***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MASHANTUCKET PEQUOT TRIBAL
NATION v. FACTORY MUTUAL
INSURANCE COMPANY
(AC 45600)
Bright, C. J., and Alvord and Pellegrino, Js.
Syllabus
The plaintiff, a federally recognized Indian Tribe, owns and operates, inter
alia, a casino and resort complex. The defendant insurance company
issued the plaintiff an all risk insurance policy, which covered the plain-
tiff’s listed properties against all risks of physical loss or damage and
for business interruptions up to $1,655,000,000 per occurrence. These
coverages were triggered by physical loss or damage to covered prop-
erty; that threshold language was not defined in the policy. The policy
also included coverage for certain specified events, including for a
response to a communicable disease and communicable disease busi-
ness interruption loss. The policy contained an exclusion to covered
costs for contamination due to a virus. As a result of the COVID-19
pandemic, the plaintiff claimed that it suffered, inter alia, physical loss
and damage to its locations and properties in excess of $76 million.
Upon the defendant’s denial of the plaintiff’s claim, the plaintiff sought,
inter alia, a declaratory judgment that the defendant was required to
provide coverage for the losses that the plaintiff sustained as a result
of its suspension of business operations during the COVID-19 pandemic.
The plaintiff claimed that the presence of COVID-19 fell within several
of the provisions within the policy and that the policy’s exclusion for
contamination by a virus did not apply. The plaintiff maintained that
the virus could be spread in many ways, could remain viable for many
days on objects, surfaces, and materials, and that physical alterations
of its property as a result of the presence of COVID-19 rendered the
property nonfunctional, unsafe, and unusable. In addition, the plaintiff
alleged that it suffered business interruption losses due to the presence
of COVID-19, as the plaintiff’s businesses were required to shut down
or limit their operations pursuant to orders from tribal and state govern-
ments and to mitigate its losses. The defendant filed a motion to strike
the plaintiff’s operative complaint, asserting that the relief the plaintiff
sought was unavailable under the clear and unambiguous language of
the policy and that the exclusion for contamination by a virus barred
the plaintiff’s claims. The trial court granted in part the defendant’s
motion to strike, concluding that, although the plaintiff purchased an
all risk policy, the unambiguous language of the policy provided exclu-
sions and limits for various specified damages. The trial court deter-
mined that COVID-19 was a virus, the virus was considered contamina-
tion, and, accordingly, contamination by a virus was not covered by the
policy. The trial court found, however, that claims for costs under the
provisions for communicable disease response and communicable dis-
ease business interruption losses were covered, although coverage was
capped at $1 million under each of those provisions, and denied the
motion to strike as to these claims. The trial court also declined to
address whether alleged damage from COVID-19 constituted physical
damage to, or loss of, property. On appeal to this court, the plaintiff
claimed that it had sufficiently and specifically pleaded that COVID-19
physically altered its property, that the trial court improperly concluded
that the exclusion for contamination by a virus applied to its claims for
coverage, and that the policy expressly recognized the presence of a
communicable disease as a physical loss or damage. Held that the trial
court properly granted in part the defendant’s motion to strike, that court
having properly concluded that the contamination exclusion applied
and defeated the plaintiff’s claims for coverage under the property dam-
age and business interruption loss provisions: the plaintiff’s allegations
in its operative complaint did not establish that COVID-19 caused physi-
cal loss or damage to its properties, and, therefore, the allegations were
insufficient to trigger coverage under the policy for property damage
or business interruption losses, as the plaintiff failed to allege facts
showing the manner in which COVID-19 caused a physical, tangible
alteration to or resulted in the deprivation of property that rendered it
physically unusable or inaccessible, and, instead, offered conclusory
allegations that COVID-19 caused a risk of physical loss or damage and
that the presence of COVID-19 constituted a risk of physical loss or
damage; moreover, the trial court properly concluded that the unambigu-
ous language of the contamination exclusion specifically excluded cover-
age for any cost resulting from the presence of COVID-19 from the
physical loss or damage and business loss interruption provisions; fur-
thermore, the plaintiff could not prevail on its claim that the actual
presence of a communicable disease such as COVID-19 constituted
physical loss or damage under the policy’s communicable disease
response provision, as that provision did not require physical loss or
damage, was triggered only if a location has the actual, not suspected,
presence of a communicable disease and access was limited by an officer
of the plaintiff or a government agency regulating the disease’s presence,
and this coverage provided only for the reasonable and necessary costs
for cleanup, removal, and disposal of the disease from the property;
additionally, the plaintiff could not prevail on its claim that the issue
of whether COVID-19 physically altered property could not be deter-
mined at the motion to strike phase of the litigation, as our Supreme
Court and other courts have already determined, even at the pleading
stage, that properties were not altered as a result of the COVID-19
pandemic, and the plaintiff in the present matter pleaded only conclusory
allegations that COVID-19 caused physical, tangible alteration to prop-
erty, but did not provide any specifics as to how the property purportedly
was altered.
Argued October 10, 2023—officially released April 2, 2024
Procedural History
Action, inter alia, seeking a declaratory judgment
determining the applicability of certain coverage provi-
sions under an insurance policy issued by the defendant
to the plaintiff, and for other relief, brought to the Supe-
rior Court in the judicial district of New London, where
the matter was transferred to the judicial district of
Hartford, Complex Litigation Docket; thereafter, the
court, Moukawsher, J., granted in part the defendant’s
motion to strike; subsequently, the parties filed a joint
stipulation in which the plaintiff withdrew with preju-
dice its remaining claims; thereafter, the court, Noble, J.,
granted the plaintiff’s motion for judgment and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
Michael C. D’Agostino, with whom, on the brief, was
Sergio F. Oehninger, pro hac vice, for the appellant
(plaintiff).
Bryce L. Friedman, pro hac vice, with whom were
Matthew C. Penny, pro hac vice, and Andraya Pulaski
Brunau, for the appellee (defendant).
Opinion
PELLEGRINO, J. The issue at the core of this appeal
is, in the context of a dispute regarding insurance cover-
age for business losses suffered as a result of the
COVID-19 pandemic, whether the operative complaint
contained sufficient allegations to withstand a motion
to strike pursuant to Practice Book § 10-39. The plain-
tiff, Mashantucket Pequot Tribal Nation, appeals from
the judgment rendered in favor of the defendant, Fac-
tory Mutual Insurance Company, following the partial
granting of its motion to strike and the subsequent
withdrawal of the remaining claims set forth in the
plaintiff’s operative complaint. On appeal, the plaintiff
claims that (1) the court improperly concluded that a
policy exclusion for contamination caused by a virus
applied to the majority of its claims for coverage and
(2) our Supreme Court’s decisions in Connecticut Der-
matology Group, PC v. Twin City Fire Ins. Co., 346
Conn. 33, 288 A.3d 187 (2023) (CT Dermatology), and
Hartford Fire Ins. Co. v. Moda, LLC, 346 Conn. 64, 288
A.3d 206 (2023) (Moda), both of which were released
subsequent to the trial court’s decision in the present
case, do not provide an alternative basis to affirm the
trial court’s granting of the motion to strike. We disagree
with both of the plaintiff’s claims and, accordingly,
affirm the judgment of the court.
The following facts, as alleged in the first amended
complaint (operative complaint), and procedural his-
tory are relevant to our resolution of this appeal. The
plaintiff, a federally recognized Indian Tribe headquar-
tered at a reservation located within the geographic
boundaries of Connecticut, operates and has an interest
in a number of businesses, including the Mashantucket
Pequot Gaming Enterprise, doing business as Fox-
woods Resort Casino, a resort and casino complex that
includes multiple casinos, hotels, theaters and restau-
rants. The defendant, a Rhode Island insurance com-
pany licensed to write commercial property insurance
in Connecticut, sold an ‘‘all risk’’ insurance policy (pol-
icy) to the plaintiff, which covers ‘‘[the plaintiff] and
any subsidiary, and [the plaintiff’s] interest in any part-
nership or joint venture in which [the plaintiff] has
management control or ownership as now constituted
or hereafter is acquired . . . .’’1 The term of this policy
is from July 1, 2019, through July 1, 2020, and covers
the plaintiff’s listed property against all risks of (1)
physical loss or damage and (2) business interruptions
(time element loss)2 up to $1,655,000,000 per occur-
rence. These primary coverages were triggered by phys-
ical loss or damage to covered property;3 that threshold
language, however, was not defined in the policy. The
plaintiff paid millions of dollars in premiums to the
defendant for this insurance policy.
The plaintiff claimed that it suffered direct physical
loss and damage to locations and properties insured
under the policy, as well as time element loss, and other
types of covered losses in excess of $76 million as a
result of the ‘‘deadly and highly contagious’’ COVID-19
disease, which the World Health Organization declared
to be a pandemic on March 11, 2020.4 The plaintiff con-
tended that ‘‘COVID-19 causes a physical, tangible alter-
ation to property, and the presence of COVID-19 amounts
to physical loss and damage to property.’’ Specifically,
the plaintiff maintained that COVID-19 can be spread
in several ways, including from person-to-person via
respiratory droplets, through airborne transmission, and
by contact with objects or surfaces. The plaintiff also
asserted that COVID-19 can remain viable for many days
on objects, surfaces, or materials, including those used
in the ordinary course of business by the plaintiff. The
plaintiff claimed that physical alterations of its property
as a result of the presence of COVID-19 rendered it
nonfunctional, unsafe, or unusable.5 Additionally, the
plaintiff alleged that the presence of COVID-19 in the
air rendered the property unusable, uninhabitable, and
unfit for normal occupancy or use. As a result of the
presence of COVID-19, the plaintiff’s businesses shut
down or limited their operations pursuant to orders
from tribal and state governments and to mitigate its
losses, and, therefore, the plaintiff sustained time ele-
ment losses.
The all risk insurance policy that the plaintiff pur-
chased from the defendant provided various types of
coverages, including for the aforementioned physical
loss or damage and time element loss, as well as addi-
tional coverages for certain specified events, such as the
response to a communicable disease such as COVID-19.
In other words, the policy included numerous coverage
provisions, the majority of which are not mutually
exclusive. The plaintiff alleged that the presence of
COVID-19 fell within several of the coverages contained
in the policy. The plaintiff also claimed that the policy’s
exclusion for contamination due to a virus did not apply.
The plaintiff submitted a claim under the policy, which
the defendant denied.6
In its operative complaint, the plaintiff sought a
declaratory judgment7 and also alleged claims for breach
of contract,8 common-law bad faith,9 and violations of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.10 In its prayer for relief,
the plaintiff sought declaratory relief, monetary dam-
ages, interest, attorney’s fees, and other relief the court
deemed just and proper. The plaintiff attached a copy
of the insurance policy to the complaint.11
On May 4, 2021, the defendant filed a motion to strike
the operative complaint pursuant to Practice Book § 10-
39, claiming that ‘‘the relief [the plaintiff] seeks is
unavailable under the clear and unambiguous terms of
the parties’ insurance contract . . . .’’ In the memoran-
dum of law in support of its motion to strike, the defen-
dant noted that the policy covered the property against
all risks of physical loss or damage, subject to certain
exclusions,12 which, in turn, were subject to certain
exceptions. ‘‘Thus, the policy provides coverage for
physical loss or damage unless an exclusion applies, and
an exclusion applies unless an exception to the exclu-
sion is ‘otherwise stated’ in the policy.’’
Next, the defendant argued that the court should
strike counts one and two of the operative complaint
because the policy excluded contamination by a virus,
and COVID-19 is caused by the Severe Acute Respira-
tory Syndrome Coronavirus 2, known as the SARS-CoV-
2 virus. The defendant contended that the policy did not
provide coverage for property damage or time element
losses resulting from a virus, as stated in the contamina-
tion exclusion. Additionally, the defendant asserted
that, because COVID-19 did not cause physical loss or
damage to property, most of the coverages in the insur-
ance policy did not apply. With respect to the additional
coverage for the actual presence of a communicable
disease, which did not require physical loss or damage
to property, the defendant asserted that the plaintiff
had failed to allege the actual presence of COVID-19
on its premises. As a result of its arguments regarding
counts one and two of the amended complaint, the defen-
dant claimed that counts three and four failed as well.
On June 16, 2021, the plaintiff filed a memorandum
of law in opposition to the defendant’s motion to strike.
At the outset, it stated that, unlike other insurance com-
panies, the defendant ‘‘issued a unique policy form to
the [plaintiff] that expressly covers communicable dis-
ease as insured physical loss or damage.’’ (Emphasis
in original; internal quotation marks omitted.) Addition-
ally, it explained that COVID-19 is not a virus but rather
a communicable disease caused by SARS-CoV-2. Next,
the plaintiff contended that it had pleaded the actual
presence of COVID-19 at its business locations. The
plaintiff then argued that the contamination exclusion
contained in the policy did not exclude coverage for
loss caused by a communicable disease. Finally, the
plaintiff countered that it sufficiently had alleged claims
for common-law bad faith and violations of CUTPA in
counts three and four of the operative complaint.
On July 14, 2021, the defendant filed a reply memoran-
dum of law in support of its motion to strike. Therein,
the defendant repeated that (1) the contamination
exclusion barred the plaintiff’s claims for losses caused
by COVID-19, (2) the plaintiff failed to plead sufficient
facts establishing that COVID-19 tangibly altered the
property as required by case law to meet the policy’s
threshold requirement of physical loss or damage for
the property damage and time element loss coverages,
(3) the plaintiff failed to allege the actual presence of
COVID-19 and, therefore, the claim under the communi-
cable disease coverage provision failed, and (4) counts
three and four of the operative complaint alleging com-
mon-law bad faith and CUTPA violations should be
stricken because the complaint failed to establish that
the plaintiff was entitled to coverage under the policy.
Additionally, it emphasized that the operative complaint
had referred to SARS-CoV-2, a virus, and COVID-19, a
communicable disease, collectively as COVID-19.
On August 18, 2021, the court, Moukawsher, J., issued
a memorandum of decision granting, in part, the defen-
dant’s motion to strike. At the outset, the court explained
that, although the plaintiff purchased an all risk insur-
ance policy with approximately $1.6 billion in coverage,
the language of the policy provided exclusions and lim-
its for various specified damages. It also concluded that
the policy language was unambiguous, and, therefore,
the court would interpret the policy coverage as a mat-
ter of law. The court then stated: ‘‘After reading [the
policy], any reasonable person would have to conclude
that a virus is a contamination and contamination isn’t
covered. It means that . . . the policy assumes, unless
otherwise provided for, that no costs due to a virus are
covered—costs like those incurred when the Pequot
casino was shuttered by government edict, lost busi-
ness, and had to be cleaned up and recalibrated.’’ The
policy, however, contained two types of ‘‘extra’’ cover-
ages; namely, for communicable disease response costs
and communicable disease business interruption loss
(communicable disease provisions).13 These provisions
were capped in the aggregate at $1 million per year.
The court rejected the defendant’s contention that the
plaintiff had failed to plead the actual, rather than sus-
pected, presence of a communicable disease, as required
by the communicable disease provisions. Furthermore,
the court expressly declined to address whether the
damage from COVID-19 constituted physical damage to
or loss of the property, the necessary predicate for prop-
erty damage or time element coverages, or the issues
of concurrent and indirect causation.
The court concluded that all four counts of the opera-
tive complaint survived the partial granting of the defen-
dant’s motion to strike, but that certain arguments had
been resolved. ‘‘To the extent that counts one and two
claim no limit bars or exclude the [plaintiff’s] claims for
coverage beyond the communicable disease provisions
and their liability limits, the court strikes those allega-
tions because they fail as a matter of law. To the extent
that [it seeks] covered costs under the policy provisions
for communicable disease response and [communica-
ble disease business interruption loss], the motion to
strike is denied. . . . Counts three and four of the com-
plaint are for bad faith and unfair trade practices. [The
defendant] moves to strike them because they are
dependent on there being coverage, and [the defendant]
says there isn’t any coverage. Because the court has
held [that] there is some coverage, [the defendant’s]
motion to strike these claims is granted and denied to
the same extent it is granted and denied as to counts
one and two. . . . In short, what is left of the [plain-
tiff’s] claim under the policy is for covered costs under
the provisions granting coverage for communicable dis-
ease response and [communicable disease business
interruption loss]. [The defendant’s] liability under the
policy is limited to: (1) $1 million in the aggregate during
any policy year for communicable disease response,
and (2) $1 million in the aggregate during any policy year
for interruption by communicable disease.’’ (Footnote
omitted.)
On September 3, 2021, the plaintiff filed a motion
seeking the entry of judgment consistent with the
court’s memorandum of decision granting, in part, the
defendant’s motion to strike, and a written determina-
tion to allow an immediate appeal pursuant to Practice
Book § 61-4 (a). On June 2, 2022, the parties filed a
joint stipulation in which the plaintiff withdrew, with
prejudice, its claims that remained following the court’s
August 18, 2021 decision. That same day, the plaintiff
also filed a motion for judgment pursuant to Practice
Book § 10-44. On June 3, 2022, the court, Noble, J.,
granted the plaintiff’s motion and rendered judgment
accordingly.14
The plaintiff filed the present appeal on June 22, 2022.
Approximately one month later, this court, sua sponte,
stayed the appeal pending the final disposition by our
Supreme Court of two pending appeals, Connecticut
Dermatology Group, PC v. Twin City Fire Ins. Co.,
supra, 346 Conn. 33, and Hartford Fire Ins. Co. v. Moda,
LLC, supra, 346 Conn. 64. On January 27, 2023, our
Supreme Court issued its decisions in those appeals.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motion to strike. Specifi-
cally, the plaintiff argues that it sufficiently and specifi-
cally pleaded that COVID-19 physically altered its
property and that the policy expressly recognized the
presence of a communicable disease as a physical loss
or damage. The defendant counters that the plain lan-
guage of the policy, specifically, the contamination
exclusion, expressly bars coverage for ‘‘any condition
of property due to the actual or suspected presence of
any . . . virus.’’ (Internal quotation marks omitted.)
The defendant further argues that, pursuant to our
Supreme Court’s decisions in Connecticut Dermatology
Group, PC v. Twin City Fire Ins. Co., supra, 346 Conn.
33, and Hartford Fire Ins. Co. v. Moda, LLC, supra,
346 Conn. 64, the alleged presence of COVID-19 does
not constitute a physical loss or damage, the necessary
trigger for coverage under this type of insurance policy.
For these reasons, the defendant maintains that the
decision of the trial court should be affirmed. We agree
with the defendant.
We begin by setting forth our standard of review and
the legal principles regarding the granting of a motion
to strike. ‘‘The purpose of a motion to strike is to contest
. . . the legal sufficiency of the allegations of any com-
plaint . . . to state a claim upon which relief can be
granted. . . . A motion to strike challenges the legal
sufficiency of a pleading, and, consequently, requires
no factual findings by the trial court. . . . [The court
takes] the facts to be those alleged in the complaint
. . . and [construes] the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.
. . . Moreover . . . [w]hat is necessarily implied [in
an allegation] need not be expressly alleged. . . . It is
fundamental that in determining the sufficiency of a
complaint challenged by a defendant’s motion to strike,
all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted.’’
(Citation omitted; internal quotation marks omitted.)
Plainville v. Almost Home Animal Rescue & Shelter,
Inc., 182 Conn. App. 55, 63, 187 A.3d 1174 (2018); see
also Greenwald v. Van Handel, 311 Conn. 370, 374–75,
88 A.3d 467 (2014); Himmelstein v. Windsor, 304 Conn.
298, 307, 39 A.3d 1065 (2012); see generally Practice
Book § 10-39.15 Our review of a trial’s court decision to
grant a motion to strike is plenary. Stevens v. Khalily,
220 Conn. App. 634, 645, 298 A.3d 1254, cert. denied,
348 Conn. 915, 303 A.3d 260 (2023); A.C. Consulting,
LLC v. Alexion Pharmaceuticals, Inc., 194 Conn. App.
316, 325, 220 A.3d 890 (2019). The legal conclusions
contained in a complaint, however, are not deemed to
be admitted by a court ruling on a motion to strike.
Hughes v. Board of Education, 221 Conn. App. 325,
329–30, 300 A.3d 1209, cert. denied, 348 Conn. 922, 304
A.3d 147 (2023).
Next, we set forth the principles relevant to the inter-
pretation of an insurance policy. ‘‘When construing an
insurance policy, we look at the [policy] as a whole,
consider all relevant portions together and, if possible,
give operative effect to every provision in order to reach
a reasonable overall result. . . . Insurance policies are
interpreted based on the same rules that govern the
interpretation of contracts. . . . In accordance with
those rules, [t]he determinative question is the intent
of the parties . . . . 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
accorded its natural and ordinary meaning. . . . In
determining whether the terms of an insurance policy
are clear and unambiguous, [a] court will not torture
words to import ambiguity where the ordinary meaning
leaves no room for ambiguity . . . . Similarly, any
ambiguity in a contract must emanate from the language
used in the contract rather than from one party’s subjec-
tive perception of the terms. . . . As with contracts
generally, a provision in an insurance policy is ambigu-
ous when it is reasonably susceptible to more than one
reading. . . . Under those circumstances, any ambigu-
ity in the terms of an insurance policy must be construed
in favor of the insured . . . .’’ (Internal quotation marks
omitted.) Stewart v. Old Republic National Title Ins.
Co., 218 Conn. App. 226, 239–40, 291 A.3d 1051 (2023);
see also Jemiola v. Hartford Casualty Ins. Co., 335
Conn. 117, 128–29, 229 A.3d 84 (2019); Liberty Ins.
Corp. v. Johnson, 222 Conn. App. 656, 665–66, 306 A.3d
1143 (2023). As a general matter, ‘‘[w]hile the insured
bears the burden of proving coverage, the insurer bears
the burden of proving that an exclusion to coverage
applies.’’ Nationwide Mutal Ins. Co. v. Pasiak, 327
Conn. 225, 239, 173 A.3d 888 (2017). Additionally, we
note that, ‘‘[w]hen construing exclusion clauses, the
language should be construed in favor of the insured
unless it has a high degree of certainty that the policy
language clearly and unambiguously excludes the
claim.’’ (Internal quotation marks omitted.) R.T. Vand-
erbilt Co. v. Hartford Accident & Indemnity Co., 333
Conn. 343, 365, 216 A.3d 629 (2019).
The specific language of the insurance policy between
the parties in this case provided in relevant part: ‘‘This
[p]olicy covers property, as described in this [p]olicy,
against ALL RISKS OF PHYSICAL LOSS OR DAMAGE,
except as hereinafter excluded, while located as described
in this [p]olicy.’’ The time element coverage provided:
‘‘This policy insures TIME ELEMENT loss, as provided
in the TIME ELEMENT COVERAGES, directly resulting
from physical loss or damage of the type insured: 1) to
property described elsewhere in this [p]olicy and not
otherwise excluded by this [p]olicy or otherwise limited
in the TIME ELEMENT COVERAGES below . . . .’’ For
these two primary coverages, the maximum limit of liabil-
ity for an occurrence was $1,655,000,000, subject to
certain provisions.
Additionally, the policy included the following con-
tamination exclusion: ‘‘This [p]olicy excludes the fol-
lowing unless directly resulting from other physical
damage not excluded by this [p]olicy: 1) contamination,
and any cost due to contamination including the inabil-
ity to use or occupy property or any cost of making
property safe or suitable for use or occupancy. If con-
tamination due only to the actual and not suspected
presence of contaminant(s) directly results from other
physical damage not excluded by this [p]olicy, then
only physical damage caused by such contamination
may be insured.’’ (Emphasis omitted.) The policy set
forth the following definitions. The term ‘‘contaminant’’
was defined as ‘‘anything that causes contamination’’
which, in turn, was defined as ‘‘any condition of prop-
erty due to the actual or suspected presence of any
foreign substance, impurity, pollutant, hazardous mate-
rial, poison, toxin, pathogen or pathogenic organism,
bacteria, virus, disease causing or illness causing agent,
fungus, mold or mildew [or legionellosis].’’ (Emphasis
added.)
The policy also provided for certain additional cover-
ages,16 including a communicable disease response17
and interruption by communicable disease.18 These two
communicable disease provisions were subject to a $1
million sublimit, in the aggregate, during any policy year
regardless of the number of locations, coverages or
occurrences involved.19 The policy defined ‘‘communi-
cable disease’’ as ‘‘transmissible from human to human
by direct or indirect contact with an affected individual
or the individual’s discharges . . . .’’
It follows that, as the trial court explained, the policy
the plaintiff purchased, like many insurance policies,
begins with a broad promise to cover all risks, but then
subjects and limits coverage with various exclusions.
The policy also contains exceptions to the policy exclu-
sions as well as additional coverage for certain specified
situations, subject to financial limitations.20 Guided by
this approach, we will commence our analysis by
determining whether the plaintiff’s claims (1) fall within
the grant of coverage for physical damage or loss, or
time element loss, and (2) are subject to any exclusions
to those coverages. On the basis of our review of the
relevant policy language and case law, we conclude
that the plaintiff’s claims do not fall within the grant
of coverage for physical loss or damage or time element
loss, and, additionally, are subject to the contamination
exclusion.21
As previously noted, the policy covers the property
described therein against all risks of physical loss or
damage.22 The policy, however, does not define the
phrase ‘‘physical loss or damage.’’ Our Supreme Court
interpreted this language in the context of commercial
insurance policies in Capstone Building Corp. v. Amer-
ican Motorists Ins. Co., 308 Conn. 760, 67 A.3d 961
(2013) (Capstone). That case involved the construction
of the Hilltop student housing complex (Hilltop project)
at the University of Connecticut (UConn). Id., 763. The
plaintiffs in that case served as the general contractor
and project developer for the Hilltop project, while the
defendant was the successor in interest to the insurer
that issued a commercial general liability policy that
insured the plaintiffs and their work on this project.
Id., 763–64. Our Supreme Court concluded, inter alia,
that defective work, standing alone, or repairs to that
defective work, do not constitute property damage and
was not, therefore, covered under the insurance policy.
Id., 764.
In Capstone, UConn notified the plaintiffs of the
alleged defects after discovering elevated levels of car-
bon monoxide in various areas three years after the
completion of the Hilltop project. Id., 767–68. One of
the plaintiffs notified the defendant and demanded that
the defendant defend against UConn’s claims. Id., 768.
The defendant determined that UConn’s claims were
not covered under the policy: ‘‘As the liability at issue
arises out of [one of the plaintiffs’] own work, including
its role as general contractor and heating and plumbing
installation, there can be no coverage for this matter
. . . under the policy.’’ (Internal quotation marks omit-
ted.) Id. Eventually, the plaintiffs and UConn reached a
settlement. Id., 770. The plaintiffs filed separate actions
against the defendant alleging breach of contract and
bad faith; these actions were removed to federal court,
which subsequently certified questions to our Supreme
Court. Id., 770–71.
First, the court concluded that defective workman-
ship can give rise to an occurrence under a commercial
general liability insurance policy. Id., 776. It then turned
to the term ‘‘property damage,’’ which was defined in
the policy as ‘‘[p]hysical injury to tangible property,
including all resulting loss of use of that property’’ and
‘‘[l]oss of use of tangible property that is not physically
injured.’’ (Internal quotation marks omitted.) Id., 776–
77. In addressing whether the presence of carbon mon-
oxide, an odorless gas, constituted ‘‘property damage,’’
our Supreme Court concluded that it was not. Id., 782.
Relying on the reasoning set forth in a decision from
the New Hampshire Supreme Court,23 it concluded that
the gas ‘‘[c]aused no physical, tangible alteration to any
property . . . .’’ (Internal quotation marks omitted.)
Id., 782–83.
Our Supreme Court subsequently applied the Cap-
stone reasoning in the context of COVID-19 in both
Connecticut Dermatology Group, PC v. Twin City Fire
Ins. Co., supra, 346 Conn. 33, and Hartford Fire Ins.
Co. v. Moda, LLC, supra, 346 Conn. 64. In the former,
the court identified the dispositive issue as ‘‘whether a
property insurance policy providing coverage for direct
physical loss of or physical damage to covered property
provides coverage for business income losses arising
from the suspension of business operations during the
COVID-19 pandemic.’’ (Internal quotation marks omit-
ted.) Connecticut Dermatology Group, PC v. Twin
City Fire Ins. Co., supra, 36. In that case, three plaintiffs
that owned and operated health care facilities at various
locations in Connecticut suspended their business oper-
ations during the COVID-19 pandemic and suffered lost
business income and additional expenses; id.; including
daily sanitation and the erection of physical barriers
for the protection of patients and staff. Id., 38–39. The
plaintiffs filed claims against their respective insurance
companies. Id., 36. The defendant insurance companies
denied the claims on the basis that the coronavirus did
not cause property damage. Id., 39. The plaintiffs filed
actions seeking, inter alia, a declaratory judgment that
the defendants were obligated to provide coverage. Id.
In their answer, the defendants denied the substantive
allegations in the plaintiffs’ complaint and raised a spe-
cial defense that the claims were excluded by a virus
exclusion contained in the policy.24 Id., 39–40.
Both the plaintiffs and the defendants moved for sum-
mary judgment. Id., 40. The defendants argued that no
genuine issue of material fact existed as to whether the
insurance policies covered the claimed losses because
there was no direct physical loss or physical damage to
any covered property. Id. Furthermore, the defendants
claimed that, even if a covered loss had occurred, it
was subject to the virus exclusion contained in the
policies. Id. The trial court rendered summary judgment
in favor of the defendants on the basis of the virus
exclusion. Id.
On appeal, the plaintiffs contended that the trial court
improperly rendered summary judgment in favor of the
defendants on the basis of the virus exclusion. Id. The
defendants disagreed with the plaintiffs’ appellate claim;
further, they argued ‘‘as an alternative ground for
affirmance, that the insurance policies did not cover the
losses because there was no direct physical loss or physical
damage to any property covered by the policies.’’ (Internal
quotation marks omitted.) Id. Our Supreme Court agreed
with the defendants’ alternative ground of affirmance
and determined, therefore, that it did not need to
address whether the virus exclusion precluded cover-
age. Id., 40–41.
The court began its analysis with the relevant policy
language of the insurance policies, stating: ‘‘Although
this court has not previously construed this specific
policy language, we considered the meaning of a similar
policy provision in Capstone Building Corp. v. Ameri-
can Motorist Ins. Co., [supra, 308 Conn. 760]. . . . We
rejected the plaintiffs’ claim in Capstone that this provi-
sion entitled them to coverage for the loss of the use
of defectively installed chimneys, which resulted in the
escape of carbon monoxide into the building, on the
ground that the gas caused no physical, tangible alter-
ation to any property, and, therefore, under the plain
language of the policy provision, the loss of use of the
defective chimneys, standing alone, did not constitute
property damage . . . . ’’25 (Citation omitted; internal
quotation marks omitted.) Connecticut Dermatology
Group, PC v. Twin City Ins. Co., supra, 346 Conn. 43–
44.
Next, our Supreme Court considered a decision from
the United States Court of Appeals for the Second Cir-
cuit, Farmington Village Dental Associates, LLC v.
Cincinnati Ins. Co., Docket No. 21-2080-cv, 2022 WL
2062280, *1 (2d Cir. June 8, 2022), which extrapolated
the reasoning from Capstone and ‘‘concluded that,
under Connecticut law, a policy covering accidental
physical loss or accidental physical damage to property
did not cover a loss incurred as a result of the suspen-
sion of business operations during the COVID-19 pan-
demic because the loss was not physical, and the virus
did not tangibly alter the property.’’ (Internal quotation
marks omitted.) Connecticut Dermatology Group, PC
v. Twin City Fire Ins. Co., supra, 346 Conn. 44. The
court then emphasized that ‘‘[t]he overwhelming major-
ity of federal and state courts construing language simi-
lar or identical to the language contained in the policies
at issue in the present case have reached the same
conclusion.’’26 Id., 44–45.
The court also considered other language in the pol-
icy, specifically, the provision regarding the ‘‘period of
restoration,’’ which provided that the loss of business
income was covered when the property was repaired,
rebuilt, or replaced. Id., 49–50. ‘‘These terms strongly
imply that a direct physical loss, unlike a loss resulting
from the necessary suspension of business operations
to avoid the transmission of a communicable disease,
is one that involves a physical alteration of the property
such that the property is susceptible to being restored
to its original condition.’’ (Internal quotation marks
omitted.) Id., 50.
Ultimately, our Supreme Court concluded ‘‘that the
plain meaning of the term direct physical loss of . . .
[p]roperty does not include the suspension of business
operations on a physically unaltered property in order
to prevent the transmission of the coronavirus. Rather,
in ordinary usage, the phrase direct physical loss of
. . . [p]roperty clearly and unambiguously means
that there must be some physical, tangible alteration
to or deprivation of the property that renders it physi-
cally unusable or inaccessible.’’ (Emphasis added;
internal quotation marks omitted.) Id., 51.
Finally, the court addressed the arguments the plain-
tiffs presented. Significantly, it concluded that there
was nothing in the record to indicate that the plaintiffs’
property had undergone a ‘‘physical transformation’’ as
a result of the COVID-19 pandemic that transformed
‘‘ordinary business properties into potential viral incu-
bators that were imminently dangerous to human
beings.’’ (Internal quotation marks omitted.) Id., 52. Our
Supreme Court observed that, as a result of the COVID-
19 pandemic, there was a change to governmental and
societal expectations and behaviors that negatively
impacted the plaintiffs’ businesses. Id. Additionally, our
Supreme Court explained that a loss of use of property
was not the same as the loss of property. Id., 53–54.
Additionally, the court rejected the plaintiffs’ con-
tention that the construction of physical barriers and
the purchase of additional personal protective equip-
ment were repairs to the property. Id., 55. ‘‘We conclude
that, just as the properties were not physically altered
in any way by the COVID-19 pandemic, the plaintiffs’
activities designed to prevent the transmission of the
coronavirus on the properties were not ‘repairs’ in any
ordinary sense of the word.’’ Id.
Furthermore, the court was not persuaded by the
plaintiffs’ reliance on cases that have held that contami-
nation of property by harmful substances or bacteria
constitutes a direct physical loss. Id., 58. First, the court
noted that the plaintiffs had not claimed an actual coro-
navirus contamination or that their business had been
closed due to the actual presence of the virus. Id., 58–59.
Second, ‘‘[i]n any event, even if the plaintiffs had claimed
that their properties were actually contaminated by the
coronavirus, we find persuasive the cases that have
held that the virus is not the type of physical contami-
nant that creates the risk of a direct physical loss
because, once a contaminated surface is cleaned or
simply left alone for a few days, it no longer poses any
physical threat to occupants.’’27 Id., 59. On the basis of
this reasoning, our Supreme Court affirmed the sum-
mary judgment rendered in favor of the defendants.
Id., 64.
Our Supreme Court similarly affirmed the summary
judgment rendered in favor of the insurance company
in Hartford Fire Ins. Co. v. Moda, LLC, supra, 346
Conn. 67, in which it also considered whether business
losses suffered during the COVID-19 pandemic were
covered by insurance for direct physical loss of or direct
physical damage to property. In that case, the defen-
dants purchased two insurance policies from the plain-
tiff: a package policy, which covered direct physical
loss of or direct physical damage to covered property,
namely, a spring line of shoes sold to department stores
and other retailers; and a marine policy that covered
the shoes from direct physical loss or direct physical
damage from any external cause, subject to certain
exclusions, while they were in transit and storage. Id.,
68–69. The plaintiff insurer moved for summary judg-
ment, arguing that, under either policy, the defendants
had not suffered a direct physical loss of or direct physi-
cal damage to property and that the virus exclusion
applied with respect to the package policy. Id., 70. The
trial court granted the plaintiff’s motion for summary
judgment, determining that the virus exclusion applied,
and, in the case of the marine policy, coverage was
limited to physical damage to the property itself under
New York law. Id., 70–71.
On appeal, the court relied on the holding from Con-
necticut Dermatology Group, PC v. Twin City Fire Ins.
Co., supra, 346 Conn. 36–37, that, under nearly identical
policy language, there must be some physical, tangible
alteration to, or deprivation of property, rendering it
physically unusable or inaccessible; mere loss of use or
access was insufficient, and, therefore, the defendants’
claims of loss were without merit. Hartford Fire Ins.
Co. v. Moda, LLC, supra, 346 Conn. 72–73. ‘‘That claim
fails as a matter of law because the losses . . . suffered
did not result from any tangible physical alteration to
[the] stock or real property. Rather, those losses resulted
from a transformation in governmental and societal
expectations and behavior that had a seriously negative
impact on [the] businesses. . . . The plain language of
the package policy does not provide coverage for such
losses.’’ (Citation omitted; internal quotation marks
omitted.) Id., 73. The court further explained that
‘‘[c]ontamination with the SARS-CoV-2 virus, even if
it could be proved, is not sufficient to establish that
the shoes were physically lost or damaged within the
meaning of the package policy.’’ (Emphasis added.)
Id., 74.
With respect to the marine policy, our Supreme Court
applied the law of New York to conclude that ‘‘such
language does not describe business income losses
incurred as a result of COVID-19 related closures [when]
the insured property itself was not alleged or shown to
have suffered direct physical loss or physical damage.’’
(Internal quotation marks omitted.) Id., 76. Ultimately,
our Supreme Court determined that the defendants’
losses were not covered by either insurance policy, and,
therefore, the trial court properly rendered summary
judgment in favor of the plaintiff. Id., 79.
Having reviewed the precedent from our Supreme
Court regarding property insurance policies and claims
of business income loss arising from the suspension of
business operations due to COVID-19, we return to the
specific policy language in the present case. As we
previously have noted, the policy sold to the plaintiff
by the defendant covered property from all risks of
physical loss or damage, and time element losses, but
the requisite predicate for this coverage was physical
loss or damage to covered property. We acknowledge
that this policy’s language is not identical to that of the
policies in CT Dermatology or Moda. See, e.g., Connect-
icut Dermatology Group, PC v. Twin City Fire Ins.
Co., supra, 346 Conn. 37 (defendants will pay for direct
physical loss of or physical damage to covered property
and actual loss of business income sustained due to
necessary suspension of operations during period of
restoration and for reasonable and necessary extra
expenses incurred during period of restoration that it
would not have incurred if there had been no direct
physical loss or physical damage to covered property);
Hartford Fire Ins. Co. v. Moda, LLC, supra, 346 Conn.
68–69 (package and marine policies covered direct
physical loss of or direct physical damage to covered
property and loss of business income incurred due to
necessary interruption of business operations due to
period of restoration due to direct physical loss of or
direct physical damage). We conclude, however, that
the physical loss or damage language in the present
case is sufficiently similar to the language of the policies
at issue in CT Dermatology and Moda. We emphasize,
therefore, that, in order to obtain coverage, the plaintiff
must allege facts showing ‘‘some physical, tangible
alteration to or deprivation of the property that renders
it physically unusable or inaccessible.’’ (Emphasis added.)
Connecticut Dermatology Group, PC v. Twin City Fire
Ins. Co., supra, 51.
In the operative complaint in the present case, the
plaintiff alleged in a conclusory fashion that COVID-19
caused a physical, tangible alteration to property. The
plaintiff, however, failed to allege facts showing the
manner in which this alteration occurred. We note that,
although the facts alleged in a complaint are deemed
admitted for the purposes of ruling on a motion to
strike, legal conclusions are not. Seramonte Associates,
LLC v. Hamden, 202 Conn. App. 467, 481, 246 A.3d 513
(2021), aff’d, 345 Conn. 76, 282 A.3d 1253 (2022). Stated
differently, ‘‘[a] motion to strike is properly granted if
the complaint alleges mere conclusions of law that are
unsupported by the facts alleged.’’ (Internal quotation
marks omitted.) Id.; see Bridgeport Harbour Place I,
LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011);
Sempey v. Stamford Hospital, 194 Conn. App. 505, 513,
221 A.3d 839 (2019); see also Perez v. Carlevaro, 158
Conn. App. 716, 726, 120 A.3d 1265 (2015) (legal conclu-
sion pleaded in complaint disregarded if inconsistent
with or unsupported by facts alleged). It is, therefore,
insufficient for the plaintiff merely to assert in its com-
plaint that a physical, tangible alteration to its property
has occurred due to COVID-19.
The plaintiff further alleged that COVID-19 can
remain viable on objects or surfaces for up to twenty-
eight days. It claimed that the prospect of COVID-19
being present on the property ‘‘is a risk of direct physical
loss or damage, and it causes physical loss or damage
to property’’ and then reasserted that the presence of
COVID-19 caused a physical, tangible alteration to the
property. In several more instances, the plaintiff offered
the conclusory allegation that COVID-19 caused a risk
of physical loss or damage to property, or the presence
of COVID-19 was a risk of physical loss or damage.
Furthermore, the operative complaint baldly stated that
COVID-19 caused the plaintiff to sustain time element
loss as a direct result of physical loss and damage.28
Given our Supreme Court’s reasoning in Connecticut
Dermatology Group, PC v. Twin City Fire Ins. Co.,
supra, 346 Conn 33, and Hartford Fire Ins. Co. v. Moda,
LLC, supra, 346 Conn. 64, the allegations set forth in
the plaintiff’s operative complaint are insufficient to
establish physical risk or loss, which is required to
trigger coverage under the policy for property damage
or time element loss. The plaintiffs have not sufficiently
alleged that COVID-19 causes some physical, tangible
alteration to or results in the deprivation of property
that renders it physically unusable or inaccessible. See
Connecticut Dermatology Group, PC v. Twin City Fire
Ins. Co., supra, 51. Again, ‘‘use of property and property
are not the same thing, and the loss of the former does
not necessarily imply the loss of the latter.’’ (Internal
quotation marks omitted.) Id., 53. As our Supreme Court
explained, the SARS-CoV-2 virus is not the type of physi-
cal contaminant that creates the risk of physical loss
because, once the contaminated surface is cleaned, or
simply left alone for a few days, it no longer presents
a threat to occupants. See id., 59.
In addition to the binding precedent from our Supreme
Court,29 we note that a substantial number of decisions
from state and federal courts have concluded that the
presence of COVID-19 does not constitute physical dam-
age or loss to trigger coverage under insurance policies
akin to the one in the present case. For example, in
10012 Holdings, Inc. v. Sentinel Ins. Co., Ltd., 21 F.4th
216, 218–20 (2d Cir. 2021), the United States Court of
Appeals for the Second Circuit considered whether the
District Court, applying the law of New York, properly
dismissed the plaintiff’s claims for insurance coverage
following the forced suspension of its business opera-
tions. The central issue on appeal was whether the
policy provided coverage for these losses, even though
the plaintiff had not alleged that its closure had resulted
from physical damage to its property or adjoining prop-
erty. Id., 220. Applying the reasoning from a New York
state appellate court decision,30 which required direct
physical damage to property to trigger coverage, the
Second Circuit concluded that the motion to dismiss
properly had been granted. Id., 220–21. Additionally,
the Second Circuit observed: ‘‘We are unaware of any
contrary authority in New York that diverges from [this]
holding . . . which state and federal courts in New
York have (at either the motion to dismiss stage or on
summary judgment) uniformly applied since the start of
the COVID-19 pandemic to deny coverage under similar
insurance provisions where insured property was not
alleged or shown to have suffered direct physical loss
or physical damages.’’31 (Citations omitted.) Id., 221.
Cases from other jurisdictions also have reached the
same conclusion with respect to this issue. For exam-
ple, the United States Court of Appeals for the First
Circuit recently addressed the issue of whether, under
Massachusetts law, the plaintiff had failed to state a
claim that the SARS-CoV-2 virus caused direct physical
loss of or damage to property in Lawrence General
Hospital v. Continental Casualty Co., 90 F.4th 593 (1st
Cir. 2024). The insurance policy in that case provided
‘‘broad coverage for direct physical loss of or damage
to property.’’ (Internal quotation marks omitted.) Id.,
595–96. The plaintiff hospital alleged that it suffered
physical loss of and damage to its property due to the
continuous reintroduction of SARS-CoV-2 particles,
which chemically bonded to surfaces, making them hard
to detach. Id., 596.
The First Circuit considered a trilogy of cases32
decided under Massachusetts state law to determine
whether the hospital’s allegations would survive a motion
to dismiss for failure to state a claim under the Federal
Rules of Civil Procedure. Id., 599. First, the court noted
that property does not sustain physical loss or damage
unless (1) it needs to be actively repaired or undergo
remediation measures to correct the claimed damage
or (2) the business must be moved to a new location.
Id. It further explained that direct physical loss of or
damage to property ‘‘requires some distinct, demonstra-
ble, physical alteration of the property . . . and of
course property cannot repair itself. . . . By contrast,
the [e]vanescent presence of a harmful airborne sub-
stance that will quickly dissipate on its own, or surface-
level contamination that can be removed by simple
cleaning, does not physically alter or affect property.’’
(Citations omitted; internal quotation marks omitted.)
Id., 600. The court emphasized that the dissipation of
the virus on its own and the removal of surface level
contamination by simply cleaning supported the conclu-
sion that the virus did not cause property damage,
despite more detailed allegations in those other cases.
Id. Ultimately, the First Circuit, relying on the facts that
(1) direct physical loss of or damage to property exists
only if a party must take active efforts to repair it and
SARS-CoV-2 particles dissipate or become noninfec-
tious within seven to twenty-eight days, effectively
resulting in the ‘‘repair’’ of any ‘‘damage’’ to the property
without intervention, (2) the presence of the virus was
distinguishable from other contaminants such as ammo-
nia and gasoline, and (3) ‘‘the clear consensus of courts
throughout the country, which cuts against [the hospi-
tal] and demonstrates the flaws in its arguments,’’ con-
cluded that the District Court properly had granted the
motion to dismiss filed by the defendant.33 Id., 601–602.
In its efforts to distinguish the present case from the
binding precedent of our Supreme Court, as well as the
reasoning of the legion of federal and state cases, the
plaintiff asserts that the insurance policy at issue here
provides that the presence of a communicable disease
at a covered property constitutes a physical loss or
damage that is insured.34 Specifically, the plaintiff points
to the first line of the ‘‘Additional Coverages’’ section
of the policy, which states: ‘‘This [p]olicy includes the
following [a]dditional [c]overages for insured physical
loss or damage.’’ (Emphasis added.) One such addi-
tional coverage is the communicable disease response.
The plaintiff argues, therefore, that given this prefatory
language, the presence of a communicable disease con-
stitutes insured physical loss or damage under the lan-
guage of the policy.
We disagree with the plaintiff’s attempt to classify
the actual presence of a communicable disease as a
physical loss or damage under the policy language. The
communicable disease response coverage extension
does not require physical loss or damage. That specific
section of the policy is triggered if a location owned,
leased or rented by the plaintiff has the actual, not
suspected, presence of a communicable disease and
access to such location is limited, restricted, or prohib-
ited by either an order of an officer of the plaintiff
or an authorized governmental agency regulating the
actual presence of a communicable disease. Further-
more, this extension covers only reasonable and neces-
sary costs for the cleanup, removal, and disposal of
the actual presence of a communicable disease from
insured property and the actual costs of fees for a public
relations service or the use of employees for reputation
management. On the basis of the entirety of the policy
language,35 including the communicable disease provi-
sions that provide coverage distinct from the property
damage and time element coverages, we are not per-
suaded by the plaintiff’s efforts to establish that, under
this policy, the actual presence of a communicable dis-
ease constitutes physical loss or damage. Simply stated,
we agree with the defendant that ‘‘disease outbreaks
are a different sort of risk than physical loss or damage.’’
See, e.g., Froedtert Health, Inc. v. Factory Mutual Ins.
Co., 620 F. Supp. 3d 811, 816–17 (E.D. Wis. 2022) (prefa-
tory language in communicable disease response exten-
sion of insurance policy, without more, did not plausibly
suggest that parties had agreed that communicable dis-
ease such as COVID-19, caused physical loss or dam-
age).
Next, the plaintiff argues that the issue of whether
COVID-19 physically alters property cannot be deter-
mined at the motion to strike phase of the litigation.
We disagree. First, in Connecticut Dermatology Group,
PC v. Twin City Fire Ins. Co., supra, 346 Conn. 52, our
Supreme Court, albeit in the context of a motion for
summary judgment,36 determined that the properties in
that case were not altered as a result of the COVID-19
pandemic. Specifically, it explained that this pandemic
caused a transformation in governmental and societal
expectations and behaviors that negatively impacted
business in a substantial manner; in other words, the
‘‘property did not change . . . [t]he world around it
did.’’ (Internal quotation marks omitted.) Id. Addition-
ally, our Supreme Court explained that, ‘‘[i]n any event,
even if the plaintiffs had claimed that their properties
were actually contaminated by the coronavirus, we
find persuasive the cases that have held that the virus
is not the type of physical contamination that creates
the risk of a direct physical loss because, once a contam-
inated surface is cleaned or simply left alone for a few
days, it no longer poses any physical threat to occu-
pants.’’ (Emphasis added.) Id., 59. Similarly, in Hartford
Fire Ins. Co. v. Moda, LLC, supra, 346 Conn. 74, the
court wrote: ‘‘Contamination with the SARS-CoV-2
virus, even if it could be proved, is not sufficient to
establish that the shoes were physically lost or dam-
aged within the meaning of the package policy.’’
(Emphasis added.) Given this language, we conclude
that the holdings and reasoning set forth in these cases
apply to the present appeal, despite the different proce-
dural contexts.
Second, courts, even at the pleading stage have con-
cluded that COVID-19 does not physically alter prop-
erty. See Dr. Jeffrey Milton, DDS, Inc. v. Hartford
Casualty Ins. Co., 588 F. Supp. 3d 266, 277 (D. Conn.
2022); Connecticut Children’s Medical Center v. Conti-
nental Casualty Co., 581 F. Supp. 3d 385, 391–93 (D.
Conn. 2022), aff’d, United States Court of Appeals,
Docket No. 22-322 (2d Cir. April 17, 2023); Cosmetic
Laser, Inc. v. Twin City Fire Ins. Co., 554 F. Supp. 3d
389, 407 (D. Conn. 2021).
Third, we note that in its complaint the plaintiff
pleaded only conclusory allegations that COVID-19
causes a physical, tangible alteration to property and
listed several types of property thereby affected but
did not provide any specifics as to how the property
purportedly was altered. See, e.g., Wynn Resorts, Ltd.
v. Factory Mutual Ins. Co., United States District Court,
Docket No. 2:21-cv-01230 (CDS-EJY) 2023 WL 5319772,
*3 (D. Nev. August 10, 2023) (complaint failed to specifi-
cally identify what physical loss or damage was caused
by respiratory droplets or how virus caused physical
alteration of property). This type of legal conclusion is
insufficient to state a claim under our law. ‘‘A [motion
to strike] . . . does not admit legal conclusions.’’
(Internal quotation marks omitted.) Desmond v. Yale-
New Haven Hospital, Inc., 212 Conn. App. 274, 284,
275 A.3d 735, cert. denied, 343 Conn. 931, 276 A.3d
433 (2022). We conclude, therefore, that the plaintiff’s
efforts to distinguish Connecticut Dermatology Group,
PC v. Twin City Fire Ins. Co., supra, 346 Conn. 33, and
Hartford Fire Ins. Co. v. Moda, LLC, supra, 346 Conn.
66, are unavailing and that, pursuant to the reasoning
set forth in those cases, it was proper for the court to
strike the counts in the plaintiff’s operative complaint.
Additionally, we agree with the reasoning set forth
in the trial court’s memorandum of decision regarding
the applicability of the contamination exclusion. As the
court observed, ‘‘[c]osts caused by a virus are the very
thing the policy does not cover by virtue of the contami-
nation exclusion. Any argument that simply brings you
back to costs caused by the virus brings you back to
the costs that are expressly excluded. By definition,
damage from the virus cannot be directly resulting from
other physical damage not excluded by this policy.’’
(Emphasis omitted; internal quotation marks omitted.)
The trial court’s ultimate determination to grant, in part,
the defendant’s motion to strike rested on this reasoning
regarding the contamination exclusion.
The relevant language of the policy provides: ‘‘This
[p]olicy excludes the following unless directly resulting
from other physical damage not excluded by this [p]ol-
icy: 1) contamination, and any cost due to contamina-
tion, including the inability to use or occupy property
or any cost of making property safe or suitable for use
or occupancy. If contamination due only to the actual
not suspected presence of contaminant(s) directly
results from other physical damage not excluded by
this [p]olicy, then only physical damage caused by such
contamination may be insured.’’ (Emphasis omitted.)
The policy defines contamination 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 organ-
ism, bacteria, virus, disease causing or illness causing
agent, fungus, mold or mildew.’’ On the basis of this
plain language, therefore, it is clear that the policy spe-
cifically excludes coverage for any cost for the condi-
tion of property due to the actual or suspected presence
of a virus such as SARS-CoV-2, unless it directly resulted
from other physical damage not excluded.
We are mindful that, ‘‘[i]n an insurance policy, an
exclusion is a provision which eliminates coverage
where, were it not for the exclusion, coverage would
have existed.’’ (Internal quotation marks omitted.) Vik-
ing Construction, Inc. v. 777 Residential, LLC, 190
Conn. App. 245, 255, 210 A.3d 654, cert. denied, 333
Conn. 904, 214 A.3d 381 (2019). Such clauses are valid,
as parties to an insurance contract have the right to
qualify or limit the liability of the insurer in any manner
that remains consistent with our law and does not vio-
late public policy. Hammer v. Lumberman’s Mutual
Casualty Co., 214 Conn. 573, 588, 573 A.2d 699 (1990).
The policy in the present case contains clear and
unambiguous language that excludes costs resulting
from the SARS-CoV-2 virus from the physical loss or
damage and time element coverages. Numerous federal
and state cases have relied upon the similar policy lan-
guage to reach this conclusion.37 As noted by Judge
Dooley in One40 Beauty Lounge, LLC v. Sentinel Ins.
Co., Docket No. 3:20-CV-00643 (KAD), 2021 WL 5206387,
*2 (D. Conn. November 9, 2021), appeal withdrawn,
United States Court of Appeals, Docket No. 21-3007 (2d
Cir. April 25, 2022), ‘‘[t]he [c]ourt does not write on a
blank slate. Indeed, numerous courts have examined
identical policy provisions and determined the [v]irus
[e]xclusion is unambiguous and applies to claims aris-
ing out of losses caused by the COVID-19 virus.’’38
The plaintiff, however, argues that the contamination
exclusion does not apply to a communicable disease,
such as COVID-19. As we have noted in this opinion,
contamination is defined by the policy as any condition
of property due to the actual or suspected presence of
any foreign substance including, inter alia, bacteria, a
virus, or a disease or illness causing agent. The plaintiff
argues that a communicable disease, defined by the
policy as a disease transmissible from human to human
by direct or indirect contact with an affected individual
or the individual’s discharges or legionellosis, is not
a contaminant. It further claims that COVID-19 is a
communicable disease, and it reasserts the contentions
that the policy treats it as physical damage to the prop-
erty and, therefore, the contamination exception does
not apply. This argument, however, is plagued with
several flaws.
First, the plaintiff’s attempts to draw a bright-line
distinction between the virus SARS-CoV-2 and the com-
municable disease COVID-19 are betrayed by the allega-
tions in the operative complaint in which the plaintiff
inextricably intertwined the two.39 Specifically, the
plaintiff alleged that ‘‘SARS-CoV-2 causes COVID-19, a
disease that attacks the respiratory system and causes
other harm to humans. SARS-CoV-2 and COVID-19 are
collectively referred to in this complaint as COVID-
19.’’ (Emphasis added.) Second, we already have
rejected the plaintiff’s claim that a communicable dis-
ease such as COVID-19, under the language of this pol-
icy, constitutes a physical loss or damage to covered
property. The plaintiff’s reliance on the language that
the contamination exclusion does not apply if the con-
tamination directly results from other physical damage
not excluded is, therefore, unfounded. Third, in consid-
ering the policy language as a whole, it is clear that the
definition of communicable disease is to determine the
applicability of the communicable disease provisions,
and their corresponding sublimit of $1 million, while
the contamination exclusion, and the definition of con-
taminant, is used to determine whether a claim is gener-
ally excluded from the property damage and time ele-
ment coverages.40 For these reasons, we conclude that
the court properly concluded that the contamination
exclusion in the present case applied and defeated the
plaintiff’s claims for coverage under the property dam-
age and time element coverages. For the reasons set
forth herein, we conclude that the court properly
granted the defendant’s motion to strike.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The policy states that it is governed by the laws of Connecticut.
2
The policy states that it insures against time element loss directly
resulting from physical loss or damage of the type insured ‘‘1) to property
described elsewhere in this [p]olicy and not otherwise excluded by this
[p]olicy or otherwise limited in the TIME ELEMENT COVERAGES below;
2) used by the [plaintiff], or for which the [plaintiff] has contracted use; 3)
while located as described in the INSURANCE PROVIDED provision or
within 1,000 feet/300 metres thereof, or as described in the TEMPORARY
REMOVAL OF PROPERTY provision; or 4) while in transit as provided by
this [p]olicy, and 5) during the [p]eriods of [l]iability described in this section,
provided such loss or damage is not at a contingent time element location.’’
(Emphasis omitted.)
We note that the Supreme Court of Maryland, in interpreting a nearly
identical insurance policy issued by the defendant to a different insured,
explained that ‘‘time element coverage is sometimes referred to as business
interruption or business loss coverage.’’ Tapestry, Inc. v. Factory Mutual
Ins. Co., 482 Md. 223, 233 n.6, 286 A.3d 1044 (2022); see also Schleicher &
Stebbins Hotels, LLC v. Starr Surplus Lines Ins. Co., 175 N.H. 744, 750–51,
302 A.3d 67 (2023) (time element coverage protects against consequences
of loss, not damage to property itself).
3
See, e.g., Yale University v. Cigna Ins. Co., 224 F. Supp. 2d 402, 412
(D. Conn. 2002) (property insurance coverage is triggered by threshold
concept of injury to insured property, frequently physical loss or damage);
see also Procaccianti Cos. v. Zurich American Ins. Co., Docket No. C.A.
20-512 (WES), 2023 WL 3536233, *2 (D. R.I. May 18, 2023) (to obtain coverage,
plaintiffs required to demonstrate they suffered direct physical loss or dam-
age to property).
4
A recent Superior Court decision noted: ‘‘COVID-19 (coronavirus disease
2019) is a disease caused by a virus named SARS-CoV-2. It can be very
contagious and spreads quickly. Over one million people have died from
COVID-19 in the United States. COVID-19 most often causes respiratory
symptoms that can feel much like a cold, the flu, or pneumonia. COVID-19
may attack more than your lungs and respiratory system. Other parts of
your body may also be affected by the disease. Centers for Disease Control
and Prevention, About Covid-19, (last modified July 10, 2023), available
online at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-
covid-19/basics-covid-19.html (last visited July 25, 2023).’’ (Internal quotation
marks omitted.) American Rag Cie, LLC v. Hartford Fire Ins. Co., Superior
Court, judicial district of Hartford, Complex Litigation Docket No. X07-CV-
XX-XXXXXXX-S (August 1, 2023); see also Manginelli v. Regency House of
Wallingford, Inc., 347 Conn. 581, 594 n.7, 298 A.3d 263 (2023) (summarizing
events at beginning of COVID-19 pandemic).
5
Specifically, the plaintiff alleged the following: ‘‘The physical alteration,
damage, and impairment described herein includes, but is not limited to,
damage to:
‘‘a. In the restaurants: cooking equipment and appliances, storage equip-
ment, signs, menus, ovens, microwaves, refrigerators, freezers, ice machines,
napkins, utensils, measuring cups and spoons, utensils, plates, cups, saucers,
scales, thermometers, timers, aprons, soda dispensers, bar, glasses, bottles
of alcohol, and containers, among other items.
‘‘b. In the retail outlets: retail merchandise, signs, shelves, displays, count-
ers, clothes hangers, boxes, packaging, and bags, among other items.
‘‘c. In the casinos: tables, chairs, lights, displays, cards, chips, dice, cards,
cups, containers, slot machines, games, screens, handles, and money, among
other items.
‘‘d. In the spas: tables, chairs, bottles, packaging, curtains, showers, tubs,
cushions, blankets, pillows, towels, linens, cups, glasses, coolers, pitchers,
and trays, among other items.
‘‘e. In the hotels: beds, linens, key cards, remotes, handles, tables, desks,
chairs, lamps, switches, curtains, blinds, cords, luggage racks, irons, ironing
boards, shelves, toilet paper, paper towels, cups, soap boxes, shampoo
bottles, conditioner bottles, lotion bottles, bells, desks, signs, pillows, pens,
paper, cleaning supplies, elevators, bell carts, housekeeping carts, housekeeping
supplies, mops, brooms, bottles, rags, and clothes, among other items.
‘‘f. At all locations: lighting fixtures, cash registers, computers, tables,
chairs, couches, stools, curtains, blinds, doors, door handles, carts, count-
ertops, display cases, shelving, uniforms, floors, windows, fans, mirrors,
decorative items, pictures, frames, sinks, faucets, faucet handles, soap dis-
pensers, papers towels, paper towel holders, toilets, urinals, and trash cans,
among other items.’’
6
The plaintiff alleged that the defendant ‘‘denied or effectively denied
coverage for that claim and did so in bad faith based on apparent systematic
company practices designed to avoid or minimize payments for covered
COVID-19 claims.’’
7
Specifically, the plaintiff requested ‘‘a declaration from the court that:
(a) the various coverage provisions identified herein are triggered by the
[plaintiff’s] claims; (b) the policy covers the [plaintiff’s] claims; (c) the
[plaintiff] sustained direct physical loss or damage from a covered cause
of loss under this policy; (d) [the defendant] waived or is estopped from
asserting its positions, as described above, to bar or limit coverage for the
[plaintiff’s] claims; (e) no exclusion applies to bar or limit coverage for the
[plaintiff’s] claims; and (f) granting any other declaratory relief useful to
resolving the dispute between the parties.’’
8
The plaintiff alleged that it had ‘‘complied with all applicable policy
provisions and any other requirements; or, [the defendant] waived those
provisions or any such requirements or is estopped from asserting any
purported noncompliance with those provisions or any such requirements.
. . . [The defendant] breached the policy by improperly denying coverage
to the [plaintiff] or otherwise repudiating [the defendant’s] obligation to
cover the [plaintiff’s] losses and expenses as expressly required under
the policy.’’
9
The plaintiff alleged that the defendant acted in bad faith in its refusal
to provide coverage and in its handling of the plaintiff’s claims. Additionally,
it asserted that the defendant ‘‘had a dishonest purpose, sinister motive, or
malicious intent.’’
10
The plaintiff alleged, inter alia, that the defendant had engaged in unfair
or deceptive acts by engaging in unfair practices pursuant to the Connecticut
Unfair Insurance Practices Act, General Statutes § 38a-816 et seq.
11
‘‘A complaint includes all exhibits attached thereto. Streicher v. Resch,
20 Conn. App. 714, 716, 570 A.2d 230 (1990); Practice Book § 10-29.’’ Dlugo-
kecki v. Vieira, 98 Conn. App. 252, 258 n.3, 907 A.2d 1269, cert. denied, 280
Conn. 951, 912 A.2d 483 (2006).
12
‘‘Provisions in insurance policies excepting particular losses from the
coverage thereof are ordinarily valid, for the parties to a contract of insurance
have the right to limit or qualify the extent of the insurer’s liability in any
manner not inconsistent with statutory forms or provisions or contrary to
public policy. . . . The reason for or purpose of an exclusion clause in a
policy is to eliminate from coverage specified losses . . . which except for
the exclusion clause would remain under the coverage. . . . In an insurance
policy, an exclusion is a provision which eliminates coverage where, were
it not for the exclusion, coverage would have existed. . . . [T]he word
exclusion signifies . . . circumstances in which the insurance company will
not assume liability for a specific risk or hazard that otherwise would be
included within the general scope of the policy.’’ (Citations omitted; internal
quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co.,
214 Conn. 573, 588–89, 573 A.2d 699 (1990); see also Viking Construction,
Inc. v. 777 Residential, LLC, 190 Conn. App. 245, 255, 210 A.3d 654, cert.
denied, 333 Conn. 904, 214 A.3d 381 (2019).
13
We note that the United States Court of Appeals for the Tenth Circuit
recently observed: ‘‘Just because the policy excludes all-risk and business-
interruption coverage for viruses like COVID-19 does not mean it cannot also
provide additional, limited coverage under separate provisions.’’ Monarch
Casino & Resort, Inc. v. Affiliated FM Ins. Co., 85 F.4th 1034, 1041 (10th
Cir. 2023).
14
‘‘As a general rule, [a]fter a court has granted a motion to strike, the
plaintiff may either amend his pleading [pursuant to Practice Book § 10-44]
or, on the rendering of judgment, file an appeal. . . . The choices are mutu-
ally exclusive [as] [t]he filing of an amended pleading operates as a waiver
of the right to claim that there was error in the sustaining of the [motion
to strike] the original pleading.’’ (Internal quotation marks omitted.) Lavette
v. Stanley Black & Decker, Inc., 213 Conn. App. 463, 469 n.6, 278 A.3d 1072
(2022); see also Tunick v. Tunick, 217 Conn. App. 106, 111 n.6, 287 A.3d
1132 (2022).
15
Practice Book § 10-39 (a) provides in relevant part: ‘‘A motion to strike
shall be used whenever any party wishes to contest: (1) the legal sufficiency
of the allegations of any complaint, counterclaim or cross claim, or of any
one or more counts thereof, to state a claim upon which relief can be
granted . . . .’’
16
The policy contains other additional sublimits of liability for events such
as damage to vegetation of a golf course, nonphysical damage to computer
systems, data, programs or software, earth movement, flood, land and water
contaminant cleanup, removal or disposal.
17
The communicable disease response coverage provided: ‘‘If a location
owned, leased, or rented by the [plaintiff] had the actual not suspected
presence of communicable disease and access to such location is limited,
restricted or prohibited by: 1) an order of an authorized governmental agency
regulating the actual not suspected presence of communicable disease; or
2) a decision of an [o]fficer of the [plaintiff] as a result of the actual not
suspected presence of communicable disease, this [p]olicy covers the rea-
sonable and necessary costs incurred by the [plaintiff] at such location with
the actual not suspected presence of communicable disease for the: 1)
cleanup, removal and disposal of the actual not suspected presence of
communicable diseases from insured property; and 2) actual costs of fees
payable to public relations services or actual costs of using the [plaintiff’s]
employees for reputation management resulting from the actual not sus-
pected presence of communicable diseases on insured property. This [a]ddi-
tional [c]overage will apply when access to such location is limited, restricted
or prohibited in excess of 48 hours. This [a]dditional [c]overage does not
cover any costs incurred due to any law or ordinance with which the [plain-
tiff] was legally obligated to comply prior to the actual not suspected pres-
ence of communicable disease.’’ (Emphasis omitted.)
18
The interruption by communicable disease coverage provided in relevant
part: ‘‘If a location owned, leased or rented by the [plaintiff] has the actual
not suspected presence of communicable disease and access to such location
is limited, restricted or prohibited by: 1) an order of an authorized govern-
mental agency regulating the actual not suspected presence of communica-
ble disease; or 2) a decision of an [o]fficer of the [plaintiff] as a result of
the actual not suspected presence of communicable disease, this [p]olicy
covers the Actual Loss Sustained and EXTRA EXPENSE incurred by the
[plaintiff] during the PERIOD OF LIABILITY at such location with the actual
not suspected presence of communicable disease.’’ (Emphasis omitted.)
19
At oral argument before this court, counsel for defendant represented
that the plaintiff had been paid $1 million pursuant to the communicable
disease response coverage.
20
See, e.g., Capstone Building Corp. v. American Motorists Ins. Co., 308
Conn. 760, 773–74, 67 A.3d 961 (2013) (‘‘The commercial general liability
policy is a standard form developed by the Insurance Services Office, Inc.,
and has been used throughout the United States since 1940. . . . It begins
with a broad grant of coverage in the insuring agreement, followed by a
series of exclusions (and exceptions to the exclusions) that define the
contours of coverage. Accordingly, we begin our analysis with the initial
grant of coverage in the insuring agreement and then consider the effect
of the exceptions and exclusions to the policy’s coverage.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)).
21
As previously set forth in this opinion, the trial court expressly declined
to address whether the damage from COVID-19 constitutes physical damage
to the property to trigger the physical loss or damage or time element
coverages. Unlike the trial court, we have the benefit of our Supreme Court’s
decisions in Connecticut Dermatology Group, PC v. Twin City Fire Ins.
Co., supra, 346 Conn. 33, and Hartford Fire Ins. Co. v. Moda, LLC, supra,
346 Conn. 64. Furthermore, the parties have briefed and argued on appeal
whether the physical loss or damage or time element coverages were trig-
gered in light of those recent Supreme Court decisions. We will, therefore,
apply the reasoning and conclusions from those cases as part of our resolu-
tion of the present appeal. ‘‘It is axiomatic that [w]e may affirm a proper
result of the trial court for a different reason.’’ Barbara v. Colonial Surety
Co., 221 Conn. App. 337, 380, 301 A.3d 535, cert. denied sub nom. Colonial
Surety Co. v. Phoenix Contracting Group, 348 Conn. 924, 304 A.3d 443
(2023); see also Stevens v. Khalily, 220 Conn. App. 634, 644, 298 A.3d 1254,
cert. denied, 348 Conn. 915, 303 A.3d 260 (2023).
22
Although the policy does not specifically include the term ‘‘direct’’ with
regard to ‘‘physical loss or damage,’’ we note that it excludes ‘‘indirect or
remote loss or damage.’’
23
Concord General Mutual Ins. Co. v. Green & Co. Building & Develop-
ment Corp., 160 N.H. 690, 694, 8 A.3d 24 (2010).
24
Specifically, the policy excluded ‘‘loss or damage caused directly or
indirectly by . . . [the] [p]resence, growth, proliferation, spread or any
activity of fungi, wet rot, dry rot, bacteria or virus.’’ (Internal quotation
marks omitted.) Connecticut Dermatology Group, PC v. Twin City Fire
Ins. Co., supra, 346 Conn. 40.
25
The plaintiffs in CT Dermatology contended that any reliance on Cap-
stone Building Corp. v. American Motorist Ins. Co., supra, 308 Conn. 760,
was misplaced, as that case involved a claim for property damage, while
they had alleged the physical loss of property. Connecticut Dermatology
Group, PC v. Twin City Fire Ins. Co., supra, 346 Conn. 45 n.10. In rejecting
the effort to distinguish Capstone, our Supreme Court explained: ‘‘Although
we agree that our decision in Capstone is not directly on point, it does
provide some insight into the meaning of the term ‘physical,’ as applied to
claims involving the loss of or damage to property. In any event, even if
the plaintiffs were correct that Capstone provides no insight into the meaning
of ‘direct physical loss,’ as used in their policies, that would not change our
conclusion, based on the other reasons stated herein, that the phrase does
not include losses resulting from the suspension of business operations
during the COVID-19 pandemic.’’ (Emphasis omitted.) Id.
26
See Connecticut Dermatology Group, PC v. Twin City Fire Ins. Co.,
supra, 346 Conn. 46–49 nn.11 and 12 (collecting federal and state cases).
27
See Connecticut Dermatology Group, PC v. Twin City Fire Ins. Co.,
supra, 346 Conn. 60 n.24 (collecting federal and state cases distinguishing
coronavirus from other substances such as radiation, chemical dust, gas,
ammonia, and asbestos).
28
We note that numerous cases have recognized that, while COVID-19
harms people, the insurance policies and coverages at issue, like in the
present case, apply to property. ‘‘The fact that the property could become
a vector for transmission of a virus that poses a risk to human health due
to the presence of SARS-CoV-2 in the air at the property is not relevant to the
question of whether there has been physical loss of or damage to property,
because the policies insure property, not people. [T]he danger of the virus
is to people in close proximity to one another, not to the real property itself.
. . . As one court observed, SARS-CoV-2 presents a mortal hazard to
humans, but little or none to buildings which remain intact and available
for use once the human occupants no longer present a health risk to one
another. . . . [Stated differently] [t]he virus harms human beings, not prop-
erty.’’ (Citations omitted; internal quotation marks omitted.) Schleicher &
Stebbins Hotels, LLC v. Starr Surplus Lines Ins. Co., 175 N.H. 744, 756,
302 A.3d 67 (2023); see Stetson Real Estate, LLC v. Sentinel Ins. Co., Ltd.,
Docket No. 22-1748, 2023 WL 6563870, *2 (2d Cir. October 10, 2023) (‘‘COVID-
19 virus injures people, not property’’ (internal quotation marks omitted));
Procaccianti Cos. v. Zurich American Ins. Co., Docket No. C.A. 20-512
(WES), 2023 WL 3536233, *3 (D. R.I. May 18, 2023) (whether doorknob is
contaminated with COVID-19 and poses risk to human health is absolutely
irrelevant to whether that doorknob is physically lost or damaged for pur-
poses of insurance coverage); DZ Jewelry, LLC v. Certain Underwriters
at Lloyds London, 525 F. Supp. 3d 793, 799–800 (S.D. Tex. 2021) (courts
repeatedly have stated that ‘‘COVID-19 does not cause physical damage to
property; it causes people to get sick’’ (internal quotation marks omitted));
Uncork & Create, LLC v. Cincinnati Ins. Co., 498 F. Supp. 3d. 878, 884
(S.D. W. Va. 2020) (COVID-19 poses serious risk to people gathered in
proximity to each other, but property is not physically damaged or rendered
unusable or uninhabitable by presence of it), aff’d, 27 F.3d 929 (4th Cir.
2022); Starr Surplus Lines Ins. Co. v. Eighth Judicial District Court, 535
P.3d 254, 264 (Nev. 2023) (‘‘SARS-CoV-2’s virality in the air is evidence of
harm imperiling people, not property’’); Huntington Ingalis Industries, Inc.
v. Ace American Ins. Co., 287 A.3d 515, 541 (Vt. 2022) (Carroll, J., dissenting)
(virus does not infect lightbulbs, desk or walls and these objects cannot
develop COVID-19; virus infects and causes COVID-19 in humans).
29
As we recently and repeatedly have recognized, ‘‘[i]t is axiomatic that,
[a]s an intermediate appellate court, we are bound by Supreme Court prece-
dent and are unable to modify it . . . . [W]e are not at liberty to overrule
or discard the decisions of our Supreme Court but are bound by them. . . .
[I]t is not within our province to reevaluate or replace those decisions.’’
(Internal quotation marks omitted.) State v. Gonzalez, 214 Conn. App. 511,
522–23 n.10, 281 A.3d 501, cert. denied, 345 Conn. 967, 285 A.3d 736 (2022);
see also Lavette v. Stanley Black & Decker, Inc., 213 Conn. App. 463, 481,
278 A.3d 1072 (2022); Onofrio v. Mineri, 207 Conn. App. 630, 645 n.4, 263
A.3d 857 (2021).
30
Roundabout Theater Co. v. Continental Casualty Co., 302 App. Div. 2d
1, 751 N.Y.S.2d 4 (2002).
31
See also Mario Badescu Skin Care, Inc. v. Sentinel Ins. Co., Ltd., Docket
No. 22-0380-cv, 2023 WL 6567266, *1 (2d Cir. October 10, 2023) (Second
Circuit and state courts of New York consistently and repeatedly have
held under New York law that COVID-19 does not trigger insurance policy
provisions that provide coverage for losses arising from direct physical
loss or physical damage to covered property); Stetson Real Estate, LLC v.
Sentinel Ins. Co., Ltd., Docket No. 22-1748, 2023 WL 6563870, *1 (2d Cir.
October 10, 2023) (same and collecting cases); 147 First Realty, LLC v.
Aspen American Ins. Co., Docket No. 22-220, 2023 WL 3014780, *1 (2d Cir.
April 20, 2023) (Second Circuit, applying law of New York, has held that
policy provisions establishing coverage for physical loss of or physical dam-
age to property does not extend to claims for loss and expenses resulting
from business suspension in response to COVID-19 related public health
restrictions); Connecticut Children’s Medical Center v. Continental Casu-
alty Co., CNA Financial Corp., Docket No. 22-322, 2023 WL 2961738, *1
(2d Cir. April 17, 2023) (District Court properly dismissed complaint for
failure to state claim as facts alleged failed to plausibly show direct physical
loss or damage due to COVID-19 following our Supreme Court’s analysis in
Connecticut Dermatology Group, PC v. Twin City Fire Ins. Co., supra, 346
Conn. 33, and Hartford Fire Ins. Co. v. Moda, LLC, supra, 346 Conn. 64);
ITT, Inc. v. Factory Mutual Ins. Co., Docket No. 22-1245, 2023 WL 1126772,
*1 (2nd Cir. January 31, 2023) (noting that Connecticut had joined general
consensus of state and federal courts holding that physical loss or damage
requires physical damage or alteration to property and therefore District
Court properly dismissed plaintiff’s claim under all risk insurance policy
because coverage was not triggered); Kim-Chee, LLC v. Philadelphia
Indemnity Ins. Co., Docket No. 21-1082-cv 2022 WL 258569, *1–2 (2d Cir.
January 28, 2022) (under New York law, direct physical loss unambiguously
does not extend to mere loss of use of property where there has been no
physical damage to property and no allegation that any part of building
or anything inside of it was damaged to point of repair, replacement, or
total loss).
32
See Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29 (1st Cir.
2022); SAS International, Ltd. v. General Star Indemnity Co., 36 F.4th 23
(1st Cir. 2022); Verveine Corp. v. Strathmore Ins. Co., 489 Mass. 534, 184
N.E.3d 1266 (2022).
33
See also Wilson v. USI Ins. Service, LLC, 57 F.4th 131, 141–44 (3rd Cir.
2023) (under Pennsylvania and New Jersey law, loss of use of property due
to COVID-19 did not constitute direct physical loss of or damage to property
to trigger insurance coverage). As noted by the Third Circuit, other United
State Courts of Appeals have reached the same conclusion. Id., 143 n.6
(citing, inter alia, Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29
(1st Cir. 2022); Uncork & Create, LLC v. Cincinnati Ins. Co., 27 F.4th 926
(4th Cir. 2022); Terry Black’s Barbeque, LLC. v. State Auto Mutual Ins. Co.,
22 F.4th 450 (5th Cir. 2022); Goodwill Industry of Central Oklahoma, Inc.
v. Philadelphia Indemnity Ins. Co., 21 F.4th 704 (10th Cir. 2021); Sandy’s
Point Dental, P.C. v. Cincinnati Ins. Co., 20 F.4th 327 (7th Cir. 2021);
MudPie, Inc. v. Travelers Casualty Ins. Co. of America, 15 F.4th 885 (9th
Cir. 2021); Santo’s Italian Café, LLC v. Acuity Ins. Co., 15 F.4th 398 (6th
Cir. 2021); Oral Surgeons, P.C. v. Cincinnati Ins. Co., 2 F.4th 1141 (8th
Cir. 2021)).
Furthermore, as the Louisiana Supreme Court noted in Cajun Conti, LLC
v. Certain Underwriters at Lloyd’s, London, 359 So. 3d 922 (La. 2023):
‘‘[N]umerous state supreme courts have reached a similar result when
analyzing comparable policy language. E.g., [Neuro-Communication] [Ser-
vices], Inc. v. Cincinnati Ins. Co., [171 Ohio 3d St. 606, 611, 219 N.E.2d
907 (2022)] (The definition of the term loss is clear: for coverage to be
provided, there must be loss or damage to [c]overed [p]roperty that is
physical in nature. Such loss or damage does not include a loss of the ability
to use [c]overed [p]roperty for business purposes.); Sullivan [Management],
LLC v. Fireman’s Fund Ins. Co., [437 S.C. 587, 594–95, 879 S.E.2d 742]
(2022) (Because neither the presence of the coronavirus nor the government
order prohibiting indoor dining constitutes direct physical loss or damage,
the policy’s triggering language is not met.); Tapestry, Inc. v. Factory
[Mutual] Ins. Co., [482 Md. 223, 252, 286 A.3d 1044] (2022) ([T]he presence
of [c]oronavirus in the air and on surfaces at [the plaintiff’s] properties did
not cause physical loss or damage as that phrase is used in the [p]olicies.);
Hill & Stout, PLLC v. [Mutual] of Enumclaw Ins. Co., 200 Wn. 2d 208, 212,
515 P.3d 525] (2022) (It is unreasonable to read direct physical loss of . . .
property in a property insurance policy to include constructive loss of
intended use of property. Such a loss is not physical.); Colectivo Coffee
Roasters, Inc. v. [Society] Ins., [401 Wis. 2d 660, 672, 974 N.W.2d 442] (2022)
([T]he presence of COVID-19 does not constitute a physical loss of or damage
to property because it does not alter the appearance, shape, color, structure,
or other material dimension of the property.); Verveine Corp. v. Strathmore
Ins. Co., [489 Mass. 534, 541, 184 N.E.3d 1266] (2022) (We conclude that no
reasonable interpretation of direct physical loss of or damage to property
supports the plaintiffs’ claims.).’’ (Emphasis added; internal quotation marks
omitted.) Cajun Conti, LLC v. Certain Underwriters at Lloyd’s, London,
supra, 928–29.
We acknowledge that this reasoning has not been adopted universally.
See, e.g., Huntington Ingalis Industries, Inc. v. Ace American Ins. Co.,
287 A.3d 515, 533–34 (Vt. 2022) (Vermont has extremely liberal notice-
pleading standards and threshold plaintiff must cross to meet standard
is exceedingly low and based on such standards; statement in complaint
adequately alleged virus physically altered properly when it adhered to
surface); see also Marina Pacific Hotel and Suites, LLC v. Fireman’s Fund
Ins. Co., 81 Cal. App. 5th 96, 109, 296 Cal. Rptr. 3d 777 (2022) (determining
plaintiff ‘‘unquestionably pleaded direct physical loss or damage to covered
property’’ and recognizing this conclusion ‘‘is at odds with almost all (but
not all) decisions’’ considering issue). We find these decisions unpersuasive
because Connecticut is a fact pleading state. See Bridgeport Harbour Place
I, LLC v. Ganim, supra, 303 Conn. 213 n.7; Godbout v. Attanasio, 199 Conn.
App. 88, 111–12, 234 A.3d 1031 (2020).
34
See, e.g., Sacramento Downtown Arena, LLC v. Factory Mutual Ins.
Co., 637 F. Supp. 3d 865, 870 (E.D. Cal. 2022) (policy can reasonably be
interpreted as defining presence of communicable disease as physical loss
or damage); Live Nation Entertainment, Inc. v. Factory Mutual Ins. Co.,
Docket No. LA CV21-00862 (JAK), 2022 WL 390712, *8 (C.D. Cal. February
3, 2022) (same).
35
‘‘It is axiomatic that a contract of insurance must be viewed in its
entirety . . . .’’ (Internal quotation marks omitted.) Lift-Up, Inc. v. Colony
Ins. Co., 206 Conn. App. 855, 869, 261 A.3d 825 (2021).
36
See, e.g., Arnone v. Connecticut Light & Power, 90 Conn. App. 188,
203–206, 878 A.2d 347 (2005) (discussing differences between motion to
strike and motion for summary judgment).
37
See Kids Indoor Playground, Inc. v. Northfield Ins. Co., Docket No.
23-55076, 2023 WL 8542622, *1 (9th Cir. December 11, 2023) (policy’s virus
exclusion unambiguously barred coverage for business losses and damages
allegedly sustained due to COVID-19 and shutdown orders); see also Froedt-
ert Health, Inc. v. Factory Mutual Ins. Co., 69 F.4th 466, 470 (7th Cir. 2023);
Goodwill Industries of Central Oklahoma, Inc. v. Philadelphia Indemnity
Ins. Co., 21 F.4th 704, 713–14 (10th Cir. 2021); Mashallah, Inc. v. West Bend
Mutual Ins. Co., 20 F.4th 311, 320–22 (7th Cir. 2021); Dr. Jeffrey Milton,
DDS, Inc. v. Harford Casualty Ins. Co., 588 F. Supp. 3d 266, 273–74 (D.
Conn. 2022); Little Stars, LLC v. Sentinel Ins. Co., Ltd., 554 F. Supp. 3d
378, 384–86 (D. Conn. 2021); Ralph Lauren Corp. v. Factory Mutual Ins.
Co., Docket No. 20-10167 (SDW) (LDW), 2021 WL 1904739 (D. N.J. May 12,
2021); LJ New Haven, LLC v. AmGUARD Ins. Co., 511 F. Supp. 3d 145,
151–56 (D. Conn. 2020). State cases include: Coast Restaurant Group, Inc.
v. Amguard Ins. Co., 90 Cal. App. 5th 332, 344–45, 307 Cal. Rptr. 3d 133
(Cal. App. 2023) (policy did not cover business loss or damage directly or
indirectly caused by virus such as coronavirus); American Rag Cie, LLC
v. Harford Fire Ins. Co., Superior Court, judicial district of Hartford, Docket
No. CV-XX-XXXXXXX-S (August 1, 2023) (applying California law, virus exclu-
sion barred any coverage for plaintiff’s COVID-19 related losses); Hill &
Stout, PLLC v. Mutual of Enumclaw Ins. Co., 200 Wn. 2d 208, 229, 515 P.3d
525 (2022) (no issue of material fact that virus exclusion applied).
38
The District Court in One40 Beauty Lounge, LLC v. Sentinel Ins. Co.,
Ltd., supra, United States District Court, Docket No. 3:20-CV-00643 (KAD),
set forth several cases. See Cosmetic Laser, Inc. v. Twin City Fire Ins.
Co., 554 F. Supp. 3d 389, 401–402 (2021) (finding identical virus exclusion
unambiguous and rejecting argument that canons of construction are neces-
sary to determine scope of exclusion, though noting that, even if canons
applied, those argued by plaintiff do not change outcome); see also Little
Stars, LLC v. Sentinel Ins. Co., Ltd., 554 F. Supp. 3d 378, 385 (2021) (conclud-
ing that identical virus exclusion is unambiguous and precludes coverage
for losses caused by COVID-19 virus); CFIT Holding Corp. v. Twin City
Fire Ins. Co., 548 F. Supp. 3d 701, 708 (2021) (same); Kirkland Group, Inc.
v. Sentinel Ins. Co., Ltd., Docket No. 3:20-cv-496-DPJ-FKB, 2021 WL 2772561,
*2 (S.D. Miss. June 29, 2021) (same); Arrowhead Health & Racquet Club,
LLC v. Twin City Fire Ins. Co., Docket No. 1:20-cv-08968-NLH-KMW, 2021
WL 2525739, *5 (D. N.J. June 21, 2021) (same); Garces v. Sentinel Ins. Co.,
Ltd., Docket No. 5:21-cv-00189-JWH-SPX, 2021 WL 2010357, *3 (C.D. Cal.
May 18, 2021) (same); Coffey & McKenzie, LLC v. Twin City Fire Ins.
Co., Docket No. 2:20-cv-01671-BHH, 2021 WL 1310872, *3 (D. S.C. April 8,
2021) (same).
39
One court has described the attempt to distinguish a virus from a commu-
nicable disease in this context as a ‘‘red herring.’’ Ralph Lauren Corp. v.
Factory Mutual Ins. Co., Docket No. 20-10167 (SDW) (LDW), 2021 WL
1904739, *4 n.8 (D. N.J. May 12, 2021).
40
In support of its claim, the plaintiff cites to Thor Equities, LLC v.
Factory Mutual Ins. Co., 531 F. Supp. 3d 802, 804–805 (S.D.N.Y. 2021), in
which the District Court denied the defendant’s motion for judgment on
the pleadings pursuant to rule 12 (c) of the Federal Rules of Civil Procedure.
The court concluded that the contamination exclusion was ambiguous and
therefore denied the insurance company’s motion. Id., 809. We join the other
judicial decisions that determined that this decision to be inapposite or
unpersuasive. See Harvey B. Pats, M.D., P.A. v. Hartford Ins. Co., United
States District Court, Docket No. 3:20CV00697 (SALM) (D. Conn. December
17, 2021); see also Dana, Inc. v. Zurich American Ins. Co., Docket No. 21-
4150, 2022 WL 2452381, *3 n.4 (6th Cir. July 6, 2022); Ralph Lauren Corp.
v. Factory Mutual Ins. Co., Docket No. 20-10167 (SDW) (LDW), 2021 WL
1904739, *4 n.8 (D. N.J. May 12, 2021).
Additionally, the Southern District Court of New York subsequently
granted the defendant insurer’s partial motion for summary judgment, con-
cluding ‘‘as a matter of law, the presence of the COVID-19 virus does not
qualify as damage to property, and [the plaintiff] has failed to satisfy the
conditions for recovery under the [c]ommunicable [d]isease [p]rovisions.’’
Thor Equities, LLC v. Factory Mutual Ins. Co., Docket No. 20 Civ. 3380
(AT), 2023 WL 7928097, *3 (S.D.N.Y. November 16, 2023), appeal filed (2d
Cir. December 21, 2023) (No. 23-8063).