' losses are tied inextricably to
that virus and are not covered by the policies.
The judge also rejected plaintiffs' contention that "the Virus Exclusion
[was] void under the theory of regulatory estoppel." According to the judge,
plaintiffs "grounded their regulatory estoppel argument on a statement in an
Insurance Services Office ('ISO') 4 circular" indicating that losses due to viruses
4
ISO "is an influential [nonprofit] organization within the insurance industry
that promulgates standard form insurance policies, including [commercial
general liability] policies, that insurers across the country use to conduct their
business." Mac Prop. Grp. LLC & The Cake Boutique LLC v. Selective Fire &
Cas. Ins. Co., 473 N.J. Super. 1, 32 n.7 (App. Div. 2022) (alterations in original)
(quoting Christopher C. French, Construction Defects: Are They 'Occurrences'?,
47 Gonz. L. Rev. 1, 5 n.7 (2011/2012)), certif. denied, 252 N.J. 258 and 252 N.J.
261 (2022).
A-1910-21
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were already precluded by the pollution exclusion. Plaintiffs argued that the
ISO circular "misrepresented" to regulators that the proposed virus exclusion
language in the insurance policies was merely a "clarification," when in fact the
language allegedly resulted in a "reduction in existing coverage."
The judge reasoned that "putting aside the fact that . . . regulatory estoppel
does not void a clear and unambiguous provision such as the Virus Exclusion,"
plaintiffs failed to demonstrate that insurers misrepresented to regulatory
authorities the impact and scope of the exclusion to justify a finding of
regulatory estoppel. See Morton Int'l, Inc. v. Gen. Accident Ins. Co. of Am.,
134 N.J. 1, 30 (1993) (declining to enforce an exclusion clause because "[t]o do
so would contravene this State's public policy requiring regulatory approval of
standard industry-wide policy forms to assure fairness in rates and in policy
content, and would condone the industry's misrepresentation to regulators in
New Jersey and other states concerning the effect of the clause").
In this ensuing appeal, plaintiffs raise the following points for our
consideration:
I.[5] THE TRIAL COURT ERRED IN FAILING TO
FOLLOW THIS COURT’S CONTROLLING
AUTHORITY THAT "DIRECT PHYSICAL LOSS OF
5
We have omitted the standard of review and renumbered the point headings
accordingly.
A-1910-21
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OR DAMAGE TO" PROPERTY DOES NOT
REQUIRE PHYSICAL ALTERATION OF COVERED
PROPERTY BUT, INSTEAD, IS SATISFIED BY
LOSS OF USE OF THE PROPERTY.
II. THE TRIAL COURT APPLIED THE VIRUS
EXCLUSION, AS A MATTER OF LAW, DESPITE
THE EXISTENCE OF NUMEROUS MATERIAL
ISSUES OF FACT IN DISPUTE.
A. By Misapplying Appleman's Rule, The
Trial Court Erroneously Found That The
Virus Was The "Predominant Cause" Of
[Plaintiffs'] Losses.
B. Plaintiffs Submitted On The Motions
Below Numerous Misrepresentations
About The Virus Exclusion That ISO Made
To State Insurance Regulators, Which The
Trial Court Erroneously Ruled Were Not
Discernible From The Motion Record.
II.
"[W]e review the trial court's grant of summary judgment de novo under
the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is
well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
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of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citations omitted) (quoting R. 4:46-2(c)).]
Whether a genuine issue of material fact exists depends on "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party in consideration of the applicable evidentiary
standard, are sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Brill, 142 N.J. at 523. "If
there is no genuine issue of material fact, we must then 'decide whether the trial
court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig. Support
Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). "We
review issues of law de novo and accord no deference to the trial judge's [legal]
conclusions . . . ." MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super.
307, 312 (App. Div. 2018).
"The interpretation of an insurance contract is a question of law . . . and
can be resolved on summary judgment." Adron, Inc. v. Home Ins. Co., 292 N.J.
Super. 463, 473 (App. Div. 1996). Certain general principles guide our
interpretation of an insurance contract.
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An insurance policy "will be enforced as written
when its terms are clear in order that the expectations
of the parties will be fulfilled," with undefined terms
construed in accordance with their "plain and ordinary
meaning." Flomerfelt v. Cardiello, 202 N.J. 432, 441
(2010). "If the language is clear, that is the end of the
inquiry," and courts will not "'engage in a strained
construction to support the imposition of liability' or
write a better policy for the insured than the one
purchased." Chubb Custom Ins. Co. v. Prudential Ins.
Co. of Am., 195 N.J. 231, 238 (2008) (quoting
Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 273
(2001)). We have long recognized "the basic notion
that the premium paid by the insured does not buy
coverage for all property damage but only for that type
of damage provided for in the policy." Weedo v. Stone-
E-Brick, Inc., 81 N.J. 233, 237 (1979).
Exclusionary clauses are "presumed valid if they
are 'specific, plain, clear, prominent and not contrary to
public policy.'" Norman Int'l, Inc. v. Admiral Ins. Co.,
251 N.J. 538, 552 (2022) (quoting Mem'l Props., LLC
v. Zurich Am. Ins. Co., 210 N.J. 512, 528 (2012)).
Policy exclusions "are typically construed narrowly
with the onus 'on the insurer to bring the case within the
exclusion.'" Mem'l Props., 210 N.J. at 528 (quoting
Am. Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29,
41 (1998)). Nonetheless, if the terms of an exclusion
are clear and unambiguous, we "should not engage in a
strained construction to support the imposition of
liability." Longobardi v. Chubb Ins. Co. of N.J., 121
N.J. 530, 537 (1990).
[AC Ocean Walk, LLC v. American Guar. & Liab. Ins.
Co., ___ N.J. ___ (2024) (slip op. at 18-19).]
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Because this coverage dispute involves "the devasting impact of COVID-
19 and state governments' efforts to curb the pandemic, there have been scores
of federal and state appellate-level courts that have addressed the same issues
raised in this appeal." Mac Prop. Grp., 473 N.J. Super. at 26.
The overwhelming majority of them have granted
defendant insurers' motions to dismiss complaints
seeking insurance coverage for business losses due to
government orders barring or curtailing their operations
in an effort to curb the COVID-19 pandemic because
the losses were not due to physical loss or damage to
their insured premises.
[Id. at 26-27 (collecting cases).]
Most significantly, our Supreme Court recently interpreted identical
language as the language at issue in defendants' policies and pointed out that
[s]everal federal and state courts have . . .
construed the policy language "direct physical loss" of
property or "direct physical . . . damage" to property to
denote either the property's destruction or its alteration
rendering it unusable or uninhabitable, and have
declined to extend that language beyond those
parameters.
[AC Ocean Walk, LLC, ___ N.J. at ___ (slip op. at 23).]
The Court concluded,
[w]e concur with the determinations of those
federal and state courts. Based on the plain terms of the
policies, we conclude that in order to show a "direct
physical loss" of its property or "direct physical . . .
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damage" to its property under the policy language at
issue, [the insured] was required to demonstrate that its
property was destroyed or altered in a manner that
rendered it unusable or uninhabitable.
[Id. at ___ (slip op. at 25).]
Otherwise, there is no coverage under the insurance policy. Ibid.
As a result, in AC Ocean Walk, LLC, where the insured sought coverage
under its commercial property insurance policies for "direct physical loss" of or
"direct physical . . . damage" to its property occasioned by the COVID-19
pandemic when it suspended operations of its casino and entertainment facilities
due to the Governor's executive order mandating closure, the Court held that
"Ocean Walk's COVID-19 allegations [did] not satisfy the policy language." Id.
at ___ (slip op. at 26-27).
At most, it has alleged that it sustained a loss of
business during the COVID-19 government-mandated
suspension of business operations because it was not
permitted to use its property as it would otherwise have
done. As the Third Circuit observed with respect to the
complaint dismissed in [Wilson v. USI Ins. Serv. LLC,
57 F.4th 131 (3d Cir. 2023)] -- in which the plaintiff
businesses "lost the ability to use their properties for
their intended business purposes" by virtue of
government orders -- such an allegation "is completely
divorced from the physical condition of the premises,"
given that the properties were "intact and functional"
and were "not destroyed in whole or in part." 57 F.4th
at 142-43. The Appellate Division rebuffed a similar
argument in Mac Property, noting that the insured
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businesses "would have been able to continue
functioning as a dine-in restaurant, bakery, childcare
and learning center, or gym without interruption had
Governor Murphy not issued his [executive orders],"
given that none of the facilities needed repairs due to
damage or required relocation. 473 N.J. Super. at 23.
Here, absent the executive orders, Ocean Walk would
have been able to use its property for casino and other
entertainment functions with no suspension of its
operations.
[AC Ocean Walk, LLC, ___ N.J. at ___ (slip op. at 26-
27) (second alteration in original) (footnote omitted).]
The Court also determined that "the deficiency in [Ocean Walk's] allegations
[could not] be remedied by discovery," id. at ___ (slip op. at 29),6 and the Court's
holding "comport[ed] with the vast majority of decisions by federal and state
appellate courts that have addressed that issue," id. at ___ (slip op. at 27).
Likewise, here, because plaintiffs have not alleged any direct physical loss
or damage to their facilities due to COVID-19 related government closures, as
those terms have been defined in AC Ocean Walk, LLC, plaintiffs are not
entitled to coverage for their business losses under any of the policies regardless
of whether the virus exclusion applied. We therefore affirm Judge Lesnewich's
decision granting defendants' summary judgment. Given our conclusion, we
6
Unlike this case, procedurally, AC Ocean Walk, LLC was adjudicated on a
motion to dismiss for failure to state a claim pursuant to Rule 4:6-2(e), before
discovery was even conducted. Id. at ___ (slip op. at 10).
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need not address plaintiffs' remaining arguments, which we previously rejected
in Mac Property Group LLC, 473 N.J. Super. at 33, 40 (rejecting regulatory
estoppel as a bar to the enforcement of the virus exclusion, and holding that the
COVID-19 virus, rather than the executive orders, was "the efficient proximate
cause of plaintiffs' losses," thus precluding coverage under the virus exclusion).
As we stated in Mac Property Group LLC,
We recognize that COVID-19 has caused
overwhelming economic losses to untold businesses
and individuals dependent on those businesses in our
state, nation, and the world. Nevertheless, in the
context of the issues presented in this appeal, plaintiffs'
insurance claims are restricted by the clear and plain
meaning of their insurance policies, which we cannot
rewrite to cover their unfortunate losses.
[Id. at 41.]
Affirmed.
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