Sweet Berry Café, Inc. v. Society Insurance, Inc.

2022 IL App (2d) 210088

• Court: Appellate Court of Illinois
• Decided: March 15, 2022
• Docket: 2-21-0088
• Status: Published

Opinion

2022 IL App (2d) 210088 No. 2-21-0088 Opinion filed March 15, 2022 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

SWEET BERRY CAFÉ, INC., ) Appeal from the Circuit Court ) of Kane County. Plaintiff and Counterdefendant- ) Appellant, ) ) v. ) No. 20-CH-266 ) SOCIETY INSURANCE, INC., ) ) Honorable Defendant and Counterplaintiff- ) Kevin T. Busch, Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice Brennan concurred in the judgment and opinion. Justice McLaren specially concurred, with opinion.

OPINION

¶1 In this insurance coverage case, plaintiff, Sweet Berry Café, Inc. (Café), sought a

declaration that its commercial property insurance policy with defendant, Society Insurance, Inc.

(Society), covered business income losses it suffered due to the COVID-19 pandemic and the

Governor’s executive orders, which restricted in-person dining, but not carryout or delivery

services, at restaurants and similar establishments. The trial court entered judgment on the

pleadings (735 ILCS 5/615(e) (West 2020)) in Society’s favor. Café appeals, arguing that (1) the

policy’s coverage under the “Business Income” and “Extra Expense” provisions for “direct

physical loss of or damage to Covered Property” includes losses due to the pandemic and the orders 2022 IL App (2d) 210088

and (2) the “Ordinance or Law” exclusion does not preclude coverage, because it applies in limited

situations and, in any event, proclamations or executive orders are neither laws nor ordinances.

We hold that neither the presence of the virus at Café’s premises nor the pandemic-triggered

executive orders that barred in-person dining at restaurants constitute “direct physical loss of or

damage to” Café’s property. Given that we conclude that there was no coverage, we need not reach

Café’s argument concerning the ordinance or law exclusion. Affirmed.

¶2 I. BACKGROUND

¶3 A. Complaint Allegations

¶4 On May 27, 2020, Café, located in South Elgin, filed a declaratory-judgment complaint

(735 ILCS 5/2-701 (West 2020)), seeking coverage, under a “Businessowners Policy” it purchased

from Society, for losses resulting from restricted operations during the pandemic. In a September

18, 2020, first amended complaint, Café sought coverage under the policy’s “Business Income”

“Extra Expense”, and “Civil Authority” provisions. Café alleged that it sustained “direct physical

loss of or damage to” property at its premises resulting from the SARS-CoV-2 virus and/or the

pandemic and that the virus and the pandemic are “Covered Causes of Loss” under the policy.

Further, it alleged that it incurred covered losses resulting from the Governor’s orders.

¶5 The complaint noted that, after the World Health Organization characterized the COVID-

19 outbreak as a pandemic, the Governor, Jay Robert Pritzker, issued Executive Order 2020-7 on

March 16, 2020, whose goal was to slow the spread of the virus by minimizing in-person

interaction in an environment with “frequently used services in public settings, including bars and

restaurants,” stating that the reduction of on-premises consumption of food and beverages was

warranted. Exec. Order No. 2020-7, 44 Ill. Reg. 5536 (Mar. 16, 2020),

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number-

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7.2020.html [https://perma.cc/A4AF-T8TT]. 1 On March 20, 2020, the Governor issued a closure

order (Executive Order 2020-10, the stay-at-home order), requiring Illinois residents to stay at

home, except for essential travel for essential work, supplies, and outdoor activities through April

7, 2020. Exec. Order No. 2020-10, 44 Ill. Reg. 5857 (Mar. 20, 2020),

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number-

10.2020.html [https://perma.cc/AL3B-TXGW]. The order also reduced the allowable public and

private gathering size to no more than 10 people. 2 Id. The stay-at-home order was subsequently

extended to May 29, 2020. Exec. Order No. 2020-33, 44 Ill. Reg. 8425 (Apr. 30, 2020),

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number-

33.2020.html [https://perma.cc/D337-TNHC]. The requirements of the March 20, 2020, order,

including the classification as essential businesses of restaurants and establishments engaged in

the retail sale of alcohol, were renewed. Exec. Order No. 2020-32, 44 Ill. Reg. 8409 (Apr. 30,

2020), https://www.illinois.gov/government/executive-orders/executive-order.executive-order-

number-32.2020.html [https://perma.cc/5PW8-5DLT].

1 The order restricted in-person consumption of food or beverages but permitted off-

premises consumption through delivery and curbside pickup and allowed customers to enter

premises to purchase food or beverages for carryout. Exec. Order No. 2020-7, 44 Ill. Reg. 5536

(Mar. 16, 2020). 2 The order defined as essential businesses restaurants that prepared and served food for

consumption off-premises and through delivery and carryout. It also designated as essential

businesses establishments that sold alcoholic and nonalcoholic beverages. Exec. Order No. 2020-

10, 44 Ill. Reg. 5857 (Mar. 20, 2020).

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¶6 Café asserted that it sustained losses due to the orders addressing the virus and the

pandemic. It was required to cease and/or significantly reduce operations at its locations. The

orders, it alleged, prohibited access to its premises and continued orders required Café to cease

and/or significantly reduce operations at, and prohibited access to, its premises. Café also alleged

that it sustained losses due to the virus’s physical presence “at, in, on, and/or around” its premises

and due to its presence and spread in the community. It also asserted that the virus can be

transmitted by way of human contact with surfaces, human-to-human contact at the premises, and

human contact with airborne particles emitted into the air at the premises. The virus, Café argued,

rendered items of physical property unsafe and impaired its value and function and physically

altered the air.

¶7 B. Society’s Policy

¶8 Society’s policy (No. BP18040353-5, for the policy period from December 31, 2019,

through December 31, 2020) includes forms published by Insurance Services Office, Inc. (ISO),

and used in the insurance industry. The policy does not include the ISO standard virus exclusion

form or otherwise reference the word “virus,” other than in reference to a computer virus, and it

contains no reference to “pandemic.”

¶9 In the “Business Owners Special Property Coverage Form,” the policy states:

“A. Coverage

We will pay for direct physical loss of or damage to Covered Property at

the premises described in the Declarations caused by or resulting from any Covered

Cause of loss.

***

3. Covered Causes of Loss

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Direct Physical Loss[3] unless the loss is excluded or limited

under this coverage form.” (Emphases added.)

¶ 10 The policy also contains certain “Additional Coverages,” which are the focus of this appeal,

including for “Business income”:

“5. Additional Coverages

g. Business Income

(1) Business Income

(a) We will pay for the actual loss of Business Income you

sustain due to the necessary suspension of your ‘operations’ during

the ‘period of restoration[.’] The suspension must be caused by

direct physical loss of or damage to covered property at the

described premises. The loss or damage must be caused by or result

from a Covered Cause of Loss

* * *(b) We will only pay for loss of Business Income that

you sustain during the ‘period of restoration’ and that occurs within

12 consecutive months after the date of direct physical loss or

damage.” (Emphasis added.)

¶ 11 Another additional coverage is for “Extra Expense”:

“h. Extra Expense

3 Although the term is capitalized, it is not defined in the policy.

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(1) We will pay necessary Extra Expense you incur during the ‘period of

restoration’ that you would not have incurred if there had been no direct physical loss or

damage to covered property at the described premises. The loss or damage must be caused

by or result from a Covered Cause of Loss.” (Emphasis added.)

¶ 12 The “Exclusions” section of the property coverage form contains the “Ordinance or Law”

exclusion:

“B. Exclusions

1. We will not pay for loss or damage caused directly or indirectly by any of the

following. Such loss or damage is excluded regardless of any other cause or event that

contributes concurrently or in any sequence to the loss. These exclusions apply whether or

not the loss event results in widespread damage or affects a substantial area.

a. Ordinance or Law

The enforcement of or compliance with any ordinance or law:

(1) Regulating the construction, use or repair of any

property; or

(2) Requiring the tearing down of any property, including

the cost of removing its debris.

This exclusion, Ordinance Or Law, applies whether the loss results

from:

(1) An ordinance or law that is enforced even if the property

has not been damaged; or

(2) The increased costs incurred to comply with an

ordinance or law in the course of construction, repair, renovation,

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remodeling or demolition of property or removal of its debris,

following a physical loss to that property.” (Emphases added.)

¶ 13 Finally, the “Property definitions” section states:

“H. Property Definitions

12. ‘Period of restoration’ means the period of time that:

a. Begins immediately after the time of direct physical loss or damage for

Business Income or Extra Expense coverage caused by or resulting from any

covered Cause of Loss at the described premises; and

b. Ends on the earlier of:

(1) The date when the property at the described premises should be

repaired, rebuilt or replaced with reasonable speed and similar quality; or

(2) The date when business is resumed at a new permanent location.

‘Period of restoration’ includes any increased period required to repair or

reconstruct the property to comply with the minimum standard of, or

compliance with any ordinance or law, in force at the time of loss, that

regulates the construction or repair, or requires the tearing down of property.

The expiration date of this policy will not cut short the ‘period of

restoration[.’] ” (Emphasis added.)

¶ 14 C. Society’s Countercomplaint

¶ 15 Society filed a countercomplaint for declaratory judgment, seeking a declaration that

Café’s alleged loss of business income was not caused by a covered cause of loss; Café had not

sustained a “direct physical loss of or damage to Covered Property”; the policy did not cover the

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losses Café claimed under the business income, extra expense, or civil authority additional

coverages; and the ordinance or law, “Consequential Loss,” and “Acts or Decisions” exclusions

excluded Café’s claim.

¶ 16 D. Society’s Motion for Judgment on the Pleadings

¶ 17 On October 23, 2020, Society also moved for judgment on the pleadings (735 ILCS

5/615(e) (West 2020)), arguing that there was no coverage as a matter of law for Café’s alleged

losses related to the pandemic and the executive orders issued in response, because the claims did

not satisfy the terms and conditions of the policy. 4

¶ 18 Specifically, as to the business income or extra expense additional coverages, Society

argued that there was no coverage because (1) “physical” loss is one that causes a change in the

physical characteristics of the covered property, not an intangible loss such as diminution in value;

(2) the partial temporary limitation of Café’s operations imposed by the executive orders was not

a “physical loss” or “damage” as a matter of law and was similar to a change in zoning that alters

the hours a business can be open or a reduction of building capacity, not a physical alteration in

the property; (3) the actual or suspected presence of the virus on the property did not cause a “direct

physical loss” or “damage” and was not a covered cause of loss because it did not physically alter

the property or render the premises unsafe, the virus could be removed with cleaning agents, and

Café’s losses were, at most, economic, not a “direct physical loss” or “damage”; and (4) the period-

4 Society noted that Café was completely closed between March 16 and May 29, 2020 (the

period that Executive Orders 2020-07 and 2020-10 were in effect), even though it was allowed to

fulfill carryout and delivery orders during that period. It also asserted that, beginning on June 5,

2020, Café sold food for delivery and carryout.

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of-restoration clause was further evidence that “physical loss” or “damage” required a tangible

change in the physical characteristics of the property, where it refers to a “loss” or “damage” that

causes a “physical” alteration of the property requiring the property to be repaired, rebuilt, or

replaced.

¶ 19 Society also argued that the ordinance or law exclusion prevented coverage for Café’s

claim. It argued that, even if Café could establish coverage, its claim was barred by this exclusion,

which excluded losses caused by ordinances or laws that regulate the use of any property.

¶ 20 Society sought judgment in its favor and against Café as to Society’s counterclaim and

Café’s complaint.

¶ 21 E. Trial Court’s Ruling

¶ 22 On February 4, 2021, the trial court granted judgment on the pleadings in Society’s favor

and against Café, finding no coverage. The court noted that the policy provided coverage arising

from a “direct physical loss of” property and “damage” to property. Regarding “direct physical

loss,” the court noted that the dictionary definition of “loss” was “the act of losing possession” and

deprivation. Deprivation, in turn, means the “state of being kept from possessing, enjoying, or

using something.” The court determined that the loss of the use of property is a covered loss and,

had Society intended a different meaning, it could have defined the terms. The court found the

term “direct physical loss” to be unambiguous.

¶ 23 Further, the court noted that it would reach the same conclusion considering the type of

policy, the nature of the risks involved, and the overall purpose of the contract. It characterized the

policy as an all-risk policy that covered “direct physical loss,” unless it was specifically excluded.

It noted that the parties could have, but did not, agree to exclude losses caused by viruses. The

court found “conceivable” that a viral pathogen could render the property unusable for a time.

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Construing the policy strictly against Society and broadly for coverage, the court found that the

policy covered “lost income resulting from the temporary loss or limited use of covered property

when the direct loss of use is caused by viral contamination.”

¶ 24 Next, the court addressed Café’s two asserted reasons for its lost income: the virus’s

omnipresence, which renders the building unsafe for normal use at full capacity, and the executive

orders that severely restricted how restaurants may operate, primarily limiting them to preparing

food on site for delivery and carryout. First, as to the virus, the court noted that Café had been

operating during the pandemic, consistent with the Governor’s restrictions. Its allegations relating

to any actual physical damage, the court found, were “speculative and hyperbole.” It took judicial

notice of the fact that the virus had not rendered other businesses unsafe or unusable and that the

virus is easily destroyed with cleaning agents and ultraviolet light. Thus, Café had failed, it found,

to allege a covered loss.

¶ 25 Second, as to the executive orders, the court determined that they were the reason that Café

had reduced or restricted its operations. However, this did not trigger coverage. Such losses were

excluded, it determined, because they resulted from “enforcement or compliance with any

ordinance or law.” The court found that Café was prevented from fully using its premises, because

it chose to comply with the restrictions, not because of viral contamination.

¶ 26 Café appeals. The Restaurant Law Center and the Illinois Restaurant Association filed a

brief as amici curiae in support of Café’s position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). The

American Property Casualty Insurance Association and the National Association of Mutual

Insurance Companies filed a brief as amici curiae in support of Society’s position. Id.

¶ 27 II. ANALYSIS

¶ 28 A. Preliminary Matter

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¶ 29 Initially, we address Society’s argument that Café’s nature-of-the-case statement violates

Illinois Supreme Court Rule 341(h)(2) (eff. Oct. 1, 2020) because it is impermissibly

argumentative and fails to provide required information. Society asks that we strike the statement

and offers one in its place.

¶ 30 Rule 341(h)(2) requires an introductory paragraph, stating (1) the nature of the action and

of the judgment appealed from and whether the judgment is based upon the verdict of a jury and

(2) whether any question is raised on the pleadings and, if so, the nature of the question. Id. We

agree that Café’s statement is argumentative. See Artisan Design Build, Inc. v. Bilstrom, 397 Ill.

App. 3d 317, 321 (2009) (introductory statement containing argument violates Rule 341(h)(2)).

The Illinois Supreme Court rules are not suggestions; they have the force of law and must be

followed. People v. Campbell, 224 Ill. 2d 80, 87 (2006); Kerger v. Board of Trustees of Community

College District No. 502, 295 Ill. App. 3d 272, 275 (1997). However, “ ‘[w]here violations of

supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in

whole or in part may be unwarranted.’ ” Hubert v. Consolidated Medical Laboratories, 306 Ill.

App. 3d 1118, 1120 (1999) (quoting Merrifield v. Illinois State Police Merit Board, 294 Ill. App.

3d 520, 527 (1997)). Here, Café’s violations do not hinder our review to the point that striking the

brief in whole or in part would be appropriate, but we will disregard the noncompliant portions of

Café’s statement. We also admonish counsel to carefully follow the supreme court rules in future

submissions.

¶ 31 B. Standard of Review and Contract Interpretation Principles

¶ 32 The trial court granted judgment on the pleadings in Society’s favor and against Café.

Section 2-615(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2016))

provides that “[a]ny party may seasonably move for judgment on the pleadings.” A motion for

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judgment on the pleadings is like a motion for summary judgment but is limited to the pleadings.

Perry v. Fidelity National Title Insurance Co., 2015 IL App (2d) 150168, ¶ 9. Thus, a judgment

on the pleadings is proper only when the pleadings disclose no genuine issue of material fact and

that the movant is entitled to judgment as a matter of law. Gillen v. State Farm Mutual Automobile

Insurance Co., 215 Ill. 2d 381, 385 (2005). In ruling on a motion for judgment on the pleadings,

the court considers only those facts apparent from the face of the pleadings, matters subject to

judicial notice, and judicial admissions in the record. Id. A party moving for judgment on the

pleadings concedes the truth of the well-pleaded facts in the nonmovant’s pleadings. Allstate

Property & Casualty Insurance Co. v. Trujillo, 2014 IL App (1st) 123419, ¶ 16. The court deciding

the motion must take all reasonable inferences from those facts as true, disregard all conclusory

allegations and surplusage, and construe the evidence strictly against the movant. Parkway Bank

& Trust Co. v. Meseljevic, 406 Ill. App. 3d 435, 442 (2010). We review de novo a trial court’s

ruling on a motion for judgment on the pleadings. State Bank of Cherry v. CGB Enterprises, Inc.,

2013 IL 113836, ¶ 65.

¶ 33 Under Illinois law, the general rules governing the interpretation of contracts govern the

interpretation of insurance policies. Bituminous Casualty Corp. v. Iles, 2013 IL App (5th) 120485,

¶ 20. A court’s primary objective in construing the language of a policy is to ascertain and give

effect to the intentions of the parties as expressed in their agreement. Pekin Insurance Co. v.

Precision Dose, Inc., 2012 IL App (2d) 110195, ¶ 31. If the policy terms are clear and

unambiguous, they must be given their plain and ordinary meanings. American States Insurance

Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). The “usual and ordinary” meaning of a phrase is “ ‘that

meaning which the particular language conveys to the popular mind, to most people, to the average

[person], *** to a business [person], or to a lay [person].’ ” Outboard Marine Corp. v. Liberty

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Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992) (quoting 2 Couch on Insurance 2d § 15:18 (rev.

ed. 1984)).

¶ 34 When interpreting an insurance policy, the agreement is to be enforced as written so long

as it is unambiguous and only to the extent that it does not contravene public policy. Gibbs v.

Madison Mutual Insurance Co., 242 Ill. App. 3d 147, 152 (1993). In determining whether there is

an ambiguity, a court must construe the policy as a whole, instead of looking at isolated parts of

the policy, and consider the type of insurance purchased, the nature of the risks involved, and the

overall purpose of the contract. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010) (citing

Koloms, 177 Ill. 2d at 479); see also Gibbs, 242 Ill. App. 3d at 152 (in determining an ambiguity,

the provision must be read in its factual context and not in isolation). An ambiguity exists when

the language is obscure in meaning through indefiniteness of expression or where the language is

reasonably susceptible to more than one meaning. Central Illinois Light Co. v. Home Insurance

Co., 213 Ill. 2d 141, 153 (2004). A contract is not rendered ambiguous merely because the parties

disagree on its meaning. Id. Additionally, we will not strain to find an ambiguity where none exists,

nor will we consider an interpretation that is unreasonable or leads to absurd results. United States

Fire Insurance Co. v. Hartford Insurance Co., 312 Ill. App. 3d 153, 155 (2000). “A policy term is

not ambiguous because the term is not defined within the policy or because the parties can suggest

creative possibilities for its meaning.” Lapham-Hickey Steel Corp. v. Protection Mutual Insurance

Co., 166 Ill. 2d 520, 529-30 (1995).

¶ 35 If the language is reasonably susceptible to more than one meaning, it is considered

ambiguous and will be construed strictly against the insurer, who drafted the policy. Koloms, 177

Ill. 2d at 479. Provisions that limit or exclude coverage are interpreted even more liberally in favor

of the insured. Id. The test is not what the insurer intended its words to mean, but what a reasonable

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person in the insured’s position would understand them to mean. Insurance Co. of Illinois v.

Markogiannakis, 188 Ill. App. 3d 643, 655 (1989). If an insurer relies on an exclusionary

provision, it must be clear and free from doubt that the provision prevents coverage. Cincinnati

Insurance Co. v. American Hardware Manufacturers Ass’n, 387 Ill. App. 3d 85, 108 (2008). We

review de novo issues of contract interpretation, including whether a contract is ambiguous. See

Central Illinois Light, 213 Ill. 2d at 153.

¶ 36 C. Business Income and Extra Expense Coverages

¶ 37 Café first argues that the trial court erred in finding that its loss was not covered because

the virus had not rendered other businesses unusable, was easily destroyed, and did not prevent all

use of the property. Café contends that the virus was the root cause of its restricted use of its

premises and, thus, its loss of income, and that Society’s policy covered that loss. It contends that

the trial court erred in taking judicial notice that the virus had not rendered other businesses

unusable and that the virus is easily destroyed. Café maintains that the court was required to accept

as true its allegations that the virus can remain suspended in the air for hours and remains active

on surfaces for up to 72 hours. Also, Café asserts, it is capable of being transmitted in that fashion

and, consequently, rendered the property unsafe. For those reasons, Café contends, it lost the full

use of the premises. Café argues that the court erred in going outside the pleadings by improperly

invoking judicial notice where the facts were disputed. It also points to the court’s comparison of

use of restaurants like Café with use of grocery stores, liquor stores, and retail stores. The latter,

according to Café, were not so significantly impacted by the virus or the executive orders because

of a critical difference between their use and use of restaurants: restaurant patrons must remove

their masks to use the premises, resulting in exposure to the virus. This is why restaurants are

presumably subject to stricter regulations. The court, Café asserts, declared things to be true about

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the virus that were not matters of common knowledge or capable of verification. This made it all

the more important, Café argues, for it to have the opportunity to rebut those findings. Accordingly,

it maintains, the court erred in finding that the virus did not prevent the use of the premises, which

was a fact to be determined at trial.

¶ 38 Society responds that neither the Governor’s orders nor any alleged presence of the virus

altered the tangible, physical characteristics of the premises or permanently physically

dispossessed Café of its property. Café’s temporary reduction in operations, Society contends, was

not the result of a “direct physical loss of or damage to” insured property.

¶ 39 We conclude that the policy unambiguously requires a physical alteration or substantial

dispossession, not merely loss of use, which is what Café sufficiently pleaded it experienced. Both

the business income and extra expense coverage provisions in Society’s policy require a “direct

physical loss of or damage to” Café’s property that is “caused by or resulting from a Covered

Cause of Loss” and provide coverage for certain losses occurring “during the ‘period of

restoration.’ ” A covered cause of loss is defined as a “Direct Physical Loss unless the loss is

excluded or limited under this coverage form.”

¶ 40 The policy does not define “direct physical loss of or damage to.” The term “physical loss”

is more relevant to our inquiry. “Loss” means “the act or fact of being unable to keep or maintain

something or someone” (Merriam-Webster’s Online Dictionary, www.merriam-

webster.com/dictionary/loss (last visited Mar. 2, 2022) [https://perma.cc/Y7C8-5SRA]) or

“DEPRIVATION” (Webster’s Third New International Dictionary (1993)). The term “physical”

modifies “loss.” “Physical” means “having material existence: perceptible especially through the

senses and subject to the laws of nature” and “of or relating to material things.” Merriam-Webster’s

Online Dictionary, www.merriam-webster.com/dictionary/physical (last visited Mar. 2, 2021)

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[https://perma.cc/P2HX-KAVB]. Finally, the term “direct” means “marked by absence of an

intervening agency, instrumentality, or influence” or “characterized by close logical, causal, or

consequential relationship.” Merriam-Webster’s Online Dictionary, www.merriam-

webster.com/dictionary/direct (last visited Mar. 2, 2021) [https://perma.cc/D8Y9-2LAK]. Thus,

“physical loss” unambiguously requires that the deprivation be caused by a material thing, which

necessarily rules out economic losses resulting from Café’s inability to fully run its business. The

trial court ignored the term “physical” and, instead, looked only at the definition of “loss” in

determining that loss of use is a covered loss.

¶ 41 In our supreme court’s decision in Travelers Insurance Co. v. Eljer Manufacturing, Inc.,

197 Ill. 2d 278 (2001), its interpretation of the term “physical injury to tangible property,” is

consistent with the dictionary definition of “physical” upon which we rely. Unlike here, Eljer

involved several comprehensive general liability policies. At issue was the trigger for indemnity

coverage in thousands of product liability claims alleging “property damage” arising out of the

failure of a residential plumbing system. The policies that were controlled by Illinois law defined

“property damage” as “physical injury to or destruction of tangible property.” Id. at 287. The

insurers took the position that indemnity coverage was triggered when the system first leaked, and

the policyholders argued that it was triggered at the time the system was installed. The supreme

court held that “physical injury to tangible property” was not ambiguous and that tangible property

suffers “physical” injury when that property is “altered in appearance, shape, color or in other

material dimension.” Id. at 301 (relying on dictionary definition). Tangible property does not

experience physical injury “if that property suffers intangible damage, such as diminution in value

as a result from the failure of a component *** to function as promised.” Id. at 301-02, 310, 312.

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¶ 42 Mindful of the policy’s unambiguous requirement that the deprivation be caused by a

material thing, we turn to consider Café’s specific arguments. In its complaint, Café alleged that it

sustained losses both due to the virus’s presence at and around its premises and due to the executive

orders. Both theories fail.

¶ 43 First, Café alleged that the virus has a material existence and physically damages tangible

property by rendering it unusable because it adheres to surfaces, creating a dangerous property

condition and “direct physical loss of or damage to” the property. Case law assessing asbestos

claims and noxious gas contamination cases, which present analogous scenarios, have held that

such intangible damage may cause “physical loss” or physical “damage.” See, e.g., Inns by the Sea

v. California Mutual Insurance Co., 286 Cal. Rptr. 3d 576, 587-89 (Ct. App. 2021) (citing cases

addressing presence of ammonia, wildfire smoke, asbestos, unsafe carbon monoxide levels, odor

from methamphetamine operation, persistent cat urine odor, or sulfuric gas); see also Farmers

Insurance Co. of Oregon v. Trutanich, 858 P.2d 1332, 1335-36 (Or. Ct. App. 1993) (relying on

case law addressing airborne particulates and first holding that pervasive odor from

methamphetamine operation was physical because it damaged a house; also, relying on a case

involving gasoline and vapor contamination and infiltration, holding that the cost of removing the

odor was a “direct physical loss,” where odor produced by methamphetamine lab infiltrated the

house). However, we agree with the case law that has found these cases distinguishable, because,

unlike here, the substances rendered the premises unusable. See, e.g., Inns by the Sea, 286 Cal.

Rptr. 3d at 588-90 (finding the asbestos, gas, and smoke cases inapplicable because the virus,

unlike the substances in the other cases, did not cause the premises to be uninhabitable or

unsuitable for their intended purpose, where the government orders were issued in response to the

virus’s presence in the community at large; even if the plaintiff had sterilized its premises, it would

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still have had to suspend its operations to comply with the orders); see also Sandy Point Dental,

P.C. v. Cincinnati Insurance Co., 20 F.4th 327, 334 (7th Cir. 2021) (distinguishing gas cases on

the basis that the contamination barred “all uses by all persons,” whereas the COVID-19 virus only

partially limited the plaintiffs’ preferred use of their premises). The fact that the virus was present

at Café’s premises, an allegation we must accept as true, did not result in or cause “direct physical

loss of or damage to” the property. This is because no property needed to be repaired or replaced.

Furthermore, unlike a noxious gas, for example, the virus’s presence is easily remediated by

routine, not specialized or costly, cleaning and disinfecting or will die off after a few days, the

latter of which Café pleaded. See id. at 335 (noting that, even if virus physically attached itself to

the plaintiffs’ premises, this did not constitute an allegation that the virus altered the physical

structures to which it attached “and there is no reason to think that it could have done so”; virus

“may be wiped off surfaces using ordinary cleaning materials, and it disintegrates on its own in a

matter of days”); Uncork & Create LLC v. Cincinnati Insurance Co., 498 F. Supp. 3d 878, 883-84

(S.D. W. Va. 2020) (actual presence of virus does not trigger coverage for physical damage or

loss; “[b]ecause routine cleaning, perhaps performed with greater frequency and care, eliminates

the virus on surfaces, there would be nothing for an insurer to cover, and a covered ‘loss’ is

required to invoke the additional coverage for loss of business income under the Policy”); see also

Firenze Ventures LLC v. Twin City Fire Insurance Co., No. 20 C 4226, 2021 WL 5865710, at *5

(N.D. Ill. Dec. 10, 2021) (citing cases); see also COVID-19: Cleaning and Disinfecting Your

Facility, Cents. for Disease Control & Prevention (Nov. 15, 2021), https://www.cdc.gov/

coronavirus/2019-ncov/community/disinfecting-building-facility.html [https://perma.cc/3NNT-

HK3M] (noting that the most reliable way to prevent infection from surfaces is to regularly wash

hands with soap and water or to use alcohol-based hand sanitizer; also noting that surfaces should

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be cleaned and disinfected if someone with the virus was present and providing list of disinfectants,

many of which are readily available consumer goods; cf. Trutanich, 858 P.2d at 1336 (chemical

company hired to clean house that sustained observable smoke damage from methamphetamine

lab; finding “direct physical loss” covered by policy). The trial court did not err in taking judicial

notice of the ease of cleaning the virus off surfaces, as this is a matter of common knowledge about

this virus. See In re Marriage of Kohl, 334 Ill. App. 3d 867, 874 (2002) (a court may take judicial

notice of facts that are a matter of common and general knowledge and are well established and

known within the court’s jurisdiction).

¶ 44 As we must read the policy as a whole (Wilson, 237 Ill. 2d at 455; Gibbs, 242 Ill. App. 3d

at 152), we note that the period-of-restoration provision supports our conclusion. The policy

provides coverage of lost business income and extra expense during the “period of restoration,”

which begins at the time of “direct physical loss or damage *** caused by or resulting from any

covered Cause of Loss” at the premises and ends on the earlier of (1) the date when the property

“should be repaired, rebuilt or replaced with reasonable speed and similar quality” or (2) “[t]he

date when the business is resumed at a new permanent location.” It includes “any increased period

required to repair or reconstruct the property to comply with the minimum standard of, or

compliance with[,] any ordinance or law, in force at the time of loss, that regulates the construction

or repair, or requires the tearing down of property.” This provision assumes physical alteration of

the property, not mere loss of use, because it provides coverage until the property “should be

repaired, rebuilt or replaced.” “Repair,” which is undefined in Society’s policy, means “to restore

by replacing a part or putting together what is torn or broken: FIX.” Merriam-Webster’s Online

Dictionary, https://www.merriam-webster.com/dictionary/repair (last visited Mar. 2, 2022)

[https://perma.cc/Q63P-QAZD]. “Rebuild” means “to make extensive repairs to:

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RECONSTRUCT.” Merriam-Webster’s Online Dictionary, https://www.merriam-webster.com/

dictionary/rebuild (last visited Mar. 2, 2022) [https://perma.cc/VPH9-F9YV]. Property that has

sustained “physical loss” or physical “damage” requires restoration. Property that has not sustained

such loss or damage has not sustained a “direct physical loss.”

¶ 45 Café’s second theory is that the executive orders prohibited access to its business and that

the continued orders required it to cease and/or significantly reduce access to, and operations at,

its premises. These orders, it asserts, caused “direct physical loss of or damage to” its property.

We disagree. The executive orders did not cause a tangible “loss of or damage to” Café’s property,

which is what is required for coverage under the business income and extra expense provisions.

They merely prohibited in-person dining, which is one use of the property, but permitted food

preparation for carryout dining and delivery. Café seeks to equate loss of use with “direct physical

loss,” which it cannot do. The prohibition on in-person dining was not connected to any change in

the physical condition of the premises or property at the premises, nor did it cause any physical

harm to the premises or any property. It caused an economic loss for Café.

¶ 46 Café also argues that “direct physical loss” must mean something other than “direct

physical damage.” It contends that, otherwise, the policy contains surplus language. It argues that

“direct physical loss” includes “loss of use.” We disagree. Café’s interpretation reads out the word

“physical” from the policy. Nor does “loss” have the same meaning as “loss of use.” Loss of use

without “physical loss” is not covered. See Firenze Ventures LLC, 2021 WL 5865710, at *3

(“physical loss” does not refer to any deprivation; it refers to “a deprivation caused by a tangible

or concrete change in the condition or location of the thing that is lost”). Further, here, the policy

uses the term “loss of use” elsewhere, indicating that it has a different meaning than mere “loss.”

For example, in the exclusion for consequential losses, the policy provides that Society “will not

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pay for loss or damage caused by or resulting from” consequential losses, specifically, “[d]elay,

loss of use or loss of market.” (Emphasis added.)

¶ 47 Finally, Café also notes that Society’s policy did not contain a virus exclusion. We

conclude that this is of no import here. Unless the policy already granted coverage, which it does

not do, a virus exclusion was not necessary. Further, the absence of an exclusion cannot “create an

ambiguity in an otherwise unambiguous insuring clause.” Inns by the Sea, 286 Cal. Rptr. 3d at

593-94.

¶ 48 We note that our decision is consistent with the majority of cases throughout the country

interpreting the application of similar provisions to pandemic-related losses. See id. at 579 n.1 (in

opinion dated November 15, 2021, noting that “overwhelming majority of federal district court

cases find no possibility of coverage under commercial property insurance policies for a business’s

pandemic-related loss of income” and each federal appellate court to consider the issue concluded

the same; collecting cases); Image Dental, LLC v. Citizens Insurance Co. of America, 543 F. Supp.

3d 582, 591-92 (N.D. Ill. 2021) (citing cases); see also 10A Couch on Insurance § 148:46 (Steven

Plitt et al. eds., 3d ed. Nov. 2021 update) (“The requirement that the loss be ‘physical,’ given the

ordinary definition of that term, is widely held to exclude alleged losses that are intangible or

incorporeal and, thereby, to preclude any claim against the property insurer when the insured

merely suffers a detrimental economic impact unaccompanied by a distinct, demonstrable,

physical alteration of the property.”).

¶ 49 Indeed, all published federal appellate court decisions have ruled in the insurance

companies’ favor. See Terry Black’s Barbeque, L.L.C. v. State Automobile Mutual Insurance Co.,

22 F.4th 450, 453, 455-58 (5th Cir. 2022) (applying Texas law and affirming judgment on the

pleadings in insurer’s favor; holding that the plaintiff restaurant group, which suspended dine-in

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service in response to pandemic-related government orders, did not sustain “direct physical loss”

of property under the business income or extra expense coverages; concluding that the plaintiff

did not sufficiently allege any tangible alteration or deprivation of its property; this interpretation

was consistent with period-of-restoration provision; the nature of the policy focused on

commercial property, but the claimed loss was only an economic loss that did not have a tangible

effect on the property; limitation on use of dining rooms was not a physical loss of property, but a

loss of use for its intended purpose); 10012 Holdings, Inc. v. Sentinel Insurance Co., 21 F.4th 216,

220-23 (2nd Cir. 2021) (applying New York law and affirming dismissal for failure to state a

claim; holding that the plaintiff art gallery, which had to resort to online sales in response to

pandemic-related government orders, failed to sufficiently allege a “direct physical loss” under the

policy’s business income and extra expense coverages; case law required direct “physical”

“damage,” which was not alleged; New York courts applying New York law had reached the same

conclusion in pandemic-related cases; and “direct physical loss” and “physical damage” did not

extend to mere loss of use of premises, where there was no “physical damage” to the premises);

Goodwill Industries of Central Oklahoma, Inc. v. Philadelphia Indemnity Insurance Co., 21 F.4th

704, 709-12 (10th Cir. 2021) (applying Oklahoma law and affirming dismissal for failure to state

a claim; holding that the plaintiff nonprofit, which suspended its retail store/donation center

operations to comply with pandemic-related government orders, failed to sufficiently allege

coverage under business income provision; policy did not cover “direct physical loss of” property

for suspension-related losses; term required “immediate and perceptible destruction or deprivation

of property,” and the plaintiff did not lose physical control of its property, nor was it destroyed;

intangible losses are not physical losses; “physical loss” includes deprivation of property without

any damage to it, not deprivation of some particular use; period-of-restoration provision was

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consistent with this meaning; and majority of courts had similarly construed the relevant terms);

Sandy Point Dental, 20 F.4th at 329-37 (applying Illinois law and affirming dismissal of the

plaintiffs’ complaints for failure to state a claim, where the parties (dental practice, restaurant

group, and hotel group) sought coverage for business losses resulting from either the virus or the

closure orders; holding that the plaintiffs failed to allege “direct physical loss of or damage to”

property; “[w]hatever ‘loss’ means, it must be physical in nature” because the term “direct

physical” modifies “loss”; period-of-restoration provision supports this; majority of case law

supports this; and gas-infiltration case law involved complete dispossession of property, thus,

barring all uses by all persons, unlike in the case before it; virus did not alter premises, where it

may be wiped off surfaces using ordinary cleaning materials); Mudpie, Inc. v. Travelers Casualty

Insurance Co. of America, 15 F.4th 885, 890-93 (9th Cir. 2021) (under California law, pandemic

shelter-in-place orders that prevented operation of the plaintiff’s children’s store did not cause

“direct physical loss of or damage to” property under comprehensive commercial property policy

for insured to recover loss of business income or extra expense; affirming dismissal of the

complaint for failure to state a claim; the plaintiff did not allege that COVID-19 was present in its

premises; California case law distinguished intangible, incorporeal, and economic losses from

physical ones; policy’s period-of-restoration provisions contemplated coverage only if there were

physical alterations to property; foreign case law was consistent with this holding); Santo’s Italian

Café LLC v. Acuity Insurance Co., 15 F.4th 398, 401-06 (6th Cir. 2021) (under Ohio law,

pandemic-triggered government order barring in-person dining at a restaurant did not cause “direct

physical loss of or damage to” property such that insured could recover business interruption

losses; affirming dismissal for failure to state a claim; common and ordinary meaning of key terms

required immediate tangible deprivation of property, which had not occurred—restaurant could

- 23 - 2022 IL App (2d) 210088

still be put to use in full, even if not for in-person dining, and the plaintiff did not argue that the

virus physically and directly altered the property; nor did government orders do so; “loss of use

simply is not the same as a physical loss”; period-of-restoration provisions supported holding,

where there was nothing to repair, rebuild, or replace that would allow resumption of in-person

dining; restaurant had not alleged that its property was unusable or uninhabitable; policy was

unambiguous, and any overlap between “direct physical loss” and “direct physical damage” did

not render it ambiguous); Oral Surgeons, P.C. v. Cincinnati Insurance Co., 2 F.4th 1141, 1144-45

(8th Cir. 2021) (applying Iowa law and affirming dismissal of the plaintiff’s complaint seeking

coverage for lost business income and extra expenses sustained after the governor’s orders

restricted nonemergency procedures; holding that there was no “direct physical loss of or physical

damage to” the plaintiff’s property where it was unable to fully use its offices; policy

unambiguously required “some physicality to the loss or damage of property,” such as “a physical

alteration, physical contamination, or physical destruction”; and this interpretation was consistent

with period-of-restoration provision).

¶ 50 As Café notes, several district court decisions have interpreted similar insurance policy

provisions to cover, or at least possibly cover, losses due to government COVID-19 closure orders.

See, e.g., Seifert v. IMT Insurance Co., 542 F. Supp. 3d 874, 878-81 (D. Minn. 2021) (Minnesota

law; executive orders closed the plaintiff’s hair salon and barbershop; finding that Minnesota law

did not require structural or tangible injury to property); Derek Scott Williams PLLC v. Cincinnati

Insurance Co., 522 F. Supp. 3d 457, 462-64 (N.D. Ill. 2021) (Texas law; government order

postponed elective surgeries and nonemergency medical and dental procedures; declining to

dismiss business income claims; finding that “physical loss” “is broad enough to cover *** a

deprivation of the use of [the plaintiff’s] premises” because that is its common meaning); In re

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Society Insurance Co. COVID-19 Business Interruption Protection Insurance Litigation, 521 F.

Supp. 3d 729, 741-43 (N.D. Ill. 2021) (Illinois, Wisconsin, Minnesota, and Tennessee laws;

restaurant and other hospitality-industry plaintiffs); Elegant Massage, LLC v. State Farm Mutual

Automobile Insurance Co., 506 F. Supp. 3d 360, 376 (E.D. Va. 2020) (the massage parlor plaintiff

closed its business due to government closure order; plausible that parlor experienced “direct

physical loss” when it was deemed uninhabitable and dangerous to use by the government orders

because of its high risk of spreading virus; analogizing to noxious gas case law); Studio 417, Inc.

v. Cincinnati Insurance Co., 478 F. Supp. 3d 794, 800-03 (W.D. Mo. 2020) (Missouri law).

However, disagreement among courts concerning the interpretation of a policy provision does not,

by itself, render the provision ambiguous. See, e.g., Erie Insurance Group v. Sear Corp., 102 F.3d

889, 894 (7th Cir. 1996) (rejecting the argument that an insurance policy term was ambiguous “on

the basis of conflicting case law” interpreting the term). Further, we are not persuaded by the

analyses in this case law.

¶ 51 For example, in In re Society Insurance Co., the district court denied Society’s summary-

judgment motion as to the policy’s business income coverage. The disjunctive “or,” the court

found, meant that “physical loss” covers something different from “physical damage.” In re

Society Insurance Co., 521 F. Supp. 3d at 741. The court determined that a reasonable jury could

find that the plaintiffs suffered a “direct physical loss of” property on their premises by the

restrictions on onsite dining because (1) the shutdown orders imposed a physical limit (the

restaurants were limited from using much of their physical space) and (2) the period-of-restoration

provision did not warrant a different finding because it described a time period during which

business income losses would be covered, not an explicit definition of coverage, and it included

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the terms “repaired” and “replaced,” which could reference safety features, such as installation of

partitions or a ventilation system. Id. at 742-43.

¶ 52 Similarly, in Studio 417, Inc., the district court denied the insurer’s motion to dismiss,

finding that the plaintiff hair salons and restaurants had adequately alleged a “direct physical loss”

under the policies. Studio 417, Inc., 478 F. Supp. 3d at 800. First, it determined that the plaintiffs

alleged a causal relationship between the virus and their losses, that the virus is a physical

substance and lives on surfaces and is emitted into the air, and that the virus attached to and

deprived them of their property, making it “ ‘unsafe and unusable, resulting in direct physical loss

to the premises and property.’ ” Id. These allegations, the court found, plausibly alleged “direct

physical loss” based on the ordinary meaning of the phrase. Id. Second, the court determined that

“physical loss” was different from physical “damage” and that “physical loss” may occur when

the property is uninhabitable or unusable for its intended purpose. Id. at 801-03 (citing, among

others, an asbestos case and noting that contrary case law was decided at the summary-judgment

stage, was factually dissimilar, and/or was not binding). The plaintiffs had alleged physical

contamination by the virus, which was likely on their premises and caused them to cease or

suspend operations. Id. at 802. Rejecting case law that held that the virus does not cause “direct

physical loss,” the district court commented that the presence of the virus on premises “is not a

benign condition.” Id. The plaintiffs, it found, plausibly alleged that the virus attached to and

damaged their property, which caused the premises to be unsafe and unusable. Id.

¶ 53 We decline to follow these cases, because they ignore the unambiguous, plain, and ordinary

meaning of “direct physical loss” and do not read the policies as a whole, the latter evidenced by

their strained analyses of the period-of-restoration provisions. They also fail to closely read the

noxious gas and related cases, which, as noted, were decided on the bases that the substances at

- 26 - 2022 IL App (2d) 210088

issue rendered the premises uninhabitable or resulted in substantial dispossession. In contrast, Café

did not sufficiently plead that it was substantially dispossessed of its property by either the

pandemic or the executive orders, as it was allowed to (and apparently did) provide carryout and

delivery services to its patrons. Furthermore, it did not plead that it was required to hire specialized

contractors to clear its premises of the virus; indeed, this is not required for the virus. The virus is

certainly not benign, as evidenced by the over 800,000 deaths in this country (COVID Data

Tracker, Cents. for Disease Control and Prevention, https://covid.cdc.gov/covid-data-

tracker/#datatracker-home (last visited Mar. 2, 2022) [https://perma.cc/K8XC-QE7X]), but where

Café continued to operate with somewhat limited services and where the virus did not physically

alter the property and where routine cleaning or the mere passage of a brief period eliminates it,

Café’s property did not become uninhabitable, nor did it sustain a substantial dispossession of its

property.

¶ 54 We are not unsympathetic to the immense challenges facing restaurants and other

hospitality-service providers during the present pandemic. However, we must construe the contract

into which the parties entered and hold them to their agreement.

¶ 55 In summary, the partial loss of Café’s use of its premises, without any physical alteration

to the property or a deprivation of use or access so substantial as to constitute a physical

dispossession, was not sufficient to allege a “direct physical loss of or damage to” its property to

trigger coverage under Society’s business interruption or extra expense additional coverages.

Because we conclude that there is no coverage under the additional coverage provisions, we need

not, and do not, consider whether any applicable coverage would be excluded under the ordinance

or law exclusion.

¶ 56 III. CONCLUSION

- 27 - 2022 IL App (2d) 210088

¶ 57 For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

¶ 58 Affirmed.

¶ 59 JUSTICE MCLAREN, specially concurring:

¶ 60 I specially concur because I wish to discuss a rule of construction. The Latin phrase

expressio unius est exclusio alterius means that “to express or include one thing implies the

exclusion of the other or alternative.” Black’s Law Dictionary 620 (8th ed. 2004) (also termed

inclusio unius est exclusio alterius). This familiar maxim has been cited as authority as far back as

1806 by the United States Supreme Court (Manella, Pujals & Co. v. Barry, 7 U.S. (Cranch) 415,

430 (1806)) and 1891 by our supreme court (McWilliams v. Morgan, 61 Ill. 89, 93 (1891)). It

applies to the interpretation of statutes (see, e.g., Schultz v. Performance Lighting, Inc., 2013 IL

115738, ¶ 17; In re D.W., 214 Ill. 2d 289, 308 (2005)) and contracts (see, e.g., Lobo IV, LLC v.

Land Chicago Canal, LLC, 2019 IL App (1st) 170955, ¶ 83; Krause v. GE Capital Mortgage

Services, Inc., 314 Ill. App. 3d 376, 386 (2000)). 5

¶ 61 The parties and the majority neither mention nor cite the rule. If Café had cited the rule, it

would have compromised its argument regarding coverage because there was only one kind of loss

listed. The rule limited coverage to only physical loss and excluded other forms of loss.

¶ 62 Concomitantly, if Society had cited the rule, it would have compromised its claim of

exclusion of coverage because the Governor’s executive orders are neither a law nor an ordinance.

5 The rule also applies to supreme court rules. In re Estate of Rennick, 181 Ill. 2d 395, 404

(1998) (“In interpreting a supreme court rule, we apply the same principles of construction that

apply to a statute.” (Emphasis added.)).

- 28 - 2022 IL App (2d) 210088

Therefore, under the rule of construction, the failure to include an executive order in the exclusion

would not have effectuated the exclusion.

¶ 63 The majority does not address the merits of the law or ordinance exclusion but states, “Such

losses were excluded, [the trial court] determined, because they resulted from [‘]enforcement or

compliance with any ordinance or law.[’] ” Supra ¶ 33. The majority is not required to address

issues not necessary to the review of the judgment to affirm. See West Bend Mutual Insurance Co.

v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, ¶ 60 (after affirming on another basis, the court

concluded there was no need to address the remaining issue raised by the appellee). However, I

specially concur because I wish to emphasize that the rule of construction should be utilized by

trial courts regardless of whether the parties cite it. 6

6 An additional rule of construction requires a strict construction when there is an ambiguity

or more than one reasonable interpretation. Where the language of an insurance policy is

ambiguous, it should be construed against the insurer, which drafted the policy. In re Estate of

Striplin, 347 Ill. App. 3d 700, 702 (2004). This doctrine, also known as contra proferentem

(“[a]gainst the party who proffers or puts forward a thing” (Black’s Law Dictionary 296 (5th ed.

1979))), requires that ambiguities be strictly construed against the drafter of the instrument.

International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co., 168 Ill. App. 3d 361,

370-71 (1988).

- 29 - 2022 IL App (2d) 210088

No. 2-21-0088

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 20-CH-266; the Hon. Kevin T. Busch, Judge, presiding.

Attorneys Michael W. Rathsack, and Antonio M. Romanucci, Gina A. for Deboni, and David A. Neiman, of Romanucci & Blandin, LLC, Appellant: both of Chicago, and Robert P. Rutter and Robert A. Rutter, of Rutter & Russin, LLC, and Nicholas A. DiCello, Dennis R. Lansdowne, and Jeremy A. Tor, of Spangenberg, Shibley & Liber, LLP, both of Cleveland, Ohio, for appellant.

Attorneys Michael D. Sanders, Michelle A. Miner, and Amy E. Frantz, of for Purcell & Wardrope, Chtrd., of Chicago, for appellee. Appellee:

Amicus Curiae: John H. Mathias Jr., David M. Kroeger, Megan B. Poetzel, Gabriel K. Gillett, and Sara M. Stappert, of Jenner & Block LLP, of Chicago, for amici curiae Restaurant Law Center et al.

Michael R. Enright, of Robinson & Cole LLP, of Hartford, Connecticut, for amici curiae American Property Casualty Insurance Association et al.

- 30 -