UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ SANTO’S ITALIAN CAFÉ LLC, │ Plaintiff-Appellant, │ > No. 21-3068 │ v. │ │ ACUITY INSURANCE COMPANY, │ Defendant-Appellee. │ │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:20-cv-01192—Pamela A. Barker, District Judge.

Argued: September 16, 2021

Decided and Filed: September 22, 2021

Before: SUTTON, Chief Judge; BATCHELDER and LARSEN, Circuit Judges.

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COUNSEL ARGUED: Colin P. Sammon, SAMMON LAW, LLC, Medina, Ohio, for Appellant. John R. Chlysta, HANNA, CAMPBELL & POWELL, LLP, Akron, Ohio, for Appellee. John N. Ellison, REED SMITH LLP, New York, New York, Stephen E. Goldman, ROBINSON & COLE LLP, Hartford, Connecticut, for Amici Curiae. ON BRIEF: Colin P. Sammon, SAMMON LAW, LLC, Medina, Ohio, for Appellant. John R. Chlysta, Kenneth A. Calderone, HANNA, CAMPBELL & POWELL, LLP, Akron, Ohio, for Appellee. John N. Ellison, REED SMITH LLP, New York, New York, Christopher E. Kozak, PLEWS SHADLEY RACHER & BRAUN LLP, Indianapolis, Indiana, Wystan M. Ackerman, ROBINSON & COLE LLP, Hartford, Connecticut, Gabriel K. Gillett, JENNER & BLOCK, LLP, Chicago, Illinois, Timothy J. Fitzgerald, KOEHLER FITZGERALD LLC, Cleveland, Ohio, for Amici Curiae. No. 21-3068 Santo’s Italian Café v. Acuity Ins. Co. Page 2

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OPINION _________________

SUTTON, Chief Judge. Santosuossos is an Italian restaurant in Medina, Ohio. The COVID-19 pandemic was not good for the restaurant’s business or for that matter most hospitality services. First came an understandable reluctance by patrons to enter enclosed public spaces such as restaurants. Then came the State of Ohio’s order to suspend all in-person dining operations at restaurants to slow the spread of the virus. Through it all, Santosuossos lost considerable revenue and understandably blamed the pandemic and shut-down order for its economic woes. The owner of the restaurant sued its insurer, Acuity Insurance Company, for coverage under its commercial property insurance policy, which covers business interruption “caused by direct physical loss of or damage to property.” R.7-7 at 29. The district court granted Acuity’s motion to dismiss, reasoning that the policy did not cover this kind of peril. We agree and affirm.

I.

In March 2020, the Governor of Ohio declared a state of emergency in connection with the COVID-19 pandemic. A few days later, the Director of the Ohio Department of Health ordered restaurants across the State to close their doors to in-person diners. The order forced Santosuossos “to halt ordinary operations.” R.1-1 at 3. Although the closure order permitted restaurants to offer takeout services, in-person dining generates the “substantial majority of [Santosuossos’s] revenue.” Id. The restaurant sustained significant losses and laid off employees as a result of the order.

The owner of the restaurant, Santo’s Italian Ca