Mena Catering v. Scottsdale Ins. Co.

Opinion

ORDER

THIS CAUSE is before the Court upon Defendant's Motion to Dismiss, ECF No. [11] ("Motion"). Plaintiff filed a response in opposition, ECF No. [17] ("Response"), to which Defendant filed a reply, ECF No. [24] ("Reply"). Defendant also filed a Notice of Filing Supplemental Authority in Support of its Motion, ECF No. [25]. The Court has considered the Motion, all supporting and opposing submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted.

I. BACKGROUND

This matter stems from a lawsuit Plaintiff Mena Catering, Inc. initiated in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida against Defendant Scottsdale Insurance Company on June 24, 2020. ECF No. [11-1] ("Complaint"). Defendant removed this lawsuit to this [*2]  Court on September 2, 2020, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF No. .

According to the Complaint, Plaintiff is the owner and operator of a food catering company in Miami, Florida. ECF No. [1-1] at ¶ 1. Plaintiff entered into a surplus line commercial property insurance contract with Defendant to protect its business under a policy bearing Policy No. CPS3169238 ("Policy"),¹ effective May 25, 2019. Id. at ¶¶ 10-11. Plaintiff alleges that "[a]s a result of Florida's efforts to slow the spread of the SARS-CoV-2 global pandemic ["COVID-19"]" and government executive orders, Plaintiff "was forced to cease its regular business operations and sustain business interruption losses." Id. at ¶ 1. Specifically, in March 2020, state and county authorities in response to national and statewide public health emergencies "prohibited the use and occupancy of non-essential businesses, thereby affecting and preventing access to the Insured Property," and "[b]ased upon the closure of nearby non-essential businesses and the cessation of gatherings larger than ten people," Plaintiff was "forced by civil authorities to suspend business operations at the Insured Property." Id. at ¶¶ 22-24.² Plaintiff alleges that the [*3]  "shutdown of non-essential business was the direct, proximate cause of significant losses and of [Plaintiff] incurring significant expense[.]" Id. at ¶ 24.

Plaintiff contends that it experienced a covered loss under the Policy's Business Interruption, Civil Authority, Extended Business Income, and Extra Expense coverages. Id. at ¶¶ 18, 21. In particular, Plaintiff alleges that its insured property was "damaged in that the sudden closure of nearby businesses and group gatherings resulted in the cancellation of numerous events for which [Plaintiff's] services has already been booked," resulting in spoilage of perishable food. Id. at ¶ 27. It adds that "more likely than not" but "cannot be known for certain," coronavirus has had a "continuous presence" "on or around [Plaintiff's] premises" and "upon information, rendered the premises contaminated, unsafe and unfit for its intended use and therefore caused physical property damage or loss under the policies." Id. at ¶ 29. According to Plaintiff, the "presence of coronavirus has caused a distinct alteration of the Insured Property which cannot be repaired through a one-time disinfection, and thus has some permanency." Id. Plaintiff submitted [*4]  a claim for business interruption loss, but Defendant denied Plaintiff's claim on April 23, 2020 because the loss at issue did not come within the coverage grants of the Policy and separately was excluded by the Policy's virus and bacteria exclusion. Id. at ¶¶ 1, 19; ECF No. [11-2] at 94-100. The Complaint asserts two counts: declaratory relief (Count I) and breach of contract (Count II). ECF No. [11-1] at ¶¶ 43-60.

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