USCA11 Case: 21-12124 Date Filed: 05/24/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12124
Non-Argument Calendar
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LEFT FIELD HOLDINGS III,
Plaintiff-Appellant,
versus
COLONY INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24700-PCH
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USCA11 Case: 21-12124 Date Filed: 05/24/2022 Page: 2 of 3
2 Opinion of the Court 21-12124
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal presents the question of whether, under Florida
law, a commercial property insurance policy that provides cover-
age for direct physical loss or damage to the covered property in-
sures against losses and expenses incurred because of COVID-19.
Plaintiff-Appellant Left Field Holdings III, LLC (Left Field) pur-
chased such a policy from Defendant-Appellee Colony Insurance
Company (Colony) to insure its restaurant. Following the suspen-
sion of business operations due to the COVID-19 pandemic, Left
Field sought to recover for its losses and expenses under the policy.
When Colony failed to pay for those losses and expenses, Left Field
sued Colony for declaratory judgment and breach of contract. Left
Field alleged that Colony failed to pay for the covered losses of
“Business Interruption,” “Extra Expense,” and “Civil Authority.”
All of these coverages require direct physical loss or damage to the
property.
The district court granted judgment on the pleadings in fa-
vor of Colony because it determined that direct physical loss or
damage requires tangible and concrete changes to the property and
losses sustained by COVID-19 are thus not covered under the
USCA11 Case: 21-12124 Date Filed: 05/24/2022 Page: 3 of 3
21-12124 Opinion of the Court 3
policy. On appeal of the district court’s judgment on the plead-
ings, 1 Left Field argues that direct physical loss or damage does not
require structural alteration of the property. Although the Florida
Supreme Court and the Florida District Courts of Appeal have not
addressed this issue, we held in SA Palm Beach, LLC v. Certain Un-
derwriters at Lloyd’s London, No. 20-14812, -- 4th --, 2022 WL
1421414, at *8 (11th Cir. May 5, 2022), that “physical loss of or dam-
age” requires “some tangible alteration of the property.” Accord-
ingly, there is “no coverage for loss of use based on intangible and
incorporeal harm to the property due to COVID-19.” Since losses
and expenses sustained because of COVID-19 are intangible and
physical loss or damage requires tangible alteration of the property,
Left Field’s claimed losses and expenses are not covered under the
policy. The district court’s judgment on the pleadings in favor of
Colony is affirmed.
AFFIRMED.
1 We review de novo a district court's order granting judgment on the plead-
ings. Perez v. Wells Fargo N.A., 774 F. 3d 1329, 1335 (11th Cir. 2014).