Case Information
IN THE UNITED STATES DISTR ICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVIS ION
SANDY POINT DENTAL, PC, )
)
Plaintiff, )
) Case No. 20 CV 2160 v. )
) Judge Robert W. Gettleman THE CINC INNATI INSUR ANCE )
COMPANY, )
)
Defendant. ) MEMORANDUM OPINION & ORDER
Plaintiff Sandy Point Dental, PC brought a three count complaint against defendant, The Cincinnati Insurance Company, seeking a declaration that defendant must provide coverage under the policy for losses due to governmental closure orders intended to slow the spread of the Coronavirus and COVID-19, damages and attorneys’ fees under 215 ILCS 5/155, and a claim for breach of contract for failing to provide coverage. On September 21, 20, the court grаnted defendant’s motion to dismiss and terminated the case. [Doc. 37]. Plaintiff has filed a motion for leave to file a Second Amended Complaint [Doc. 39] and a mоtion to reconsider [Doc. 40]. After reviewing the briefs and considering the supplemental authority, the court denies both motions.
BACKGROUND
The background facts are set fоrth in the court’s earlier opinion and need not be restated
here. Sandy Point Dental, PC v Cincinnati Insurance Co.,
We will pay for the actual loss of “Businеss Income” … you sustain due to the necessary “suspension” of your “operation” during the “period of restoration”. The “suspension” must be caused by direct physiсal “loss’ to property at “premises” cause by or resulting from any Covered Cause of Loss.
[…]
We will pay for the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration”. The “suspension” must be caused by direct physical “loss” to propеrty at “premises” which is described in the Declarations and for which a “Business Income” Limit of Insurance is shown in the Declaration. The “loss” must be caused by or result from a Covered Cause of Loss.
The policy defines a Covered Cause of Loss as “RISKS OF DIRECT PHYSCIAL LOSS,” unless expressly excluded by the policy.
DISCUSSION
Plaintiff has filed two motions: one for leave to file a Second Amended Complaint and the other for reconsideration under Rule 59(e). The court will discuss each in turn.
1) Motion to reconsider
The court’s September 21, 2020, oрinion found that the insurance policy covering plaintiff’s business is triggered only by a direct physical loss, and that the COVID-19 pandemic and subsequent lockdown orders did not сause such a loss. [Doc. 37]. The court further found that the lockdown orders did not trigger civil authority coverage, and that plaintiff failed to plead a 215 ILCS 5/155 claim. Plaintiff moves to reconsider only the court’s first finding: that there was no physical damage triggering insurance coverage.
Rule 59(e) of the Federal Rules of Civil Procеdure “allow[s] a party to bring to the
district court’s attention a manifest error of law or fact so that it may correct, or at least address,
the error in the first instаnce.” A&C Constr. & Installation, Co. WLL v. Zurich Am. Ins. Co., 963
F.3d 705, 709 (7th Cir. 2020). Such a motion serves a limited function and may not be used to
reargue or rehash arguments previously presented. See Oto v. Metro. Life. Ins. Co., 224 F3d
601, 606 (7th Cir. 2000). The party seeking the Court’s reconsideration must give the Court “a
reason for changing its mind.” Ahmed v. Ashcroft,
Plaintiff argues that the court should reconsider its deсision because there as been “a
change in the law after the case was submitted to the Court for consideration.” The only change
plaintiff identifies is a single case from the United States District Court for the Western District
of Missouri, Blue Springs Dental Care, LLC v. Owner Ins. Co.,
Contrary to plaintiff’s arguments, Blue Springs is nothing new. Indeеd, the reasoning of
Blue Springs is nearly identically to the reasoning in Studio 417, Inc., et al. v. the Cincinnati Ins.
Co.,
Further, the majority of cоurts to address this issue have agreed with this court, finding
that COVID-19 and corresponding closure orders do not cause physical damage or physical loss
to insured property. An Illinois state court and several federal courts have cited this court’s
earlier decision favorably and have agreed with this court’s conclusiоn. See for example, It’s
Nice Inc. v. State Farm Fire and Cas., Co., Case No. 2020 L 000517 (18 th Judicial Circuit
(DuPage County) Sep. 29, 2020) (favorably citing Sandy Point and relying on that reasoning to
conclude that COVID-19 does not cause physical damage triggering insurance coverage, and
dismissing the case); Bradley Hotel Corp. v. Aspen Specialty Ins. Co.,
Plaintiff has not provided a manifest error of fact or law. All рlaintiff has provided is an out-of-circuit case that relies on a different state’s law and different policy language. Plaintiff’s arguments do not warrant a motion to reconsider. The motion is accordingly denied.
2) Leave to File a Second Amended Complaint
Plaintiff has additionally moved for leave to file a Second Amended Complaint.
[1]
Ordinarily, a plaintiff whose cоmplaint has been dismissed under Rule 12(b)(6) may be given an
opportunity to amend the complaint before the entire action is dismissed. Runnion v. Girl Scouts
of Greater Chi.,
CONCLUSION
For the reasons stated above, the court denies plaintiff’s motion for leave to file a Second Amended Complaint [Doc. 39] and motion to reconsider [Doc. 40].
ENTER:
Date: January 10, 2021 ___________________________________
Robert W. Gettleman United States District Judge
Notes
[1] Plaintiff has already amended its complaint once as a matter of course [Doc. 23].