Tapestry, Inc. v. Factory Mut. Insurance

482 Md. 223

• Court: Court of Appeals of Maryland
• Decided: December 15, 2022
• Docket: 1m/22
• Status: Published

Opinion

Tapestry, Inc. v. Factory Mutual Insurance Company, Misc. No. 1, September Term, 2022.

POLICY INTERPRETATION – ALL-RISK PROPERTY INSURANCE – RISKS OR LOSSES COVERED

The United States District Court for the District of Maryland certified a question to the Supreme Court of Maryland.* The Court reformulated the question as follows:

When a first-party, all-risk property insurance policy covers “all risks of physical loss or damage” to insured property from any cause unless excluded, is coverage triggered when a toxic, noxious, or hazardous substance—such as Coronavirus or COVID-19—is physically present in the indoor air of that property; is also present on, adheres to, and can later be dislodged from physical items on the property; and causes a loss, either in whole or in part, of the functional use of the property?

The Court answered the certified question: No, provided the substance causes neither tangible, concrete, and material harm to the property nor deprivation of possession of the property.

*At the time of the certification, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. United States District Court for the District of Maryland Case No. 1:21-cv-01941-GLR Argued: September 9, 2022

IN THE SUPREME COURT

OF MARYLAND*

Misc. No. 1

September Term, 2022

______________________________________

TAPESTRY, INC.

v.

FACTORY MUTUAL INSURANCE COMPANY ______________________________________

Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves,

JJ. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Opinion by Fader, C.J. document is authentic. ______________________________________ 2023-06-15 12:13-04:00

Filed: December 15, 2022

Gregory Hilton, Clerk

* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. A question certified to us by the United States District Court for the District of

Maryland (the “United States District Court”) requires that we explore whether an

insurance policy that “covers property . . . against ALL RISKS OF PHYSICAL LOSS OR

DAMAGE, except as hereinafter excluded,” and further covers “TIME ELEMENT” losses

“directly resulting from physical loss or damage of the type insured,” is triggered by (1) the

presence of Coronavirus in the air and on surfaces on the premises of the insured’s retail

stores or (2) the resulting loss of functional use of those stores during portions of the

COVID-19 pandemic.1 Assuming the truth of the facts pled in the operative complaint

about how Coronavirus operates and how it impacted the insured’s properties and

operations, as summarized in the United States District Court’s certification order, and

based on the provisions of the insurance policies at issue, we will conclude that such

allegations do not trigger the primary coverage provided by the policies.

There is nothing this Court can say to describe the gravity of the losses inflicted on

the world by the COVID-19 pandemic that has not previously been said. We will not try.

It is sufficient for these purposes to note that in addition to the countless other consequences

of, and hardships imposed by, the pandemic, many businesses sustained substantial

financial losses when they were compelled to close temporarily or alter their operations

due to the pandemic and associated governmental orders.

1 “Coronaviruses are a type of virus.” See What is Coronavirus?, Johns Hopkins Med. (July 29, 2022), archived at https://perma.cc/NG7A-GM2L. SARS-CoV-2 is a coronavirus that causes the respiratory disease known as COVID-19. Id. In this opinion, for ease of reference, we use “Coronavirus” to refer to SARS-CoV-2 and COVID-19 to refer to the resulting disease. One such business is that of Tapestry, Inc., the appellant. Factory Mutual Insurance

Company (“FM”), the appellee, issued two first-person, all-risk commercial property

insurance policies to Tapestry covering policy periods in which Tapestry’s stores were

closed in connection with the COVID-19 pandemic. The primary coverages provided

under those policies are triggered by “physical loss or damage” to covered property.

Tapestry submitted claims to FM under the policies for losses exceeding

$700 million. After FM denied coverage for the bulk of Tapestry’s claim, Tapestry sued.

In the lawsuit, which is now pending in the United States District Court, Tapestry contends

that coverage under the policies is triggered because it suffered “physical loss or damage”

both by the presence of Coronavirus in its stores and when those stores had to close for

business due to the presence of Coronavirus. In response, FM contends that “physical loss

or damage” requires structural alteration or permanent dispossession of property, and that

Tapestry suffered neither. Because resolution of that dispute depends on an interpretation

of Maryland law we have not previously provided, the United States District Court certified

to this Court a question of law, which we have reformulated as follows:2

2 The question as originally drafted by Tapestry and certified to this Court is: When a first-party, all-risk property insurance policy covers “all risks of physical loss or damage” to insured property from any cause unless excluded, is coverage triggered when a toxic, noxious, or hazardous substance—such as Coronavirus or COVID-19—that is physically present in the indoor air of that property damages the property or causes loss, either in whole or in part, of the functional use of the property? Certification Order Certifying a Question of Law to the Maryland Court of Appeals (“Certification Order”) at 1. As phrased, the question seems to presuppose that Coronavirus “damages the property.” However, as reflected in the parties’ briefing and as confirmed by their counsel at oral argument, the intent of the parties—and, they and we 2 When a first-party, all-risk property insurance policy covers “all risks of physical loss or damage” to insured property from any cause unless excluded, is coverage triggered when a toxic, noxious, or hazardous substance—such as Coronavirus or COVID-19—is physically present in the indoor air of that property; is also present on, adheres to, and can later be dislodged from physical items on the property; and causes a loss, either in whole or in part, of the functional use of the property?

As we will explain, as applied to the policies at issue, our answer to the certified question

is: No, provided the substance causes neither tangible, concrete, and material harm to the

property nor deprivation of possession of the property.

BACKGROUND

Pursuant to § 12-605(a) of the Courts and Judicial Proceedings Article (2020 Repl.),

the United States District Court’s Certification Order contains “[t]he facts relevant to the

question, showing fully the nature of the controversy out of which the question arose.” Id.

§ 12-606(a). In responding to the certified question, “this Court accepts the facts provided

by the certifying court.” United Bank v. Buckingham, 472 Md. 407, 413 (2021). The

following recitation of facts is drawn from the Certification Order and the three documents

attached to and incorporated into it: Tapestry’s operative first amended complaint (the

“Complaint”) and the two insurance policies at issue.

believe, the United States District Court—is not to presuppose that Coronavirus has caused “physical loss or damage” as that phrase is used in the FM policies. Instead, the intent is to have this Court address whether, under Maryland law, the allegations in Tapestry’s first amended complaint concerning the operation and effect of Coronavirus on its stores and business constitute “physical loss or damage” such as to trigger coverage under FM’s policies. Our reformulation of the certified question is designed to reflect that. 3 The Parties and the Policies

Tapestry owns “modern luxury accessory and lifestyle brands” including Coach,

kate spade new york, and Stuart Weitzman. Tapestry operates “over 1,400 stores in the

U.S. and internationally, including 15 stores in Maryland.”

FM drafted and issued to Tapestry two “all-risk” commercial property insurance

policies: (1) Policy No. 1050294, covering policy period April 4, 2019 through April 3,

2020; and (2) Policy No. 1065667, covering policy period April 4, 2020 through April 3,

2021 (collectively, the “Policies”).3 The Policies, which FM wrote using its FM Global

Advantage Time Element Select form, “cover[] property, as described in this Policy,

against ALL RISKS OF PHYSICAL LOSS OR DAMAGE, except as hereinafter

excluded.” The critical phrase “physical loss or damage” is not defined in the Policies.

As relevant here, the Policies provide two broad categories of coverage: “Property

Damage” and “Time Element.”4 Each category is set forth in a separate section of each

Policy that contains, among other things, a broad coverage grant, various exclusions, and

various additional coverages. Each Policy provides a maximum overall limit of liability

per occurrence of $1 billion, applicable to all coverages, with lower sublimits applicable to

specified types of coverage.

3 Each policy technically expires at 12:01 a.m. on April 4 of the year of expiration. 4 The Policies also provide a third category of coverage—“Loss Adjustment and Settlement”—which is not relevant to the present dispute.

4 Property Damage Coverage Provisions

The Policies’ primary Property Damage coverage extends to all of Tapestry’s real

property and certain personal property, subject to exclusions. Two of those exclusions are

relevant to our analysis. First, each Policy excludes coverage, “unless otherwise stated,”

for, among other things, “interruption of business, except to the extent provided by this

Policy” and “loss of market or loss of use.” Second, each Policy excludes, “unless directly

resulting from other physical damage not excluded by this Policy . . . contamination, and

any cost due to contamination including the inability to use or occupy property or any cost

of making property safe or suitable for use or occupancy.”5 As relevant here, the Policies

define “contamination” as “any condition of property due to the actual or suspected

presence of any foreign substance, impurity, . . . toxin, pathogen or pathogenic organism,

bacteria, virus, disease causing or illness causing agent[.]”

One category of “Additional Coverage” provided in each Policy’s Property Damage

section is “Communicable Disease Response” coverage. Under that coverage grant, “[i]f

a location owned, leased or rented by the Insured has the actual not suspected presence of

communicable disease” that results in a restriction on access to the location, the Policies

will “cover[] the reasonable and necessary costs incurred by the Insured at such

location[.]” The Policies define “communicable disease” as “disease which is [ ]

transmissible from human to human by direct or indirect contact with an affected individual

or the individual’s discharges.”

5 Words identified in boldface type in the Policies are defined in each Policy.

5 Time Element Coverage Provisions

In each Policy, the primary coverage grant for Time Element losses6 provides that

the “Policy insures TIME ELEMENT loss, as provided in the TIME ELEMENT

COVERAGES, directly resulting from physical loss or damage of the type insured.”7 The

Policies insure such losses only to the extent they are incurred “during the Periods of

Liability,” which, for purposes of physical loss or damage to “building[s] and equipment,”8

is the period:

a) starting from the time of physical loss or damage of the type insured; and

b) ending when with due diligence and dispatch the building and equipment could be:

(i) repaired or replaced; and

(ii) made ready for operations,

6 In other policies, time element coverage is sometimes referred to as business interruption or business income loss coverage. See, e.g., Uncork & Create LLC v. Cincinnati Ins. Co., 27 F.4th 926, 932 (4th Cir. 2022) (addressing policy providing “[b]usiness income loss coverage”); Cordish Cos., Inc. v. Affiliated FM Ins. Co., 573 F. Supp. 3d 977, 987 (D. Md. 2021) (interpreting policy covering “[b]usiness [i]nterruption loss”), aff’d, No. 21-2055, 2022 WL 1114373 (4th Cir. Apr. 14, 2022). 7 Each Policy’s “TIME ELEMENT COVERAGES” provide coverage for (1) at the insured’s option, either gross earnings and extended period of liability or gross profit; (2) extra expense; (3) leasehold interest; and (4) rental insurance. 8 The Policies define the period of liability differently when the physical loss or damage at issue is to other types of property, including “building and equipment under construction,” “stock-in-process and mercantile stock,” “raw materials and supplies,” “water,” “physically damaged exposed films, records, manuscripts and drawings,” and “physically damaged or destroyed property covered under DATA, PROGRAMS OR SOFTWARE.” Here, because Tapestry’s claim relates at least primarily to alleged loss and damage to buildings and equipment—and because the other categories are either clearly inapplicable or also define their ending point by reference to the repair or replacement of the property at issue—we focus on that definition. 6 under the same or equivalent physical and operating conditions that existed prior to the damage.

The Time Element coverage section of the Policies includes several “TIME

ELEMENT COVERAGE EXTENSIONS” and “ADDITIONAL TIME ELEMENT

COVERAGE EXTENSIONS.” One extension in the latter category is the Interruption by

Communicable Disease additional coverage extension, which provides that if “a location

owned, leased or rented by [Tapestry] has the actual not suspected presence of

communicable disease” that results in a restriction on access to the property, the Policies

will cover “Actual Loss Sustained and EXTRA EXPENSE incurred by [Tapestry] during

the PERIOD OF LIABILITY at such location[.]” The Policies exclude from the

Interruption by Communicable Disease coverage extension “loss resulting from”

(1) enforcement of a law or ordinance in place before the spread of the communicable

disease; and (2) “loss or damage caused by or resulting from terrorism, regardless of any

other cause or event[.]” Notably, unlike the primary Time Element coverage, the

Interruption by Communicable Disease additional coverage extension is not predicated on

the insured property sustaining “physical loss or damage.”

Under each Policy, Interruption by Communicable Disease coverage and

Communicable Disease Response coverage are together subject to an aggregate sublimit

of liability of $1 million per occurrence (as opposed to the Policy limit of $1 billion per

occurrence).

7 Coronavirus on Tapestry’s Property

The Certification Order contains the following summary of the allegations

contained in the Complaint concerning how Coronavirus operates and how it affected

Tapestry’s properties and operations:

With the support of dozens of peer-reviewed studies, Tapestry alleges in its [Complaint] that Coronavirus/COVID-19 are serious threats rendering objects, surfaces, and areas exposed to them dangerous and fatal. See Ex. A ¶¶ 26, 30, 162. Coronavirus spreads through indoor spaces via respiratory particles expelled by infected individuals (including those who are asymptomatic or pre-symptomatic). Id. ¶¶ 26-28, 32-33. The presence of Coronavirus in the air, through aerosols or droplets, is the virus’ primary transmission vector. Id. ¶¶ 40-41, 43-44. Coronavirus, just like ammonia, physically transforms the content of the air and can remain airborne in respiratory particles for indefinite periods. Id. ¶¶ 33, 35-36, 44. Ventilation systems are particularly significant transmission vectors as studies have found Coronavirus in ceiling vent openings, vent exhaust filters, and ventilation ducts up to 180 feet from an infected individual. Id. ¶¶ 40, 42. As a result, Tapestry alleges that Coronavirus causes the same physical loss or damage to property as that of ammonia, smoke, soot, radon gas, asbestos and other hazardous substances. Id. ¶ 35.

Coronavirus particles can also settle on surfaces that themselves become carriers for the disease (“fomites”). Id. ¶¶ 32, 49, 51, 53, 56. These fomites remain infectious for days after exposure and do not readily dissipate. Id. ¶¶ 31, 51-52, 54-55. Tapestry’s various stores contain materials—like plastics, glass, metals, and fabrics—that have been documented as Coronavirus fomites. Id. ¶¶ 52 n.57, 59. Even disturbing a fomite—like shaking a contaminated textile such as clothing merchandise— can spread Coronavirus particles and create additional fomites. Id. ¶¶ 52, 59. Indeed, studies have demonstrated that “it is biologically plausible that . . . infectious disease [such as COVlD-l9] can be transmitted directly through contact with [Coronavirus] contaminated textiles.” Id. ¶ 69.

Removing Coronavirus from air is not possible as a practical matter, and no amount of cleaning will prevent reintroduction of the virus when an infected person enters the space—only shutting down the property prevents the repeated and continuous reintroduction of Coronavirus. Id. ¶¶ 63, 76, 78. Coronavirus cannot be removed from indoor air by surface cleaning, which actually causes virus particles to become airborne. Id. ¶¶ 70, 74-75.

8 Attempting to remove Coronavirus from surfaces requires unique protocols such as the use of “harsh chemicals” that are not routinely used and which themselves are alleged to have caused additional physical loss or damage to Tapestry’s stores. Id. ¶¶ 65-68, 71. Indeed, “Coronavirus is ‘much more resilient to cleaning than other respiratory viruses so tested.’” Id. ¶ 64. Moreover, it is “challenging to accurately determine the efficacy of decontaminating agents and . . . if surface disinfection [is] even effective” given the toxicity of the agents and the microscopic nature of Coronavirus particles. Id. ¶ 66.

Nonetheless, Tapestry asserts that it repaired and remediated its physical space, such as through the removal and disposal of porous materials like clothing, reconfiguring and altering interior spaces of property, and installing physical barriers to create physical distancing. Id. ¶¶ 71-72, 150, 155[,] 227. Tapestry suffered massive losses, in the hundreds of millions of dollars, for extensive and costly health and safety protocols and modifications to its stores. Id. ¶¶ 152, 155, 227.

...

Tapestry alleges that individuals infected with Coronavirus and COVID-19 were present on its insured properties where they spread the virus. Id. ¶¶ 79-80. . . . This supports the allegation that Coronavirus/COVID-19 was present at Tapestry’s stores. Id. ¶¶ 80, 99.

Furthermore, Tapestry alleges that a detailed biostatistical analysis demonstrates that it is statistically certain that customers and other individuals who visited its stores contracted and carried Coronavirus before the stores were closed, and during the time when various stores’ operations were severely restricted. Id. ¶¶ 83-91, 94, 96-101.

Due to the presence of Coronavirus/COVID-19 and the effects it had on Tapestry’s stores (particularly the indoor air), Tapestry closed all of its North American stores beginning on March 18, 2020—prior to the issuance of government orders in many counties where Tapestry operates. Id. ¶¶ 56-60, 78, 119, 122, 127-128, 132, 137-38, 142.

This Litigation

In responses to notices of claims Tapestry provided under both Policies, FM denied

coverage under all coverages except the Communicable Disease Response and Interruption

by Communicable Disease coverages, neither of which is predicated on “physical loss or

9 damage” to property. In its denial letters, FM contended that Tapestry could not meet the

requirement of other coverages because “the presence of COVID-19 does not cause

physical loss or damage.” FM also asserted that coverage was barred by the Contamination

Exclusion in the Policies.

Tapestry then initiated this lawsuit in the Circuit Court for Baltimore County. FM

removed it to the United States District Court. Tapestry’s Complaint contains two counts.

In Count I, Tapestry seeks a declaratory judgment concerning the respective rights and

obligations of the parties under the Policies. Specifically, Tapestry seeks declarations “that

the Policies cover the losses it had suffered” and “that FM is responsible for fully and

timely paying the Tapestry Claim.” In Count II, Tapestry seeks an award of damages and

other relief for FM’s alleged breaches of contract in denying coverage under the Policies

under all coverages other than the Communicable Disease Response and Interruption by

Communicable Disease coverages, which are subject to much lower sublimits of liability

than the primary coverages.

FM moved to dismiss the Complaint. With its opposition to that motion, Tapestry

filed a motion to certify a question of law to this Court. The United States District Court

granted the motion and issued the Certification Order.

DISCUSSION

Under the Maryland Uniform Certification of Laws Act, Courts and Judicial

Proceedings §§ 12-601 – 12-612, this Court “may answer a question of law certified to it

by a court of the United States . . . if the answer may be determinative of an issue in pending

litigation in the certifying court and there is no controlling appellate decision, constitutional

10 provision, or statute of this State.” Md. Code Ann., Cts. & Jud. Proc. § 12-603; see also

Md. Rule 8-305. “In responding to a certification from another court, this Court resolves

only issues of Maryland law, not questions of fact.” Murphy v. Liberty Mut. Ins. Co., 478

Md. 333, 367 (2022) . This Court “may go no further than the question certified.” Price

v. Murdy, 462 Md. 145, 147 (2018) (quoting AGV Sports Grp., Inc. v. Protus IP Sols., Inc.,

417 Md. 386, 389 n.1 (2010)).

The question certified by the United States District Court, as we have reformulated

it pursuant to § 12-604, see discussion above at footnote 2, is:

When a first-party, all-risk property insurance policy covers “all risks of physical loss or damage” to insured property from any cause unless excluded, is coverage triggered when a toxic, noxious, or hazardous substance—such as Coronavirus or COVID-19—is physically present in the indoor air of that property; is also present on, adheres to, and can later be dislodged from physical items on the property; and causes a loss, either in whole or in part, of the functional use of the property?

Notably, the certified question does not concern either (1) the possibility of coverage under

the Communicable Disease Response or Interruption by Communicable Disease coverages

of the Policies, or (2) the possible application of the Policies’ Contamination Exclusion.

As a result, we will not decide those issues. We will, however, discuss those provisions of

the Policies to the extent they aid in our interpretation of the key policy term “physical loss

or damage.”

THE PHRASE “PHYSICAL LOSS OR DAMAGE” IN THE POLICIES REQUIRES EITHER TANGIBLE, CONCRETE, AND MATERIAL HARM TO THE INSURED PROPERTY OR DEPRIVATION OF POSSESSION OF THE INSURED PROPERTY.

Answering the certified question requires us to construe the language of insurance

policies, which we do “according to contract principles,” Md. Cas. Co. v. Blackstone Int’l

11 Ltd., 442 Md. 685, 694 (2015), “under the objective theory of contract interpretation,”

Plank v. Cherneski, 469 Md. 548, 617 (2020). Under that approach, unless the language

of the contract is ambiguous, we interpret it “based on what a reasonable person in the

position of the parties would have understood the language to mean and not ‘the subjective

intent of the parties at the time of formation.’” Credible Behav. Health, Inc. v. Johnson,

466 Md. 380, 393 (2019) (quoting Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 86 (2010));

see also JMP Assocs., Inc. v. St. Paul Fire & Marine Ins. Co., 345 Md. 630, 635 (1997)

(“The test is what meaning a reasonably prudent layperson would attach to the term.”

(quoting Bailer v. Erie Ins. Exch., 344 Md. 515, 521-22 (1997))). “Thus, ‘the written

language embodying the terms of an agreement will govern the rights and liabilities of the

parties, irrespective of the intent of the parties at the time they entered into the contract.’”

Md. Cas. Co., 442 Md. at 695 (quoting Long v. State, 371 Md. 72, 84 (2002)).

“[A] court interpreting an insurance policy is to examine the instrument as a whole,

focusing on the character, purpose, and circumstances surrounding the execution of the

contract.” Bailer, 344 Md. at 521; see also Plank, 469 Md. at 617 (“In interpreting a

contract provision, we look to the entire language of the agreement, not merely a portion

thereof.” (quoting Nova Rsch., Inc. v. Penske Truck Leasing Co., 405 Md. 435, 448

(2008))). If language in an insurance policy is ambiguous when interpreted according to

the principles of contract interpretation set forth above, “we construe that language

‘liberally in favor of the insured and against the insurer as drafter of the instrument.’”

Connors v. Gov’t Emps. Ins. Co., 442 Md. 466, 483 (2015) (quoting Megonnell v. United

Servs. Auto. Ass’n, 368 Md. 633, 655 (2002)). A contract “is ambiguous if, ‘when viewed

12 from [a] reasonable person perspective, that language is susceptible to more than one

meaning.’” Plank, 469 Md. at 617 (quoting Ocean Petroleum, 416 Md. at 87). However,

merely because “a term cannot be precisely defined so as to make clear its application in

all varying factual situations does not mean that it is ambiguous.” Allstate Ins. Co. v.

Humphrey, 246 Md. 492, 496 (1967).

We begin our analysis by focusing on the ordinary meaning of the terms contained

in the key phrase on which the answer to the certified question hinges: “physical loss or

damage.” We will then expand our focus to the interpretation of that phrase in the broader

context of the Policies as a whole. From those sources, we will derive and apply an

interpretation of “physical loss or damage” to the allegations of the Complaint. Finally,

we will turn to a review of caselaw from courts interpreting Maryland law and around the

country, which we will conclude is overwhelmingly consistent with our own interpretation

of “physical loss or damage” and our answer to the certified question.

A. Ordinary Meaning

“Traditionally, to supply contractual language with its ‘ordinary and accepted

meanings[,]’ this Court consults the dictionary definition of such terms.” Credible Behav.

Health, 466 Md. at 394-95 (quoting Pac. Indem. Co. v. Interstate Fire & Cas. Co., 302

Md. 383, 388 (1985)). The Court looks to dictionary definitions “to identify the common

and popular understanding of the words used in the contract as evidence of what a

reasonable person in the position of the parties would have understood those terms to

mean.” W.F. Gebhardt & Co. v. Am. Eur. Ins. Co., 250 Md. App. 652, 668 (2021). While

dictionaries are useful tools, “simply because [a party] can point to several slightly different

13 dictionary definitions of [a word] does not render that term ambiguous.” Rigby v. Allstate

Indem., 225 Md. App. 98, 110 (2015).

We begin with the modifier “physical,” which the New Oxford American Dictionary

defines, as relevant here, as “of or relating to things perceived through the senses as

opposed to the mind; tangible or concrete.” Physical, New Oxford American Dictionary

1321 (3d ed. 2010); see also 11 Oxford English Dictionary 744 (2d ed. 1989) (“[o]f or

pertaining to material nature”; and “pertaining to or connected with matter; material;

opposed to psychical, mental, spiritual”). Merriam-Webster defines physical as “having

material existence,” “perceptible esp[ecially] through the senses and subject to the laws of

nature,” and “of or relating to material things.” Physical, Merriam-Webster’s Collegiate

Dictionary 935 (11th ed. 2014). And Black’s Law Dictionary similarly defines physical,

as relevant here, as “[o]f, relating to, or involving material things; pertaining to real,

tangible objects.” Physical, Black’s Law Dictionary 1386 (11th ed. 2019). Physical thus

refers generally to tangible, concrete things that have a material existence and can be

perceived by the senses.9

Loss, as relevant here, is defined by the New Oxford American Dictionary as “the

fact or process of losing something or someone,” Loss, New Oxford American Dictionary

1033 (3d ed. 2010), and by the Oxford English Dictionary as “[t]he being deprived of, or

9 Accord, e.g., Uncork & Create LLC v. Cincinnati Ins. Co., 27 F.4th 926, 932 (4th Cir. 2022) (“[T]he word ‘physical’ means ‘relating to natural or material things[.]’”); Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 22 F.4th 450, 455-56 (5th Cir. 2022) (“‘[P]hysical’ means ‘of, relating to, or involving material things; pertaining to real, tangible objects.’” (quoting U.S. Metals, Inc. v. Liberty Mut. Grp., Inc., 490 S.W.3d 20, 24 (Tex. 2015) (in turn quoting Black’s Law Dictionary 1331 (10th ed. 2014)))).

14 the failure to keep (a possession, appurtenance, right, quality, faculty, or the like),” Loss, 9

Oxford English Dictionary 37 (2d ed. 1989). Merriam-Webster defines loss in relevant

part as “destruction, ruin,” “the act of losing possession,” and “a person or thing or an

amount that is lost.” Loss, Merriam-Webster’s Collegiate Dictionary 736 (11th ed. 2014).

And Black’s Law Dictionary defines the term, again as relevant here, as “[t]he failure to

maintain possession of a thing.”10 Loss, Black’s Law Dictionary 1132 (11th ed. 2019).

The New Oxford American Dictionary defines damage, as relevant here, as “physical harm

caused to something in such a way as to impair its value, usefulness, or normal function.”

Damage, New Oxford American Dictionary 436 (3d ed. 2010); see also 4 Oxford English

Dictionary 224 (2d ed. 1989) (“Injury, harm; esp[ecially] physical injury to a thing, such

as impairs its value or usefulness.”). Similarly, Merriam-Webster defines damage as “loss

or harm resulting from injury to person, property, or reputation.” Damage, Merriam-

Webster’s Collegiate Dictionary 314 (11th ed. 2014).11 In this context, loss thus refers

generally to being deprived of possession of something, whether by its disappearance or

destruction; whereas damage refers to harm suffered.12

10 Black’s Law Dictionary and Merriam-Webster’s each also contain definitions specific to insurance that, in this context, would be circular. See Loss, Merriam-Webster’s Collegiate Dictionary 736 (11th ed. 2014) (“the amount of an insured’s financial detriment by death or damage that the insurer is liable for”); Loss, Black’s Law Dictionary 1132 (11th ed. 2019) (“[t]he amount of financial detriment caused by an insured person’s death or an insured property’s damage, for which the insurer becomes liable”). 11 Black’s Law Dictionary defines “damage” related to the concept of monetary compensation for loss or injury, which is not applicable here. Damage, Black’s Law Dictionary 488 (11th ed. 2019). 12 Accord, e.g., Uncork & Create, 27 F.4th at 932 (“[T]he word ‘damage’ in this context means an ‘injury or harm . . . to property.’” (quoting Webster’s Third New Int’l 15 From their dictionary definitions, we thus glean that “physical loss or damage” to

covered property must involve tangible, concrete, and material harm to the property or a

deprivation of possession of the property.13 That conclusion supports FM’s position that

“physical loss or damage” requires “tangible, physical changes to insured property.”

Tapestry argues that the plain meaning of “physical loss or damage” also embraces,

in addition to a loss of possession of property, “a functional loss of use of property due to

the presence of an external force[.]”14 In doing so, however, Tapestry fails to engage with

the common meanings of the relevant terms. Instead, Tapestry merely states its preferred

interpretation, claims that “[d]ictionary definitions of the relevant terms . . . demonstrate

Dictionary 571 (2002))); Estes v. Cincinnati Ins. Co., 23 F.4th 695, 700 (6th Cir. 2022) (“[T]he word ‘loss’ means ‘destruction’ or ‘deprivation’ (that is, ‘the act of losing possession’).” (quoting Merriam-Webster’s Collegiate Dictionary 736 (11th ed. 2014))); Santo’s Italian Café LLC v. Acuity Ins. Co., 15 F.4th 398, 402 (6th Cir. 2021) (defining “loss” as “[p]erdition, ruin, destruction; the condition or fact of being ‘lost,’ destroyed, or ruined, or ‘being deprived of’” (quoting Oxford English Dictionary Online (3d ed. 2021))); Indiana Repertory Theatre v. Cincinnati Cas. Co., 180 N.E.3d 403, 408 (Ind. Ct. App. 2022) (‘“Damage’ is ‘loss due to injury: injury or harm to person, property, or reputation: hurt, harm.’” (quoting Webster's Third Int’l Dictionary 571 (Unabridged ed. 1966))). 13 Accord, e.g., Uncork & Create, 27 F.4th at 932 (“Thus, with reference to a defined premises, the plain understanding of the terms ‘physical loss’ or ‘physical damage’ is material destruction or material harm.”); Estes, 23 F.4th at 700 (“Putting these definitions together, a covered source itself must destroy covered property or deprive the property’s owner of possession.”). 14 Tapestry emphasizes that the Policies’ use of both “loss” and “damage” necessarily implies that they must have different meanings and, therefore, cannot both require physical damage to property. As discussed, we agree that loss and damage, as used in the phrase “physical loss or damage,” embrace different, although partially overlapping, concepts. For example, a loss may be occasioned by the “destruction” or “ruin” of property, which also constitutes damage, but may also be occasioned by theft, removal, disappearance, or other acts that would not necessarily involve physical damage. But we do not see how that advances Tapestry’s claim that a “physical loss” extends to a temporary loss of functional use of property.

16 this,” and then drops a footnote providing a single definition for each of the three terms.

The definitions, all from the Oxford English Dictionary and none offering apparent support

for Tapestry’s proposed expansion to “functional loss of use,” are unaccompanied by any

analysis or further exposition.

Looking only to the ordinary meaning of the terms in isolation, we would be

skeptical of Tapestry’s unexplained contention that “physical loss” can embrace a

“functional loss of use” for the simple reason that losing a thing is conceptually different

than losing the functional use of that thing for a period of time. Accord Santo’s Italian

Café, 15 F.4th at 402 (“A loss of use simply is not the same as a physical loss.”). Although

the complete destruction or ruin of property can, indeed, constitute a loss of that property,

by permanently depriving the owner of any value in it, the temporary loss of functional use

of the same thing is different. See, e.g., Terry Black’s Barbecue, 22 F.4th at 456 (rejecting

the contention that a loss of use of property could constitute “direct physical loss” because

the relevant policy provision “unambiguously requires a loss of property, not the loss of

use of property”). In other words, Tapestry’s proposed addition of the words “functional”

and “of use” to arrive at its preferred interpretation of “loss” transforms the concept and

gives it a different meaning than that contained in the language of the Policies.

B. Context

Expanding our analysis to the context provided by other provisions of the Policies

demonstrates the validity of our initial skepticism of Tapestry’s proposed, expansive

definition of “physical loss or damage.” Several aspects of the Policies confirm our

interpretation of that phrase as not encompassing a functional loss of use of the property.

17 First, the declarations pages of the Policies state that they cover “property . . . against

ALL RISKS OF PHYSICAL LOSS OR DAMAGE” not excluded. In the context of

property damage coverage, “physical loss or damage” thus “characterizes what effects the

covered causes must have on the property to trigger coverage, not the causes themselves.”

Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266, 1273 (Mass. 2022) (addressing

coverage triggered by “direct physical loss of or damage to Covered Property”). The Time

Element coverage section then provides coverage for losses incurred by an insured business

“directly resulting from physical loss or damage of the type insured.” To be covered,

therefore, Time Element loss must be the result of “physical loss or damage” that, in turn,

results from a covered (i.e., in an “all risks” policy, not excluded) cause. If “functional loss

of use” could itself constitute “physical loss or damage,” as Tapestry contends, then the

Time Element coverage would, in circular effect, provide coverage for losses suffered due

to the inability to use property (losses suffered during the period of liability) resulting from

the inability to use that property (the functional loss of use of the property). Tapestry’s

interpretation is at odds with the very structure of the Policies.15 See GPL Enter. LLC v.

Certain Underwriters at Lloyd’s, 254 Md. App. 638, 659 (2022) (explaining that an insured

failed to explain how a Governor’s order prohibiting certain types of operations could

15 As the Massachusetts Supreme Judicial Court explained in Verveine Corp., the fact that policy language like “physical loss or damage” describes both the effect required to trigger property damage coverage and the cause of loss for purposes of time element coverage does not undermine the requirement that the insured’s property first suffer the effect of “physical loss or damage” to trigger coverage under the policy in the first place. 184 N.E.3d at 1274; see also Santo’s Italian Café, 15 F.4th at 402 (identifying “[t]he imperative of a ‘direct physical loss’ or ‘direct physical damage’” as “the North Star of this property insurance policy from start to finish”).

18 constitute both a “direct physical loss” under an all-risk property insurance policy and the

interruption of business resulting from such a loss).

Second, under the Time Element coverage, the Period of Liability for damage to

building and equipment extends from “the time of physical loss or damage of the type

insured” to the time when “the building and equipment could be [] repaired or replaced;

and [] made ready for operations.” Those concepts make sense under our interpretation of

“physical loss”—subject to remedy by replacement—and “physical . . . damage”—subject

to remedy by repair or replacement.16 They do not make sense under Tapestry’s definition

in that a temporary, functional loss of use of property, without more, is remedied by

regaining functional use of the property, not by repair or replacement.17 Accord Terry

Black’s Barbecue, 22 F.4th at 456 (“This period [of liability] necessarily contemplates a

tangible alteration to the property that requires repair, rebuilding, or replacement.”);

Cordish Cos., 573 F. Supp. 3d at 998-99 (“The idea that the property may be ‘repaired or

16 As stated in the Certification Order, “Tapestry asserts that it repaired and remediated its physical space, such as through the removal and disposal of porous materials like clothing, reconfiguring and altering interior spaces of property, and installing physical barriers to create physical distancing.” However, the measures Tapestry describes are the disposal of merchandise and functional changes to the layout of its stores to increase social distancing, not the repair or remediation of damaged or lost property. 17 The inconsistency of Tapestry’s interpretation with the Period of Liability provision of the Policies is especially stark in connection with a communicable disease, such as COVID-19, in which a functional loss of use of property could potentially be wholly restored by the development of an effective vaccine or advent of so-called “herd immunity,” see Leon Gordis, Epidemiology 26 (5th ed. 2014) (defining “herd immunity” as “the resistance of a group of people to an attack by a disease to which a large proportion of the members of the group are immune”), with no change of any kind to the property itself. 19 replaced’ is consistent with the view that the damage contemplated by the Policy must be

physical in nature.”).

Third, the Policy contains an additional Time Element coverage extension for

Interruption by Communicable Disease, which applies when the presence of a

communicable disease results in a government-ordered or insured-directed restriction on

access to an insured location. Notably, the Interruption by Communicable Disease

coverage extension, unlike the primary Time Element coverage, does not require “physical

loss or damage” to covered property and, therefore, is triggered by the restriction on access

itself. The juxtaposition of that coverage extension, which specifically contemplates the

operation and effects of a communicable disease like COVID-19 on business operations

without requiring a trigger of “physical loss or damage,” against the different requirements

of the primary Time Element coverage grant, undermines Tapestry’s claim to coverage

under the latter.18

18 Tapestry argues that the Interruption by Communicable Disease additional coverage extension supports its position, pointing to an exclusion contained within that extension stating that “This Policy does not insure loss resulting from . . . loss or damage caused by or resulting from terrorism[.]” Tapestry argues that that exclusion constitutes an acknowledgment that communicable diseases can cause loss or damage to property. That provision cannot bear the weight Tapestry gives it because, among other reasons: (1) the reference to “loss or damage” does not contain the modifier “physical”; (2) the exclusion may be a shorthand restatement of the broadly worded exclusion appearing earlier in the Policies of “loss or damage directly or indirectly caused by or resulting from . . . terrorism,” not a separate exclusion tailored to that coverage extension; and (3) nothing about our analysis precludes the possibility that a communicable disease could cause “physical loss or damage” to property, depending on how the particular disease actually operates (or, for purposes of a motion to dismiss, is alleged to operate). Tapestry makes one other argument tied to the existence of the related Communicable Disease Response and Interruption by Communicable Disease coverage extensions. Observing that the general Time Element coverage grant applies to “TIME 20 By contrast, we find no other provisions of the Policies that support Tapestry’s

interpretation of “physical loss or damage” as extending to a temporary, functional loss of

use of the property.19 Considering that phrase in the context of the Policies as a whole thus

confirms our conclusion that that policy language is unambiguous and that a “reasonable

person in the position of the parties,” Credible Behav. Health, 466 Md. at 393, would

understand “physical loss or damage” to property, as used in the Policies, to require

tangible, concrete, and material harm to the property or a deprivation of possession of the

property.

Tapestry further contends that we should take into consideration that at the time FM

wrote the Policies, more than 80% of property insurance policies included a broad,

ISO-drafted20 virus exclusion that FM did not incorporate into its policies. FM responds

that the Contamination Exclusion in the Policies performs the same work and that the

ELEMENT loss . . . directly resulting from the physical loss or damage of the type insured” (emphasis added), Tapestry argues that because the Policies cover some losses caused by communicable diseases, those diseases constitute a risk “of the type insured” that then must come within the scope of that general coverage grant. That argument, however, ignores: (1) the link to “physical loss or damage” that precedes “of the type insured”; and (2) the absence of a requirement of “physical loss or damage” as a prerequisite to the coverages relating to communicable disease. 19 Even with respect to electronic data, the Policies require “physical loss or damage” in the form of “destruction, distortion or corruption of electronic data, programs or software” to trigger coverage, not mere loss of use. 20 The Insurance Services Office (“ISO”) is “the primary drafting organization for property insurers.” Charles M. Miller, et al., COVID-19 and Business-Income Insurance: The History of “Physical Loss” and What Insurers Intended It to Mean, 57 Tort, Trial, & Ins. Prac. L.J. __ (forthcoming 2022), archived at https://perma.cc/PV4Q-KGVF.

21 absence of an exclusion does not create coverage.21 Ultimately, we are interpreting the

Policies FM issued. We do not think the availability on the insurance market of a broader

virus exclusion undermines the unambiguous language employed in the Policies. 22 See,

e.g., Verveine Corp., 184 N.E.3d at 1277-78 (rejecting insured’s proposed “negative

implication” from the absence of an express virus exclusion in certain policies while it is

included in others).

C. Application

We understand Tapestry to make three different arguments for why the allegations

in the Complaint concerning its losses resulting from the presence of Coronavirus on its

property constitute “physical loss or damage” so as to trigger coverage under the primary

Property Damage and Time Element coverage grants in the Policies. First, Tapestry

contends that the temporary, functional loss of use of covered property itself constitutes

21 The Contamination Exclusion excludes coverage for “contamination,” which is defined to include, among other things, “any . . . pathogen or pathogenic organism, bacteria, virus, disease causing or illness causing agent[.]” As noted above, we do not offer any conclusions concerning the potential applicability of the Contamination Exclusion to Tapestry’s claim because that is not encompassed within the certified question. See Price v. Murdy, 462 Md. 145, 147 (2018) (stating that this Court “may go no further than the question certified”) (quotation omitted). It is worth noting, however, that, as set forth in the Communicable Disease Response coverage extension and the Interruption by Communicable Disease additional coverage extension, the Policies do not exclude coverage for all losses resulting from viruses. They do, however, limit those coverages by imposing a sublimit of liability of $1 million per occurrence as compared to the overall limit of liability of $1 billion per occurrence in each Policy. 22 Tapestry also argues that FM should be held to a position it articulated in a filing in litigation in federal district court in New Mexico in 2019 that is inconsistent with FM’s position here. However, FM’s litigation position in that case does not influence our interpretation of Maryland law here.

22 “physical loss or damage.” For the reasons set forth above, we have reached a different

conclusion.

Second, Tapestry argues that Coronavirus damaged the air in its covered properties,

which constitutes “physical loss or damage.” Specifically, Tapestry contends that

respiratory particles expelled by individuals infected with Coronavirus physically alter the

composition of the air and can remain airborne for indefinite periods unless removed by a

ventilation system, which may itself become a transmission vector by spreading the

infected particles through vents. Even if cleaned, removed, or dissipated, such particles

are then reintroduced into the air every time a new infected person enters the store.

As an initial matter, Tapestry has not pointed us to any reported decision that

supports its contention that damage to the air at a property is covered by a first-party

property damage policy. In the Complaint and in its briefing, Tapestry contends that

Coronavirus damages the air in the same way that ammonia does, linking its desired

outcome in this case to the outcome in Gregory Packaging, Inc. v. Travelers Property

Casualty Company, Civ. No. 2:12-cv-04418, 2014 WL 6675934 (D.N.J. Nov. 25, 2014).

However, although that unreported decision interpreting New Jersey and Georgia law did

conclude that “the ammonia release physically transformed the air” on the property at issue,

the court appears to have based its decision that the insured sustained “direct physical loss

or damage” on the insured’s functional loss of use of the facility as a result of the

contamination, not on damage to the air itself. Id. at *3-6. We are not aware of any reported

23 decisions that have treated damage to air itself, as opposed to loss or damage to property

resulting from air contamination, as property damage.23

But even assuming damage to air could otherwise trigger coverage under the

Policies, the allegations of the Complaint do not support a claim that the air in Tapestry’s

stores was “damaged” in a way that triggers coverage under the Policies. Attaching

numerous scientific articles and bulletins, the Complaint sets forth persuasive evidence

explaining how Coronavirus particles: are expelled when an infected individual breathes,

coughs, or sneezes; enter the air surrounding that individual in droplet or aerosol form; and

are then dispersed more widely into the surrounding air for, at least theoretically based on

one study, as many as 27 feet. But Tapestry has not explained—or set forth factual

allegations that would, if proven, support—how the entry of Coronavirus particles into the

air, which particles then travel among and mix with the many other kinds of particles

already traveling in the same air until they are further dispersed or ultimately deposited

onto a surface, physically damages air over which Tapestry has possessory rights.24

23 In an unreported decision that was subsequently vacated by a settlement, the United States District Court for the District of Oregon determined that wildfire smoke physically altered the air of an outdoor theater and, therefore, caused “direct physical loss of or damage to covered property” under the policy at issue. Oregon Shakespeare Festival Ass’n v. Great Am. Ins. Co., No. 1:15-CV-01932-CL, 2016 WL 3267247, at *5, *9 (D. Or. June 7, 2016), vacated by settlement, No. 1:15-CV-01932-CL, 2017 WL 1034203 (D. Or. Mar. 6, 2017). The court reasoned that the insurer had not provided “a sufficient explanation for why air is not physical.” Id. at *5. For the reasons already discussed and those discussed below, we are not persuaded. 24 Tapestry does not allege that the Coronavirus particles transformed other particles in the air by, for example, altering their physical structure. Instead, Tapestry alleges that the Coronavirus particles transformed the air itself by mixing in and traveling with those other particles.

24 Third, Tapestry contends that Coronavirus rested on and adhered to surfaces of

property at its stores, which “alter[ed] these objects to become vectors of disease.”

Tapestry alleges that when the Coronavirus-infected particles settle on a surface, that

surface becomes a “fomite” and may remain infectious for days; moreover, if the fomite is

disturbed, those particles may reenter the air and then settle on other property, creating

more fomites. Tapestry further contends that removing Coronavirus from surfaces requires

harsh chemical cleaning and the effectiveness of such cleaning is unknown because of the

toxicity and microscopic nature of the particles.

Tapestry’s allegation that Coronavirus particles “altered” objects like doorknobs

and purses into “vectors of disease” by landing on, adhering to, and being subject to

becoming dislodged from them does not satisfy the requirement of “physical loss or

damage.” Tapestry does not allege that any aspect of its property was either lost or

structurally altered by its contact with Coronavirus particles. That particles rested for some

period of time on those surfaces and later may have become dislodged and reentered

circulation in the air, thus posing a health risk to humans, simply does not constitute

damage to property in the absence of a physical or structural alteration of the property.

Like Tapestry’s allegations concerning the air in its properties, the combination of a virus’s

proximity to property and resulting risk to human health does not constitute “physical loss

or damage” to the property.

As to each of the last two points, Tapestry suggests that there are factual disputes

raised by the Complaint that should be left for a jury to decide. Tapestry and its amicus

United Policyholders contend that in light of the uncertainty surrounding what is still a

25 relatively new virus as to which the scientific evidence continues to evolve, it is improper

for courts to make rulings that essentially amount to factual findings that Coronavirus is

not capable of causing “physical loss or damage.” But we decide today neither that

Coronavirus does not, nor that it cannot, cause “physical loss or damage” as that phrase is

used in the Policies. Instead, our decision is that, assuming the truth of all the non-

conclusory factual allegations in the Complaint about how Coronavirus operates and how

it impacted Tapestry’s properties and operations, the presence of Coronavirus in the air and

on surfaces at Tapestry’s properties did not cause “physical loss or damage” as that phrase

is used in the Policies.

D. Caselaw

Our interpretation of the policy language and application of that interpretation to

Tapestry’s claim is in accord with the overwhelming majority of reported decisions

addressing Coronavirus-related insurance claims under first-party commercial property

insurance policies. We will begin by discussing reported decisions that have addressed the

issue under Maryland law and then discuss caselaw from other jurisdictions.

Applying Maryland law, the Appellate Court of Maryland (at the time named the

Court of Special Appeals of Maryland)25 and three different judges of the United States

District Court have uniformly rejected Coronavirus-related insurance claims under first-

party commercial property insurance policies on grounds consistent with our interpretation.

25 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. 26 The most recent of those decisions was our intermediate appellate court’s well-reasoned

decision in GPL Enterprise LLC v. Certain Underwriters at Lloyd’s, which addressed

many of the same arguments that Tapestry makes here. 254 Md. App. 638 (2022). In GPL

Enterprise, the insured sought coverage for an interruption of its restaurant operations

during the COVID-19 pandemic under an all-risk, first-party property insurance policy. Id.

at 645-46. Unlike here, the insured premised its insurance claim primarily on the effect of

government shutdown orders that precluded it from operating normally during the

pandemic, limiting it to carry-out services. Id. at 646. Nonetheless, the decision contains

an in-depth exploration of the meaning of the policy language “direct physical loss of or

damage to Covered Property” and the interpretations courts have given similar language.

See id. at 650-62.

The intermediate appellate court concluded in GPL Enterprise that other courts have

held “almost unanimously” “that the phrase ‘physical loss of or damage to’ property is

unambiguous and that the policies afford no coverage in circumstances such as those of

this case.” Id. at 652. The court discussed with approval the United States District Court’s

determination in Cordish Cos., 573 F. Supp. 3d at 997-98, that the modifier “physical”

unambiguously required a “material alteration to the property” and “damage [that] must

affect the good itself[.]” GPL Enter., 254 Md. App. at 652-53. Rejecting the insured’s

contention that a loss of use satisfied the requirements of the coverage grant, the court

concluded that “[a] loss of use simply is not the same as a physical loss.” Id. at 654 (quoting

Santo’s Italian Café, 15 F.4th at 402). As a result, the government shutdown order did not

trigger coverage under the policy. GPL Enter., 254 Md. App. at 654.

27 The court then concluded that, beyond the shutdown order, GPL also failed to

“allege[] facts sufficient to establish that the COVID-19 virus somehow physically altered

the structure of the restaurant so as to trigger coverage under the policy.” Id. at 654-55.

The court joined in the conclusions of other courts, based on the allegations that were

before them, that although Coronavirus causes harm to humans, “it does not physically

alter structures and therefore does not result in coverable property loss or damage.” Id. at

655 (quoting Cordish Cos., 573 F. Supp. 3d at 1000). After rejecting several other

arguments made by the insured there—and also made by Tapestry here—the court affirmed

the substance of the circuit court’s ruling in favor of the insurer. Id. at 664.

In three published decisions by different judges applying Maryland law, the United

States District Court has reached the same conclusion as our intermediate appellate court

concerning the meaning of the key policy language. In each of those decisions, the court

interpreted “physical loss or damage” or equivalent language to unambiguously require a

structural alteration of property or permanent dispossession. See Cordish Cos., 573 F.

Supp. 3d at 997 (“The inclusion of the modifier ‘physical’ in the phrase ‘physical loss or

damage’ unambiguously requires some form of material alteration to the property that has

experienced ‘loss or damage.’”); Hamilton Jewelry, LLC v. Twin City Fire Ins. Co., Inc.,

560 F. Supp. 3d 956, 967 (D. Md. 2021) (“The presence of the words ‘direct’ and ‘physical’

limit the words ‘loss’ and ‘damage’ and unambiguously require that the loss be directly

tied to a material alteration to the property itself, or an intrusion onto the insured property.”

(quoting Promotional Headwear Int’l v. Cincinnati Ins. Co., 504 F. Supp. 3d 1191,

1201-02 (D. Kan. 2020))); Bel Air Auto Auction, Inc. v. Great N. Ins. Co., 534 F. Supp. 3d

28 492, 504 (D. Md. 2021) (observing with approval that the “[n]umerous courts [to] have had

the opportunity to directly address the meaning of identical ‘direct physical loss or damage’

language . . . have overwhelming[ly] held that the phrase requires tangible, physical losses

to property, or, at the very least, permanent dispossession of the property rendered unfit or

uninhabitable by physical forces”).

In two of those cases, the courts expressly concluded that contamination by, or the

presence of Coronavirus on, an insured’s covered property does not constitute “physical

loss or damage.”26 See Cordish Cos., 573 F. Supp. 3d at 999 (“Cordish does not allege that

the properties were physically or structurally altered or rendered unusable. Contamination

qualifies as physical loss or damage only if it renders the subject property unusable or

uninhabitable.”); Bel Air Auto, 534 F. Supp. 3d at 509 (“[E]ven actual presence of the virus

would not be sufficient to trigger coverage for physical damage or physical loss to the

property[.]” (quoting Uncork & Create LLC v. Cincinnati Ins. Co., 498 F. Supp. 3d 878,

883 (S.D.W. Va. 2020))).

Other appellate courts have addressed Coronavirus-related insurance claims under

the same or similar coverage grants. The vast majority of those have come to the same

result based on largely similar reasoning. For example, in Uncork & Create LLC v.

Cincinnati Insurance Company, the United States Court of Appeals for the Fourth Circuit,

applying West Virginia law and similar interpretive principles to those we employ,

26 In the third case, Hamilton Jewelry, LLC, the court did not reach that issue because the insured, whose insurance policy included a broad virus exclusion, argued that its losses were caused not by the virus but by government closure orders. 560 F. Supp. 3d at 960. The court rejected that argument. Id. at 968.

29 concluded that “policy language requiring a ‘physical loss’ or ‘physical damage’

unambiguously covers only losses caused by, or relating to, material destruction or material

harm to the covered property.”27 27 F.4th 926, 928 (4th Cir. 2022). The insured contended

that its “inability to operate its [business] as intended” as a result of both a government

“closure order and the C[OVID]-19 virus” constituted “physical loss” under the policy. Id.

at 930. The court disagreed based both on the plain meaning of the terms and the “plain

and unambiguous” language of the policy. Id. at 932. As to the latter, the court found

especially compelling the policy’s definition of the “period of restoration,” which

established the period for which business income losses could be recovered “as the time

needed to ‘repair[ ], rebuil[d] or replace[ ]’ property or to locate a new permanent

property.” Id. The court concluded that any definition of “‘physical loss’ or ‘physical

damage’ that does not require a material alteration to the property would render

meaningless this pre-condition to coverage[.]”28 Id.

27 The policy language at issue in Uncork & Create included the additional modifiers “direct” and “accidental” before both “physical loss” and “physical damage.” 27 F.4th at 929. However, because both parties agreed that the pandemic and government closure order were “accidental” and that any loss was “direct,” for purposes of the policy, the court “focus[ed its] inquiry on the disputed policy terms ‘physical loss’ and ‘physical damage.’” Id. at 931 & n.7. 28 We reach a different conclusion than did the Fourth Circuit on one point. That court appeared to consider the terms “physical loss” and “physical damage” to be coextensive, both requiring “material destruction or material harm.” Id. at 932 & nn.8-9. In reaching that conclusion, the court dismissed as “untenable” the “alternative dictionary definition of ‘loss’ as the ‘failure to keep possession’ or ‘deprivation,’” which the court found to be inconsistent with the “need to repair, rebuild, replace, or expend time securing a new, permanent property” as a pre-condition for coverage in the definition of “period of restoration.” Id. at 932 & n.9 (quoting Webster’s Third New Int’l Dictionary 1338 (2002)). As discussed above, we do not see any inconsistency with that alternative definition of “loss” and the Policies’ definition of “period of liability,” if a “physical loss” is defined to 30 Based on that definition, and because “neither the [governmental] closure order nor

the C[OVID]-19 virus caused present or impending material destruction or material harm

that physically altered the covered property requiring repairs or replacement so that they

could be used as intended[,]” the court held that the policy did not provide business income

loss coverage for the insured’s COVID-19-related losses. Id. at 933. As a result, after

noting that its conclusion was “consistent with the unanimous decisions by our sister

circuits,” the court affirmed the trial court’s dismissal of the insured’s complaint seeking

coverage. Id. at 933-34 (citing federal circuit court cases applying the laws of Texas, New

York, Ohio, Illinois, Iowa, California, Oklahoma, and Georgia).

A sampling of other appellate decisions reaching similar interpretations of similar

policy language includes: Estes v. Cincinnati Ins. Co., 23 F.4th 695, 700 (6th Cir. 2022)

(“[A] covered source itself must destroy covered property or deprive the property’s owner

of possession.”); Terry Black’s Barbecue v. State Auto. Mut. Ins. Co., 22 F.4th 450, 456

(5th Cir. 2022) (interpreting “‘physical loss of property’ to require a tangible alteration or

deprivation of property” and, accordingly, affirming judgment for the insurer on the

pleadings); 10012 Holdings, Inc. v. Sentinel Ins. Co., Ltd., 21 F.4th 216, 220-22 (2d Cir.

include the loss of possession of the property. That is because a deprivation of possession of property, unlike a temporary deprivation of functional use of the property, would require “replace[ment]” of that property to resume normal operations. See, e.g., Estes, 23 F.4th at 701 (observing that “the phrase ‘physical loss’ . . . would cover a physical deprivation of property (such as a theft of furniture) that did not damage the property in the slightest”); Verveine Corp., 184 N.E.3d at 1276-77 (observing that “there may be a ‘loss of’ property without damage if it is stolen”). Because it is not presented here, we will leave to a future case a determination as to whether a temporary loss of possession of property would qualify as “physical loss or damage,” or whether any such loss of possession must be permanent.

31 2021) (holding that policy provisions requiring “direct physical loss or damage” or

“physical damage” “do not extend to mere loss of use of a premises, where there has been

no physical damage to such premises; those terms instead require actual physical loss of or

damage to the insured’s property”); Goodwill Indus. of Cent. Oklahoma, Inc. v.

Philadelphia Indem. Ins. Co., 21 F.4th 704, 708, 710 (10th Cir. 2021) (concluding that

coverage trigger requiring “direct physical loss of or damage to property” “unambiguously

covered only losses stemming from physical alteration or tangible dispossession of

property”); Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327, 333 (7th Cir.

2021) (“The Policy is replete with textual clues that reinforce the conclusion that ‘direct

physical loss’ requires a physical alteration to property.”); Mudpie, Inc. v. Travelers Cas.

Ins. Co. of Am., 15 F.4th 885, 892 (9th Cir. 2021) (affirming dismissal of coverage

complaint where insured did not identify either a physical alteration of the property or

permanent dispossession of the property); Santo’s Italian Café, 15 F.4th at 400, 401

(affirming ruling upholding denial of coverage because “[t]he restaurant has not been

tangibly destroyed, whether in part or in full. And the owner has not been tangibly or

concretely deprived of any of it.”); Oral Surgeons, P.C. v. Cincinnati Ins. Co., 2 F.4th

1141, 1144 (8th Cir. 2021) (interpreting similar policy language as requiring that “there

must be some physicality to the loss or damage of property—e.g., a physical alteration,

physical contamination, or physical destruction[,]” and, in the absence of such allegations,

affirming dismissal of coverage complaint); Indiana Repertory Theatre v. Cincinnati Cas.

Co., 180 N.E.3d 403, 410 (Ind. Ct. App. 2022) (finding that the insured “did not suffer

physical loss or physical damage under the language of the Policy because the premises

32 covered . . . was not destroyed or altered in a physical way that would require restoration

or relocation”); and Verveine Corp., 184 N.E.3d at 1275 (concluding, based on both plain

meaning and the policy’s definition of the “period of restoration,” that the policy term

“direct physical loss of or damage to” property requires physical alteration; and that “[t]he

allegations in the [insured’s] complaint do not support recovery under this definition”).

Tapestry argues that many of these cases are distinguishable, most prominently

because many of the insureds did not allege the actual presence of Coronavirus on their

properties or otherwise relied primarily on the effect of governmental shutdown orders,

rather than the presence of Coronavirus itself, to support their claims. As an initial matter,

although that is true of some of those cases, it is by no means true of all of them. See, e.g.,

Verveine Corp., 184 N.E.3d at 1276 (‘“Even accepting the plaintiffs’ premise that the

suspension of their business was caused by the ‘presence’ of the virus on surfaces and in

the air at the restaurants . . ., mere ‘presence’ does not amount to loss or damage to the

property.”). Moreover, even where that distinction applies, it does not undermine the

persuasiveness of the analysis contained in those decisions in interpreting the unambiguous

meaning of the key policy language. Tapestry also points out that some of the policies

construed in those other cases employed somewhat different policy language, including the

use of the modifier “direct” before “physical loss or damage” in some policies. However,

it does not appear to us that many, if any, of the other decisions turned on that distinction.

Tapestry points our attention to three relatively recent appellate decisions that have

reached a contrary conclusion. In Cajun Conti LLC v. Certain Underwriters at Lloyd’s

London, a split intermediate appellate court in Louisiana concluded that “physical loss or

33 damage,” as used in an all-risk, first-party commercial insurance policy, was susceptible to

more than one reasonable meaning and so had to be interpreted in favor of the insured.

No. 2021-CA-0343, ___ So. 3d ___, 2022 WL 2154863, at *5-6 (La. App. Ct. June 15,

2022). Two dissenting judges on the five-judge panel concluded that the policy language

unambiguously required a physical alteration to the property.29 Id., ___ So. 3d at ___

(Belsome, J., dissenting). In Marina Pacific Hotel and Suites, LLC v. Fireman’s Fund

Insurance Company, a California intermediate appellate court concluded that an insured

had sufficiently alleged physical damage to property to survive a motion to dismiss when

it alleged that Coronavirus particles “not only live[] on surfaces but also bond[] to surfaces

through physicochemical reactions involving cells and surface proteins, which transform

the physical condition of the property.” 81 Cal. App. 5th 96, 108-09 (2022). And in

Huntington Ingalls Industries, Inc. v. ACE American Insurance Company, a split Supreme

Court of Vermont held that although “direct physical damage” “requires a distinct,

demonstrable, physical change to property,” the insured’s allegations that Coronavirus

“can ‘adhere’ to surfaces, transforming the surface into a fomite,” were sufficient to “allege

29 Other courts applying Louisiana law, including at least one of that state’s other intermediate appellate courts, have reached a different conclusion than the Cajun Conti majority. See Q Clothier New Orleans, L.L.C. v. Twin City Fire Ins. Co., 29 F.4th 252, 257-58 (5th Cir. 2022) (Although the “Louisiana Supreme Court has not opined on this language,” the court concluded that “[it] would interpret ‘direct physical loss of or damage to property’ to cover only tangible alterations of, injuries to, and deprivations of property.”); Port Cargo Servs., LLC v. Westchester Surplus Lines Ins. Co., No. CV 22-1018, 2022 WL 3576759, at *6 (E.D. La. Aug. 19, 2022), appeal filed, Port Cargo Servs. v. Westchester Surplus Lines Ins., No. 22-30594, 5th Cir., 2022 WL 3576759 (“Cajun Conti does not change our view of how the Louisiana Supreme Court would rule on the issue”).

34 that the virus physically altered property” under Vermont’s “‘extremely liberal’ notice-

pleading standards.” No. 2021-173, 287 A.3d 515, 2022 WL 4396475, at *11-12 (Vt. Sept.

23, 2022). Two dissenting justices, based on a review of the policy’s provisions and the

insured’s allegations, concluded, “[a]s a matter of law, [that] human-generated droplets

containing [Coronavirus] cannot cause ‘direct physical loss or damage to property’ under

this insurance policy.” Id. at *14 (Carroll, J., dissenting).

Setting aside differences in the underlying policies and allegations at issue in those

three cases,30 we are ultimately persuaded more by the majority of other appellate

decisions, which adhere more closely to our own caselaw in examining and construing the

plain language of the relevant policy provisions in the context of the policy as a whole.

Tapestry also relies on a number of decisions, many unreported, from other

jurisdictions involving other hazardous substances, such as ammonia, asbestos, gaseous

fumes, smoke, and cat urine. Some of those cases are distinguishable on one or more

30 Two differences between the case before us and Marina Pacific Hotel & Suites appear to have played a significant role in the California court’s decision. First, the allegations of the insured appeared to go beyond those made by Tapestry in alleging a physical alteration of the property through “physicochemical reactions involving cells and surface proteins.” 81 Cal. App. 5th at 108. It is unclear to us whether those alleged reactions went beyond simply adhering to a surface, but the court seemed to treat them that way. See id. at 110. Second, the interruption by communicable disease coverage in the policy at issue provided coverage if a suspension of business was “due to direct physical loss or damage to property . . . caused by or resulting from a covered communicable disease event,” which the court interpreted as establishing that the policy itself contemplated that communicable diseases could cause direct “physical loss or damage.” Id. at 100. As discussed above, the Interruption by Communicable Disease coverage extension in the Policies does not require “physical loss or damage” and we do not rule out that a communicable disease could cause “physical loss or damage” to property. We reach no conclusion concerning how those factors might have affected our analysis if they were involved here.

35 grounds, including that: (1) some involved the physical alteration of property;31 (2) others

involved hazards that rendered the property “practically useless for anything,” Santo’s

Italian Café, 15 F.4th at 405, as opposed to just for the insured’s intended purpose;32 or

(3) contained different policy language, see TRAVCO Ins. Co. v. Ward, 715 F. Supp. 2d

699, 709 (E.D. Va. 2010) (noting that the “Policy . . . define[d] ‘Property Damage’ to

include ‘loss of use of tangible property’”), aff’d, 504 F. App’x 251 (4th Cir. 2013). Those

features do not distinguish all the cases.33 However, to the extent they are not materially

31 See Nat’l Ink & Stitch, LLC v. State Auto Prop. & Cas. Co., 435 F. Supp. 3d 679, 680-81 (D. Md. 2020) (finding “direct physical loss” where a computer needed to be replaced because of damage sustained in a ransomware attack); Mellin v. N. Sec. Ins. Co., 115 A.3d 799, 805 (N.H. 2015) (in connection with a claim arising from saturation of property with cat urine, interpreting “physical loss” to require “a distinct and demonstrable alteration of the insured property,” but concluding that alteration of a property’s smell by the pervasive odor of cat urine qualified); Farmers Ins. Co. v. Trutanich, 858 P.2d 1332, 1334-35 (Or. Ct. App. 1993) (concluding that the pervasive odor of methamphetamine in a house caused “physical damage” to the house). 32 See Gregory Packaging, Inc. v. Travelers Prop. Cas. Co., Civ. No. 2:12-cv- 04418, 2014 WL 6675934, *3-4 (D.N.J. Nov. 25, 2014) (concluding that ammonia discharge in facility resulted in “direct physical loss” under insurance policy because it “rendered [the insured’s] facility physically unfit for normal human occupancy and continued use until the ammonia was sufficiently dissipated”); TRAVCO Ins. Co. v. Ward, 715 F. Supp. 2d 699, 709 (E.D. Va. 2010) (concluding that emission of sulfuric gas into a residence from defective drywall constituted “direct physical loss” because it rendered the property entirely unusable), aff’d, 504 F. App’x 251 (4th Cir. 2013); In re Chinese Manufactured Drywall Prods. Liab. Litig., 759 F. Supp. 2d 822 (E.D. La. 2010) (same); W. Fire Ins. Co. v. First Presbyterian Church, 437 P.2d 52, 54-55 (Colo. 1968) (concluding that an insured suffered “direct physical loss” when gasoline infiltrated “the soil under and around the building,” and then “gasoline and vapors thereof infiltrated and contaminated the foundation and halls and rooms of the . . . building, making the same uninhabitable and making the use of the building dangerous”); Bd. of Educ. v. Int’l Ins. Co., 720 N.E.2d 622, 624 (Ill. App. Ct. 1999) (determining that the release of asbestos fibers on property constituted “physical loss or damage” to property). See, e.g., Oregon Shakespeare Festival Ass’n v. Great Am. Ins., No. 1:15-CV- 33

01932-CL, 2016 WL 3267247, at *9 (D. Or. June 7, 2016) (concluding that smoke, soot, 36 distinguishable, we find the analyses in those cases unpersuasive, at least as applied to the

Policies and the allegations of the Complaint, for the reasons already discussed.

Finally, Tapestry also claims support from this Court’s recent decision in Berry v.

Queen, 469 Md. 674 (2020). In Berry, the Court confronted “whether the phrase ‘damage

to property’ . . . in the uninsured motorist statute[] requires an insurer to reimburse loss of

use damages, such as rental car costs, to an insured.” Id. at 679. We held that it did. Id.

at 685. Notably, however, the question was raised in the context of unquestioned physical

damage to an automobile that required repair. Id. at 683. As the United States District

Court correctly observed, Berry does not stand for the proposition “that a policyholder

could make an uninsured motorist claim for rental car coverage every time it suffered a

‘loss of use’ of a vehicle untethered to physical damage to that vehicle.” Bel Air Auto, 534

F. Supp. 3d at 504.

CONCLUSION34

The certified question posed to this Court, as we have reformulated it, is:

and ash in the air of a partially outdoor theater from a nearby wildfire constituted “direct physical loss of or damage to covered property” when theater had to postpone performances), vacated by settlement, No. 1:15-CV-01932-CL, 2017 WL 1034203 (D. Or. Mar. 6, 2017); Matzner v. Seaco Ins. Co., No. CIV. A. 96-0498-B, 1998 WL 566658, at *3 (Mass. Super. Ct. Aug. 12, 1998) (in addressing a claim arising from carbon-monoxide contamination in an apartment building, concluding that the phrase “direct physical loss or damage” is ambiguous and could include “a wider array of losses” beyond “tangible damage to the structure of insured property”). 34 The Court wishes to acknowledge the very helpful amicus submissions provided in this case by the American Property Casualty Insurance Association and National Association of Mutual Insurance; Amphenol Corporation and Amphenol (Maryland), Inc.; Bel Air Auto Auction, Inc.; Cinemark Holdings, Inc.; The Cordish Companies, Inc.; MedChi, The Maryland State Medical Society; and United Policyholders. 37 When a first-party, all-risk property insurance policy covers “all risks of physical loss or damage” to insured property from any cause unless excluded, is coverage triggered when a toxic, noxious, or hazardous substance—such as Coronavirus or COVID-19—is physically present in the indoor air of that property; is also present on, adheres to, and can later be dislodged from physical items on the property; and causes a loss, either in whole or in part, of the functional use of the property?

For the reasons set forth in this opinion, our answer is: No, provided the substance causes

neither tangible, concrete, and material harm to the property nor deprivation of possession

of the property.

CERTIFIED QUESTION OF LAW ANSWERED AS SET FORTH ABOVE. COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.