Party Notice: WESTPORT CAPITAL PARTNERS LLC v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY

On October 07, 2021 a Party Notice was filed involving a dispute between Westport Capital Partners Llc, and American Guarantee And Liability Insurance Company, for C20 - Contracts - Insurance Policy in the District Court of Hartford County.

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DOCKET NO.: X03-HHD-CV21-6150009-S )
)
WESTPORT CAPITAL PARTNERS LLC )
) SUPERIOR COURT
Plaintiff, )
) COMPLEX LITIGATION DOCKET
v. ) AT HARTFORD
)
AMERICAN GUARANTEE AND )
LIABILITY INSURANCE COMPANY ) May 13, 2022
)
Defendant. )

NOTICE OF SUPPLEMENTAL AUTHORITY

Defendant American Guarantee and Liability Insurance Company (“AGLIC”) hereby

advises the Court and counsel that they will rely upon the additional relevant decisions issued since

AGLIC filed its Reply Memorandum of Law in Support of its Motion to Strike the Amended

Complaint. The decisions are from the federal court for the District of Connecticut, applying

Connecticut law, and from various state and federal appellate courts across the country that

continue to unanimously affirm dismissals of claims like those of Westport Capital. AGLIC

respectfully submits that the Court consider the following decisions, including decisions that

address and dismiss claims wherein policyholders plead in detail that the presence of the virus on

their covered property caused direct physical loss or damage, and/or dismiss claims due to the

applicability of unambiguous virus exclusions.

1. ITT Inc. v. Factory Mut. Ins. Co., No. 3:21CV00156(SALM), 2022 WL 1471245 (D. Conn.

May 10, 2022) The court granted Defendant’s motion to dismiss plaintiff’s claims for time

element, civil authority, ingress/egress, logistics extra cost and claims preparation costs

coverages and rejected allegations that the presence of the virus “physically harmed,

changed, or altered the content of the air and the character of the surfaces of its property”
along with claims that the air and the surfaces of indoor work environments, items and

surfaces, can be damaged by the presence of people with COVID-19. The court explained

that the mere fact that plaintiff was deprived of its full and desired use of its properties does

not mean that there was an actual loss of property, as the property was unharmed, and

remained in the same physical condition it was in prior to the pandemic or presence of the

virus. While not addressing the policy’s Contamination Exclusion, the court also noted

significant authority suggesting that plaintiff’s claims for coverage would be barred on this

independent basis, under similar and identical virus exclusions to the Contamination

Exclusion in policy AGLIC issued to Westport. (attached as Exhibit 1).

2. Commodore, Inc., v. Certain Underwriters at Lloyd’s London, No. 3D21-0671, 2022 WL

1481776 (Fla. Dist. Ct. App. May 11, 2022). The court affirmed the dismissal of plaintiff’s

claims for business income and extra expense coverage, agreeing with the trial court that

the economic losses plaintiff suffered due to suspended operations as a result of the

COVID-19 pandemic and resultant closure orders do not trigger coverage, because the

phrase ”direct physical loss of or damage to property” requires some tangible alteration to

insured property and not a mere loss of use. (attached as Exhibit 2).

3. SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, --- F.4th ---- 2022 WL

1421414 (11th Cir. May 5, 2022) The court affirmed the dismissal of plaintiffs’ claims in

part, finding that even at the motion to dismiss stage, “bare” and “conclusory” allegations

that the presence of coronavirus particles on its property caused direct physical damage to

its property was not enough to trigger coverage under the policies’ business income,

business interruption, and/or extra expense provisions. Relying on Mama Jo’s Inc. v.

2
Sparta Insurance Co., 823 F. App’x 868 (11th Cir. 2020), the court rejected the assertion

that “viruses like COVID-19 ‘infest property and stick to its surfaces’” which plaintiff

argued causes “the kind of structural alteration that comes within the purview of the term

‘direct physical loss of or damage to’ the covered premises” reasoning that items and

structures which are easily cleaned by disinfection have not suffered a ‘loss’ which is both

“direct” and “physical.” Similarly, the court found no coverage for loss of use based on

“intangible and incorporeal harm to the property” due to the presence of the COVID-19

virus or limitations imposed by government closure orders, even though the insured

property was temporarily rendered unsuitable for its intended use. (attached as Exhibit 3).

4. Paradigm Care & Enrichment Ctr., LLC v. W. Bend Mut. Ins. Co., --- F.4th ----, 2022 WL

1316382 (7th Cir. May 3, 2022) Affirming dismissal of complaint finding that plaintiff

could not plausibly assert that its property was “physically altered by the COVID-19 virus,

such that it had to be repaired, rebuilt, or replaced” as required for coverage under business

income, extra expense, and civil authority provisions but instead, merely alleged “a

temporary denial of their preferred use of their property.” (attached as Exhibit 4).

5. Jesse’s Embers, LLC v. W. Agric. Ins. Co., No. 21-0623, 2022 WL 1194006 (Iowa Apr.

22, 2022) The court affirmed the grant of summary judgment favoring the insurer, finding

that loss of use of property as a result of limitations imposed by closure orders does not

amount to direct physical loss of or damage to property under Iowa law which requires

“a physical aspect to the property loss” before business income and extra expense coverage

is triggered; similarly, civil authority coverage was not triggered as plaintiff failed to

3
demonstrate both a prohibition of access and “actual damage” to nearby property. (attached

as Exhibit 5).

6. Wakonda Club v. Selective Ins. Co. of Am., No. 21-0374, 2022 WL 1194012 (Iowa Apr.

22, 2022) The court affirmed the grant of summary judgment favoring the insurer, noting

that the possibility of the COVID-19 virus being present in plaintiff’s facilities was

insufficient to trigger coverage for the suspension of operations during the time that

plaintiff’s business was closed or restricted as a result of government closure orders which

were issued to slow the spread of the COVID-19 virus, and not because facilities like

plaintiff’s were in imminent danger of physical harm that would cause a loss of the

property. The court also recognized that every federal appellate court that has addressed

the same or substantially similar language has held that a loss of use of property due to

government closure orders does not constitute direct physical loss or damage to property.

(attached as Exhibit 6).

7. United Talent Agency v. Vigilant Ins. Co., No. B314242, 2022 WL 1198011 (Cal. Ct. App.

Apr. 22, 2022). The court sustained a demurrer and affirmed the dismissal of plaintiff’s

complaint, holding that plaintiff’s loss of use of its properties due to government orders

and other limitations nor the alleged presence of the virus in the air and on surfaces

constituted direct physical loss or damage to property as required by the policy’s business

income and extra expense provisions. The court agreed with the “majority of the cases

finding that the presence or potential presence of the virus does not constitute direct

physical damage or loss” despite plaintiff’s specific allegations that the presence of the

virus “causes physical loss and physical damage by requiring remedial measures to reduce

4
or eliminate the presence of SARS-CoV-2, including extensive cleaning and disinfecting;

installing, modifying, or replacing air filtration systems; remodeling and reconfiguring

physical spaces; and other measures.” Similarly, the court dismissed plaintiff’s claim for

civil authority coverage, explaining that government closure orders issued in response to

the pandemic did not cause “physical loss or damage to property” as required for coverage.

(attached as Exhibit 7).

8. Musso & Frank Grill Co. v. Mitsui Sumitomo Ins. USA Inc., No. B310499, 2022 WL

1182918 (Cal. Ct. App. Apr. 21, 2022) Affirming dismissal of policyholder’s complaint

where the policy expressly required direct physical loss of or damage to property, because

the policy’s requirement of “physical loss and damage” to trigger coverage is not satisfied

by losses incurred as a result of closure orders issued in response to the COVID-19

pandemic. The court further held that even assuming plaintiff could bring its claims within

the insuring clause, the virus exclusion would apply to bar coverage as it expressly

precluded coverage for all loss or damage caused by or resulting from a “virus” because

the closure orders were issued in response to the COVID-19 virus. (attached as Exhibit 8).

9. Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266 (Mass. Apr. 21, 2022) The court

affirmed the dismissal of plaintiffs’ claims for business income and extra expense coverage

“even accepting the premise that the suspension of their business was caused by the

‘presence’ of the virus surfaces and in the air at the restaurants” relying on the multitude

of decisions summarizing that the presence of the COVID-19 virus in the air or on surfaces

fails to qualify as direct physical loss or damage to property itself. Specifically, the court

explained that the ”[e]vanescent presence of a harmful airborne substance that will quickly

5
dissipate on its own, or surface-level contamination that can be removed by simple

cleaning, does not physically alter or affect property.” Plaintiffs continued to inhabit their

properties, albeit for other purposes and with reduced business, without any physical

alteration. Similarly, because the virus did not cause “damage” to the properties within one

mile of the Plaintiffs’ restaurants, the court denied claims for civil authority coverage.

(attached as Exhibit 9).

10. E. Coast Ent. of Durham, LLC v. Houston Cas. Co., 31 F.4th 547 (7th Cir. Apr. 12, 2022)

The court affirmed the dismissal of plaintiff’s business income claim relying on its holdings

in Sandy Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021) and Bradley

Hotel Corp. v. Aspen Specialty Ins. Co., 19 F.4th 1002 (7th Cir. 2021). The court explained

that plaintiff failed to allege a physical alteration of its property, because “the mere

presence of the virus on surfaces did not physically alter the [plaintiff’s] property, nor did

the existence of airborne particles carrying the virus” as the plaintiff did not allege that it

needed to ‘repair[ ], rebuil[d] or replace[ ]’ any structures or items on the premises, or that

its business ‘resumed at a new permanent location,’ as contemplated in the Policy’s ‘period

of restoration’ definition.” (attached as Exhibit 10).

6
Respectfully submitted,

DEFENDANT, AMERICAN GUARANTEE AND
LIABILITY INSURANCE COMPANY

By Its Attorneys,

/s/ Michael Menapace
Michael Menapace
Catherine Baiocchi
Alundai J. Benjamin
Wiggin and Dana LLP
20 Church Street,
16th Floor Hartford, Connecticut 06103
Juris No. 067700
Phone: 860-297-3700
Fax: 860-297-3799

Counsel for Defendant, American Guarantee and
Liability Insurance Company

7
CERTIFICATION

This is to certify that a copy of the foregoing was served on this day, May 13, 2022 by

electronic mail to the following counsel of record:

Marc J. Kurzman
Fatima Lahnin
Carmody Torrance Sandak & Hennessey LLP
707 Summer Street Stamford, CT 06901-1026
mkurzman@carmodylaw.com

Robert J. Gilbert, Esq.
Timothy McLaughlin, Esq.
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
robert.gilbert@lw.com
timothy.mclaughlin@lw.com

/s/ Michael Menapace

8
EXHIBIT 1
ITT INC. v. FACTORY MUTUAL INSURANCE COMPANY, Slip Copy (2022)

See Doc. #57. This matter was transferred to the undersigned
2022 WL 1471245 on October 15, 2021. See Doc. #63. FMIC filed the instant
Only the Westlaw citation is currently available. Motion to Dismiss on November 8, 2021. See Doc. #64.
United States District Court, D. Connecticut.
II. Factual Background
ITT INC.
The Court accepts the following allegations as true, solely for
v.
purposes of this Motion to Dismiss.
FACTORY MUTUAL INSURANCE COMPANY

Civ. No. 3:21CV00156(SALM) “ITT is a worldwide diversified manufacturing and
| technology company. ITT manufactures products and
Filed 05/10/2022 components and provides services for the aerospace,
transportation, energy, communications, and industrial
markets.” Doc. #57 at 3. “FM sold ITT an insurance policy
which ‘covers property, as described in this Policy, against
RULING ON MOTION TO DISMISS
ALL RISKS OF PHYSICAL LOSS OR DAMAGE, except
AMENDED COMPLAINT [Doc. #64]
as hereinafter excluded, while located as described in this
HON. SARAH A. L. MERRIAM UNITED STATES Policy.’ ” Id. at 3 (quoting Doc. #57-1 at 9).
DISTRICT JUDGE
In March 2020, numerous ITT facilitiesworldwide “were
*1 Defendant Factory Mutual Insurance Company (“FMIC” shut-down, thus curtailing access, following issuance of civil
or “defendant”) 1 has filed a motion pursuant to Federal Rule authority shelter-in-place orders because, among other things,
of Civil Procedure 12(b)(6) seeking to dismiss the Amended the actual presence of the COVID-19 communicable disease
Complaint (Doc. #57) in its entirety. [Doc. #64]. Plaintiff has within five miles of covered ITT locations was causing
filed a memorandum in opposition to the Motion to Dismiss loss or damage to property.” Id. at 19. “[T]he COVID-19
[Doc. #65], to which defendant has filed a reply [Doc. #66]. communicable disease had been identified to be present
Both parties have filed supplemental briefing. [Docs. ##68, at several covered ITT locations because infected persons
69, 71, 72, 73, 74, 75, 76]. For the reasons stated herein, the entered the premises, thus causing the shut-down of the
Motion to Dismiss [Doc. #64] is GRANTED. business[.]” Id. at 18.

Plaintiff also filed a Motion for Oral Argument, see Doc. #67, *2 By its terms, the Policy provides coverage for “TIME
to which defendant filed a response, see Doc. #70. The Court ELEMENT loss, as provided in the TIME ELEMENT
has determined that oral argument is not necessary and would COVERAGES, directly resulting from physical loss or
not assist the Court in ruling on the pending motion. See D. damage of the type insured: 1) to property described
Conn. L. Civ. R. 7(a)(3) (“Notwithstanding that a request for elsewhere in this Policy and not otherwise excluded by
oral argument has been made, the Court may, in its discretion, this Policy or otherwise limited in the TIME ELEMENT
rule on any motion without oral argument.”). Accordingly, COVERAGES below[.]” Doc. #57-1 at 49. Plaintiff
plaintiff's Motion for Oral Argument [Doc. #67] is DENIED. asserts thatthis provision provides “coverage for business
interruption and related losses sustained by ITT resulting
from the inability to put damaged property to its normal use
I. Procedural Background where ‘normal’ is defined by the Policy as ‘the condition
Plaintiff ITT Inc. (“ITT” or “plaintiff”) brought this action on that would have existed had no physical loss or damage
February 5, 2021, against FMIC. See Doc. #2 at 1. 2 On April happened.’ ” Doc. #57 at 4 (quoting Doc. #57-1 at 85).
2, 2021, FMIC filed a motion to dismiss, see Doc. #29, to
which plaintiff filed an opposition on April 23, 2021. See Doc. The Policy also contains several Time Element coverage
#42. Judge Stefan R. Underhill granted the motion to dismiss extensions. As relevant here, the Policy extends Time
without prejudice to plaintiff filing an Amended Complaint. Element coverage under the following provisions: (1) “Civil
See Doc. #55, Doc. #56. On September 2, 2021, ITT filed an or Military Authority[,]” Doc. #57-1 at 61; (2) “Ingress/
Amended Complaint, which is now the operative complaint. Egress[,]” id. at 62; and (3) “Logistics Extra Cost[.]” Id. at 63.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1
ITT INC. v. FACTORY MUTUAL INSURANCE COMPANY, Slip Copy (2022)

The Policy's Civil or Military Authority Extension provides
coverage for: 2) directly between an insured location and a location
of a direct customer, supplier, contract manufacturer or
contract services provider to the Insured,

[T]he Actual Loss Sustained and provided that such disruption is a direct result of physical
EXTRA EXPENSE incurred by the loss or damage of the type insured to property of the type
Insured during the PERIOD OF insured located within the TERRITORY of this Policy.
LIABILITY if an order of civil or
military authority limits, restrictsor Id. at 63.
prohibits partial or total access to an
insured location provided such order The Policy provides additional coverage for Claims
is the direct result of physical damage Preparation Costs. The Policy's Claims Preparation Costs
of the type insured at the insured provision provides coverage for, among other things, “the
location or within five statute miles/ cost of using the Insured's employees, for producing and
eight kilometres of it. certifying any particulars or details contained in the Insured's
books or documents, or such other proofs, information or
evidence required by the Company resultingfrom insured
Id. at 61. loss payable under this Policy for which the Company has
accepted liability.” Id. at 33.
The Policy's Ingress/Egress Extension provides coverage as
follows: The Policy contains the following Contamination Exclusion:

This Policy excludes the following unless directly resulting
from other physical damage not excluded by this Policy:
This Policy covers the Actual Loss
Sustained and EXTRA EXPENSE 1) contamination, and any cost due to contamination
incurred by the Insured during the including the inability to use or occupy property or
PERIOD OF LIABILITY due to the any cost of making property safe or suitable for use
necessary interruption of the Insured's or occupancy. If contamination due only to the actual
business due to partial or total physical not suspected presence of contaminant(s) directly
prevention of ingress to or egress results from other physical damage not excluded by
from an insured location, whether or this Policy, then only physical damage caused by such
not the premises or property of the contamination may be insured.
Insured is damaged, provided that such
prevention is a direct result of physical Id. at 25.
damage of the type insured to property
of the type insured. Contamination is defined as “any condition of property
due to the actual or suspected presence of any foreign
substance, impurity, pollutant,hazardous material,poison,
toxin, pathogen or pathogenic organism, bacteria, virus,
Id. at 62.
disease causing or illness causing agent, fungus, mold or
mildew.” Id. at 82.
Finally, the Policy provides the following Logistics Extra
Cost coverage:
*3 While the policy excludes coverage for contamination
This Policy covers the extra cost incurred by the Insured and related costs, it provides Communicable Disease
during the PERIOD OF LIABILITY due to the disruption coverage with a $1,000,000.00 annual aggregate sublimit
of the normal movement of goods or materials: under two provisions. See id. at 15. Communicable Disease
is defined as a “disease which is: A. transmissible from
1) directly between insured locations; or human to human by direct or indirect contact with an affected

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2
ITT INC. v. FACTORY MUTUAL INSURANCE COMPANY, Slip Copy (2022)

individual or the individual's discharges, or B. Legionellosis.”
Id. at 82. this Policy covers the Actual Loss Sustained and EXTRA
EXPENSE incurred by the Insured during the PERIOD OF
Under the first Communicable Disease provision, LIABILITY at such location with the actual not suspected
“Communicable Disease Response” Coverage, the Policy presence of communicable disease.
provides:
Id. at 68.
If a location owned, leased or rented by the Insured
has the actual not suspected presence of communicable “ITT submitted its initial proof of loss under the Policy to FM
disease and access to such location is limited, restricted or on June 26, 2020.” Doc. #57 at 23. Defendant “acknowledged
prohibited by: receipt of the proof of loss on July 17, 2020.” Id. In its
July 17, 2020, letter,defendant rejected plaintiff'sclaim
1) an order of an authorized governmental agency for coverage “arising from the novel coronavirus under the
regulating the actual not suspected presence of civil or military authority, time element and contingent time
communicable disease; or element extended, and extra expense coverages under the
Policy.” Doc. #57-3 at 67. Specifically, defendant stated:
2) a decision of an Officer of the Insured as a result of
the actual not suspected presence of a communicable [T]he presence of COVID-19 at an insured location does
disease, not constitute “physical damage of the type insured” as
required under those provisions of the Policy. The presence
this Policy covers the reasonable and necessary costs of a virus does not alter or materially change property.
incurred by the Insured at such location with the actual not Your locations were not rendered unusable by the tangible
suspected presence of communicable disease for the: presence of the virus, but instead were closed to prevent
the spread of the virus among humans by coming into
1) cleanup, removal and disposal of the actual not
close contact with each other, whether or not the virus was
suspected presence of communicable diseases from
actually present on any property. ...
insured property; and
Even assuming the presence of coronavirus at each of the
2) actual costs of fees payable to public relations services
ITT locations in the claim could be established, which it has
or actual costs of using the Insured's employees for
not been, it does not cause any physical change or new risk
reputation management resulting from the actual not
to the physical integrity of the property in any way, let alone
suspected presence of communicable diseases on
create tangible, structural damage. Thus, the mere threat of
insured property.
the coronavirus at the property or the preemptive closure of
Id. at 33-34. those locations to prevent the spread of COVID-19 is not
considered “direct physical loss or damage” to property.
The Second Communicable Disease provision provides
*4 Moreover, contamination due to COVID-19 would
coverage for “Interruption by Communicable Disease” as
be excluded under the Policy. We again refer you to
follows:
our 13 May 2020 letter, and the relevant provisions
If a location owned, leased or rented by the Insured of the contamination exclusion and the definition of
has the actual not suspected presence of communicable contamination, which includes “...pathogen or pathogenic
disease and access to such location is limited, restricted or organism, bacteria, virus, disease causing or illness causing
prohibited by: agent...” Thus, a virus such as COVID-19 is expressly
identified as a form of contamination under the Policy.
1) an order of an authorized governmental agency
regulating the actual not suspected presence of Id.
communicable disease; or
Following defendant's July 10, 2021, letter,the parties
2) a decision of an Officer of the Insured as a result of “continued to discuss ITT's claim over the next ten
the actual not suspected presence of communicable months.” Doc. #57 at 24. Ultimately, defendant paid plaintiff
disease, “the $1 million annual aggregate sublimit” under the

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3
ITT INC. v. FACTORY MUTUAL INSURANCE COMPANY, Slip Copy (2022)

Policy's Communicable Disease Response and Interruption #64-1 at 18 n.5. The Court therefore applies Connecticut law,
by Communicable Disease coverage provisions. Doc. #64-1 but has consulted New York law as well.
at 16; see also Doc. #57 at 24.

Plaintiff argues that it is entitled to additional coverage V. Law Regarding Interpretation of Insurance Policies
under the Policy's Time Element, Civil or Military Authority, Under Connecticut law, “[a]n insurance policy is to be
Ingress/Egress, Logistics Extra Cost, and Claims Preparation interpreted by the same general rules that govern the
Costs provisions. See Doc. #57 at 22-23. construction of any written contract. ... If the terms of the
policy are clear and unambiguous, then the language, from
which the intention of the parties is to be deduced, must be
III. Legal Standard
accorded its natural and ordinary meaning.” Lexington
“When deciding a motion to dismiss, a districtcourt may
Ins. Co. v. Lexington Healthcare Grp., Inc., 84 A.3d 1167,
consider documents attached to the complaint or incorporated
1173 (Conn. 2014) (citation and quotation marks omitted).
by reference into the complaint[,]” including an insurance
The “policy language remains the touchstone of our inquiry.”
policy referenced in the complaint. New Image Roller Dome,
Inc. v. Travelers Indem. Co. of Ill., 310 F. App'x 431, 432 (2d Conn. Ins. Guar. Ass'n v. Fontaine, 900 A.2d 18, 22 (Conn.
Cir. 2009) (citation omitted). 2006).

“To survive a motion to dismiss, a complaint must contain *5 “A contract of insurance must be viewed in its entirety,
sufficientfactual matter, accepted as true, tostate a claim and the intent of the parties for entering it derived from the
four corners of the policy giving the words of the policy their
to relief that is plausible on its face.” Ashcroft v. Iqbal,
natural and ordinary meaning and construing any ambiguity
556 U.S. 662, 678 (2009) (citation and quotation marks
in the terms in favor of the insured.” Misiti, LLC v.
omitted); accord Kaplan v. Lebanese Canadian Bank,
Travelers Prop. Cas. Co. of Am., 61 A.3d 485, 490–91 (Conn.
SAL, 999 F.3d 842, 854 (2d Cir. 2021). In reviewing such
2013) (citations and quotation marks omitted). However, the
a motion, the Court “must accept as true all nonconclusory
Court need not resolve an ambiguity that does not exist, and
factual allegations in the complaint and draw all reasonable
must not manufacture one. Thus, the “rule of construction
inferences in the Plaintiffs’ favor.”Kaplan, 999 F.3d at 854 that favors the insured in case of ambiguity applies only
(citations omitted). when the terms are,without violence, susceptible of two
equally reasonable interpretations.” Id. at 491 (citation and
“[W]hile thisplausibility pleading standard isforgiving, it
quotation marks omitted).
is not toothless. It does not require [the Court] to credit
legal conclusions couched as factual allegations or naked
assertions devoid of further factual enhancement.” Mandala
In determining whether the terms of
v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (citation
an insurance policy are clear and
and quotation marks omitted). “A pleading that offers labels
unambiguous, a court will not torture
and conclusions or a formulaic recitation of the elements of
words to import ambiguity where the
a cause of action will not do.” Iqbal, 556 U.S. at 678 ordinary meaning leaves no room for
(citations and quotation marks omitted). ambiguity. Similarly, any ambiguity
in a contract must emanate from
the language used in the contract
IV. Choice of Law
rather than from one party's subjective
Plaintiffmakes no argument regarding choice of law, but
perception of the terms.
simply cites to and relies upon Connecticut law in its
opposition brief. See Doc. #65 at 18-19. Defendant asserts
that the outcome would be the same “regardless of whether
Connecticut or New York law applies and, therefore, the Zulick v. Patrons Mut. Ins. Co., 949 A.2d 1084, 1088
Court need not engage in a choice-of-law analysis.” Doc. (Conn. 2008) (citationand quotation marks omitted). The
Court will not find that ambiguity exists “simply because

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 4
ITT INC. v. FACTORY MUTUAL INSURANCE COMPANY, Slip Copy (2022)

lawyers or laymen contend for different meanings[ ]” of Policy[.]” Id. at 49 (emphasis added). Thus, under the
certain words, or simply “because a contract fails to define Policy's Time Element provision, “physical loss or damage”
to property is necessary to trigger coverage.
them[.]” New London Cnty. Mut. Ins. Co. v. Nantes, 36
A.3d 224, 235 (Conn. 2012) (citations and quotation marks
Second, plaintiff asserts the right to coverage under the
omitted); see also Misiti, LLC, 61 A.3d at 491 (“The fact Policy's Civil or Military Authority Extension. The Civil
that the parties advocate different meanings of the insurance or Military Authority Extension states that defendant will
policy does not necessitate a conclusion that the language is provide coverage for
ambiguous.” (citations and quotation marks omitted)).

*6 the Actual Loss Sustained and
VI. Discussion
EXTRA EXPENSE incurred by the
Plaintiff'sAmended Complaint assertsa single claim for
Insured during the PERIOD OF
breach of contract. See Doc. #57 at 25-26. Defendant argues
LIABILITY if an order of civil or
that this action should be dismissed in its entirety because: (1)
military authority limits, restrictsor
“Plaintiff Cannot Demonstrate Physical Loss or Damage to
prohibits partial or total access to an
its Insured Properties[,]” Doc. #64-1 at 19; (2) “The Policy's
insured location provided such order is
Contamination Exclusion Bars ITT's Claim for Coverage[,]”
the direct result of physical damage
Id. at 33; and (3) “The Loss of Use Exclusion bars Plaintiff's
of the type insured at the insured
claims for damages arising from ITT's alleged inability
location or within five statute miles/
to fully use its properties.” Id. at 37. Plaintiff opposes
eight kilometres of it.
defendant's Motion to Dismiss on all three grounds. See Doc.
#65. The Court finds that plaintiff's
failure to adequately
allege any physical loss or damage under the Policy is fatal to
its breach of contract claim. Accordingly, for the reasons set Id. at 61 (emphasis altered). Thus, before coverage under the
forth below, defendant's Motion to Dismiss is GRANTED. Civil or Military Authority Extension is triggered, “physical
damage” to property is required.

A. Physical Loss or Damage Third, plaintiff asserts the right to coverage under the Ingress/
The breach of contract claim fails because plaintiff has not Egress Extension. That extension provides coverage for
adequately alleged any physical loss or damage under the losses incurred
Policy.

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Document Filed Date

May 13, 2022

Case Filing Date

October 07, 2021

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Party Notice: WESTPORT CAPITAL PARTNERS LLC v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY

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