ICE HOUSE PUB, INC.

v.

WESTCHESTER SURPLUS LINES INSURANCE COMPANY

Defendant. /

ORDER1

Before the Court is Defendant Westchester Surplus Lines Insurance Company’s Motion for Judgment on the Pleadings (Doc. 15). Plaintiff Ice House Pub, Inc. responded in opposition (Doc. 22), to which Westchester replied (Doc. 25). The Motion is granted.

BACKGROUND

This is a COVID-19 insurance case. Ice House runs a pub, which Westchester insured under a commercial property policy (“Policy”). The Policy provides three relevant types of coverage: (1) building and personal property;

LEGAL STANDARD

Sitting in diversity, the Court applies Florida substantive and federal procedural law. Global Quest, LLC v. Horizon Yachts, Inc., 849 F. 3d 1022,

1027 (11th Cir. 2017). After the pleadings close, a party may move for judgment. Fed. R. Civ. P. 12(c). This relief “is appropriate when no material facts are in dispute and the movant is entitled to judgment as a matter of law.” Washington v. Rivera, 939 F. 3d 1239, 1242 (11th Cir. 2019). To decide these motions, courts “accept as true all material facts alleged in the non-moving party’s pleadings” and “view those facts in the light most favorable to the nonmoving party.” Perez v. Wells Fargo N.A., 774 F. 3d 1329, 1335 (11th Cir. 2014). If a disputed material fact exists, judgment on the pleadings is misplaced. Id.

Policy (attached to the Motion) is both central to the claim and undisputed. (Doc. 15-1). So the Court considers it.

DISCUSSION

Pointing to Policy language, Westchester contends COVID-19 was not a covered loss. Each coverage provision demands “direct physical loss of or damage to Covered Property.” (Doc. 15-1 at 32, 48, 62). So as the argument goes, without some physical loss or damage, there isn’t coverage. At bottom, Ice House counters physical damage is no sine qua non for coverage. It says the Policy’s plain language contemplates coverage for losing business even without physical loss of property. Or the words are at least ambiguous. An insurance policy is a contract. Hegel v. First Liberty Ins., 778 F. 3d 1214, 1219 (11th Cir. 2015). Like other contracts, Florida courts construe policies “according to their plain meaning.” Taurus Holdings, Inc. v. U.S. Fid. and Guar. Co., 913 So. 2d 528, 532 (Fla. 2005). When “a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Garcia v. Fed. Ins.,

969 So. 2d 288, 291 (Fla. 2007) (citation omitted). Courts aren’t free to “rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins., 133 So. 3d 494, 497 (Fla. 2014) (citation omitted).

Earlier in the pandemic, Ice House’s claims were novel. By now, however, many courts across the country tested this theory. To be sure, Ice House points to a few opinions from faraway places that might support its position. Yet Ice House does not address the legion of cases from this District rejecting its exact coverage thesis. E.g., MCML Holding Co. v. Colony Ins., No. 8:20-cv-2016-MSS-CPT, 2021 WL 2766870 (M.D. Fla. May 12, 2021) (“Therefore, to recover losses caused by ‘direct physical loss of’ of the insured’s property, the insured must allege actual physical damage to the premises itself.”); R.T.G. Furniture Corp. v. Hallmark Specialty Ins., No. 8:20-cv-2323- T-30AEP, 2021 WL 686864, at *3 (M.D. Fla. Jan. 22, 2021) (“The Court concludes that, even assuming coronavirus was physically present on [insured’s] property, it is not tantamount to a ‘direct physical loss of or damage to property.’”).³ That doesn’t even consider Northern and Southern District cases, which could span another page. E.g., Raymond H Nahmad DDS PA v. Hartford Cas. Ins., 499 F. Supp. 3d 1178 (S.D. Fla. 2020); Webb Dental Assocs.

GRANTED.

2. This action is DISMISSED with prejudice.

3. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. DONE and ORDERED in Fort Myers, Florida on July 26, 2021.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record