USCA11 Case: 21-11930 Date Filed: 05/13/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11930
Non-Argument Calendar
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CAFE INTERNATIONAL HOLDING COMPANY LLC,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
CHUBB LIMITED,
Defendant,
WESTCHESTER SURPLUS LINES INSURANCE COMPANY,
Defendant-Appellee.
USCA11 Case: 21-11930 Date Filed: 05/13/2022 Page: 2 of 4
2 Opinion of the Court 21-11930
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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-21641-JG
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Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Cafe International Holding Company owns an upscale
Italian restaurant in Fort Lauderdale. In November 2019, it
purchased a yearlong insurance policy from Westchester Surplus
Lines Insurance Company to protect its restaurant. The policy
included coverage for “actual loss of Business Income” sustained
during a necessary suspension of operations “caused by direct
physical loss of or damage to” the insured property. It also
provided coverage for additional expenses incurred due to a
“Covered Cause of Loss”—defined as “direct physical loss” by the
policy.
The public health emergency caused by the COVID-19
pandemic of early 2020 affected Florida just as it did the rest of the
country. Responding to this threat, both state and county officials
issued orders requiring Cafe International—like other food service
providers—to temporarily close its restaurant. Cafe International
complied with these orders, “sustained losses of business income,
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21-11930 Opinion of the Court 3
and incurred extra expenses.” But when it notified Westchester of
its losses, the insurance company declined to pay.
Cafe International sued Westchester, alleging that its
business losses and extra expenses resulting from the COVID-19
pandemic were covered by the 2019 insurance policy. The district
court rendered judgment on the pleadings in favor of Westchester.
Applying Florida law, it found “no plausible, sufficiently specific
allegations of direct physical loss of or damage to the restaurant,”
and therefore concluded that Cafe International’s losses were not
covered under the policy. This appeal followed.
“A motion for judgment on the pleadings is governed by the
same standard as a motion to dismiss under Rule 12(b)(6).”
Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th
Cir. 2018). That is, to survive a motion for judgment on the
pleadings, a complaint must allege facts sufficient to “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quotation omitted). Although we accept the facts
alleged in the complaint as true, “we are not bound to accept as
true a legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986).
As this Court recently explained, “every federal and state
appellate court that has decided the meaning of ‘physical loss of or
damage to’ property (or similar language) in the context of the
COVID-19 pandemic has come to the same conclusion”: loss of
business as a result of government closure orders is not covered
under such language because “some tangible alteration of the
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4 Opinion of the Court 21-11930
property is required.” SA Palm Beach, LLC v. Certain
Underwriters at Lloyd’s London, __ F.4th __, No. 20-14812, 2022
WL 1421414, at *8 (11th Cir. 2022) (collecting cases). No Florida
precedent suggests—much less holds—otherwise. “We therefore
presume that Florida would adopt the majority position.” Id. at *9.
We AFFIRM the district court’s judgment.