13.  COVID-19 is an infectious disease caused by a recently discovered novel  coronavirus known as SARS-CoV-2 (“Coronavirus” or “COVID-19”).  The first instances of the  disease spreading to humans were diagnosed in or around December 2019.     14.  According to the World Health Organization (“WHO”): “People can catch  COVID19 from others who have the virus.  The disease can spread from person to person  through small droplets from the nose or mouth which are spread when a person with COVID-19  coughs or exhales.  These droplets land on objects and surfaces around the person.  Other people  then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose or  mouth.  People can also catch COVID-19 if they breathe in droplets from a person with COVID- 19 who coughs out or exhales droplets.”3     16.  According to a recent report in the New York Times, “[a]n infected person talking  for five minutes in a poorly ventilated space can produce as many viral droplets as one infectious  cough.”5  The more people in a conversation, the more droplets are dispersed.    17.  Although these droplets are smaller and less visible than rust, mold, or paint, they  are physical objects which can travel to other objects and cause harm.    18.  These droplets can spread Coronavirus when they reach humans directly, or when  they land on habitable surfaces where they can survive until that surface is touched by a potential  human host.6     19.  Droplets containing Coronavirus infect a variety of surfaces and objects for a  period of hours, days, or weeks, if not longer.  After inspecting a cruise ship inhabited by  passengers carrying the Coronavirus, the CDC reported that Coronavirus was detectable on  various surfaces inside the cruise ship up to 17 days after passengers had vacated the cabins.7    2. See also Ex. 10 at 2 (indicating that the City and County of Los Angeles issued closure orders  “because, among other reasons, the COVID-19 virus can spread easily from person to person and  it is physically causing property loss or damage due to its tendency to attach to surfaces for  prolonged periods of time,”); Ex. 11 at 3 (reflecting similar findings and action by the City and  County of San Francisco).     21.  Testing involving similar viruses in the Coronavirus family shows that  Coronavirus can likely survive on ceramics, silicon rubber, or paper for up to five days if not  longer.    22.  When public areas containing such surfaces may have been exposed to  Coronavirus, a number of countries including China, Italy, France, and Spain have required such  areas to be fumigated prior to re-opening.9    23.  The Coronavirus has spread throughout New York, Connecticut, and the United  States.  B.  Governments Around the Country Order Everyone to Shelter in Place   24.  As the virus spread in New York and Connecticut, state officials began discussing  wide scale business closures.    25.  On March 13, 2020 President Trump declared the COVID-19 outbreak a national  emergency.   27.  Following this advice, and recognizing that there had been numerous confirmed  cases of COVID-19 in their jurisdictions, many state government administrations across the  nation recognized the need to take steps to protect their residents from the spread of COVID-19.  As a result, many governmental administrations entered civil authority orders suspending or  severely curtailing business operations of non-essential businesses that interact with the public  and provide gathering places for the individuals.    28.  Specifically, the governments of New York, Connecticut, and New Jersey acted  “jointly [to] reduce density,” adopted what Governor Cuomo described as a “common set of  rules that will pertain in all of our states” and “implement a uniform standard.”10 This  coordinated approach included shutting down on-site service at all restaurants and bars.11    29.  Specifically, on March 16, 2020, Governor Cuomo, in conjunction with Governor  Lamont,12 ordered the closure of all gyms, movie theaters, bars and casinos.  Ex. 1 at 3; Ex. 2 at   30.  In May and June, these state governments modified the March 16 orders to allow  certain restaurants to serve diners outdoors in a limited and heavily regulated manner. Ex. 3 at 3;  Ex. 4 at 3; Ex. 5 at 4. In mid-June, the Orders were again modified to allow for certain indoor  service in a limited and heavily regulated manner in certain locations. Ex. 6 at 2; Ex. 7 at 4–5.   Collectively, the above-referenced orders of the State of New York and Connecticut are referred  to herein as the “Orders.”   31.  On March 28, 2020 the United States Department of Homeland Security issued a  memorandum concerning the “Identification of Essential Critical Infrastructure Workers During  Covid-19 Response.”14  This memorandum provided guidance for the implementation and  standardization of all state shelter in place orders and the restrictions they place on different  essential and non-essential businesses.       32.  Statewide efforts similar to New York and Connecticut’s have been implemented  around the country in response to literally millions of confirmed infections in the United States.   State governments have required large scale business closures and imposed other limitations on  customer and employee movement that prevent restaurants from operating and/or force them to  suffer business losses.  For example, Governor Newsom of California issues a similar order on  March 19, 2020.    34.  The Orders were issued in response to direct physical loss of and/or direct  physical damage to properties, and particularly the harm caused by Coronavirus attaching itself  to surfaces in highly-trafficked areas. When Governor Cuomo first declared Covid-19 a state of  emergency on March 7, 2020, his order indicated that the action was being taken “to assist local  governments and individuals in containing, preparing for, responding to and recovering from this  state disaster emergency, to protect state and local property.” Ex. 8 at 2. Echoing this, on May 9,  2020, Mayor de Blasio issued an emergency order within the state framework and acknowledged  that it “is given because of the propensity of the virus to spread person-to person and also  because the actions taken to prevent such spread have led to property loss and damage.” Ex. 9 at   36.  In reaction to the spread of the Coronavirus, and the Orders, the Delis suspended  operations on or around March 16, 2020.    37.  As Coronavirus spread, the streets on which the Delis are located, and the  buildings and objects in and around them, became a breeding ground for the disease. Numerous  individuals around the Delis also tested positive for Coronavirus as it was assuredly being  transmitted in or between properties throughout the areas near the Delis, including but not  limited to transmission through the air, shared buildings and facilities, through ventilation  systems, or through contact with contaminated surfaces.   38.  Events in Westport, Connecticut underscored these facts. The Rye Ridge Delis  have a third branch in Westport (which is insured by a different insurance policy unconnected to  Defendant). On or around April 7, 2020, an employee at the Westport Deli contracted the  Coronavirus, which then spread to other employees. This forced the Westport Deli to shut down  for about five weeks, and underscores the immediacy and imminence of the risks.      40.  Under the Orders, the Delis were required to close their dining rooms16 to the  public, thereby prohibiting access to, use of, and operations at the Delis and rendering them  untenantable.     41.  Under the Orders, the Delis were required to suspend dine in food offerings at the  Delis and service of dine in food to customers, thereby prohibiting access to, use of, and  operations at the Delis and rendering them untenantable.    42.  Under the Orders, customers were prohibited from accessing and using the Delis’  dining rooms, thereby prohibiting access to, use of, and operations at the Delis and rendering  them untenantable.    43.  Under the Orders, customers were prohibited by social distancing guidelines from  accessing and utilizing the Delis’ dining rooms, thereby prohibiting access to, use of, and  operations at the Delis and rendering them untenantable.    44.  Under the Orders, the Delis’ employees were prohibited from traveling to or  accessing the Delis for purposes of preparing and serving dine in food, thereby prohibiting  access to, use of, and operations at the Delis and rendering them untenantable.     45.  Under the Orders, the Delis’ employees were prohibited from traveling to or  accessing portions of the Delis (and property therein) utilized exclusively for preparing and  serving dine in food, thereby prohibiting access to, use of, and operations at the Delis and  rendering them untenantable.   47.  Under the Orders, both Delis lost access to portions of the Delis (and property  therein), lost use of the Delis (and property therein), lost necessary use of necessary facilities at  the Delis (and property therein), and suspended operations at the Delis which became  untenantable.   48.  Because, inter alia, the spread of Coronavirus rendered the Deli’s facilities no  longer usable for their intended purpose(s), and in many cases impossible to operate safely, it  directly caused them to suffer physical damage and loss.       49.  As a result of the spread of Covid-19, and related government orders, customers  and dependent properties were unable to and/or prohibited from holding events from which the  Delis were contacted to generate and usually generated catering income. Due to the losses  described above, the Delis were also unable to fulfill any such orders.    50.  As a result, both Delis suffered and continue to suffer substantial lost business  income and other financial losses.   51.  These extraordinary losses of business income (and concern for their employees’  welfare) are precisely why the Delis took out insurance policies with Defendant that included  business interruption coverage, which were meant to cover these losses.  D.  These Losses Are Covered Business Interruptions    52.  The Delis purchased insurance policies from Defendant that included business  interruption (and other related) insurance coverage.    54.  Rye Ridge CT has promptly and dutifully paid its premiums and complied with  all other elements of its agreements with Defendant.  Its policy number is ECP 055 79 23.   Collectively ECP 055 80 49 and ECP 055 79 23 shall be referred to as the “Policies.”   55.  In many countries, property insurance is sold on a specific peril basis. Such  policies only cover losses from causes that are expressly covered like an earthquake, fire, or  terrorist attack.  Most property policies sold in the United States are all-risk property damage  policies which cover losses from all causes that are not expressly excluded.   56.  The Policies are all-risk property damage policies because their terms indicate  that they cover all risks which can cause harm to physical property except for risks that are  expressly and specifically excluded.  In the Building and Personal Property Coverage Form  provided to Plaintiffs, under the heading “Covered Causes of Loss,” Defendant agreed to cover  and pay for all “direct ‘loss’ unless the ‘loss’ is excluded or limited” by a later provision of the  policy. Ex. 12aa at 39; Ex. 13a at 34.   57.  The Policies provide coverage for Lost Business Income, promising that  Defendant “will pay for the actual loss of ‘Business Income’ and ‘Rental Value’ you sustain due  to the necessary ‘suspension’ of your ‘operations’ during the ‘period of restoration’.  The  ‘suspension’ must be caused by direct ‘loss’ to property at a[n insured] ‘premises.’” Ex. 12a at  52; Ex. 13a at 47. See also Ex. 12a at 112; Ex. 13a at 103.17   59.  The Policies include a putative definition of the term “loss” as encompassing  “accidental physical loss or accidental physical damage.” Ex. 12a at 72; Ex. 13a at 67. See also  Ex. 12a at 120; Ex. 13a at 110.   60.  The term “loss” itself is not defined in the policy. Id.    61.  Similar and supplemental coverage is available for inability to utilize existing  ingresses and egresses to the Delis and dependent properties. Ex. 12a at 79–80, 115; Ex. 13a at  72, 105.   62.  As described above, the Delis suffered losses when Coronavirus and related  government orders caused them to lose physical access to, use of, and operations at and by the  Delis, their employees, and their customers. This includes, among other things, loss of the ability  to welcome customers onto the Delis’ physical premises, offer the physical dining experience of  eating on site, access or utilize any of the physical property associated with these activities,  access and utilize the ingresses and egresses at or to the Delis or properties upon which they  depend in order to generate income. As a result of the Orders, physical components of the Delis  became unusable, untenantable, damaged, and/or lost the ability to generate income.     63.  As a direct result of this physical loss or damage, the Delis suspended operations,  lost business income, and suffered other related covered losses (including but not limited to  extended business income, lost inventory, and extra expenses). The extra expenses include (but  are not limited to) outdoor seating and related equipment and protective equipment for  employees.    65.  The Orders required customers, employees, and members of the public to shelter  in place. This included prohibiting members of the public, or even employees, from accessing  areas immediately surrounding businesses like Plaintiffs’ (except potentially if those areas were  necessary for a specifically permitted activity like seeking food or medicine).     66.  The Delis are located in New York and Connecticut.  As the Coronavirus spread,  the streets on which the Delis are located, and the buildings and objects in and around them,  became a breeding ground for the disease.    68.  The prohibitions and limitations imposed by the Orders prohibited access to, use  of, and operations at and by the Delis, their employees, and their customers.  As a result of the  Orders, components of the Delis became unusable and/or lost the ability to generate income.    69.  As a result, the Delis lost business income, and suffered other related covered  losses (including but not limited to extended business income, lost inventory, and extra  expenses).    70.  COVID-19 is a Covered Cause of Loss under the Policies.   71.  The Building and Personal Property Coverage Form (FM 101 05 16) which  defines the Policies’ Lost Business Income and Civil Authority coverage is a standardized form  drafted by the Insurance Services Office (“ISO”). Ex. 12a at 35; Ex. 13a at 30. See also Ex. 12a  at 112; Ex. 13a at 103. On information and belief, the form used for the Policy is also used by  Defendant for numerous other insurance policies issued by Defendant to the Class members.   72.  The ISO is a company that drafts standard policy language for use in insurance  contracts used by insurers around the country.    74.  When preparing CP 01 40 07 06, ISO circulated a statement to state insurance  regulators that included the following acknowledgement:  Disease-causing agents may render a product impure (change its  quality or substance), or enable the spread of disease by their  presence on interior building surfaces or the surfaces of personal  property. When disease-causing viral or bacterial contamination  occurs, potential claims involve the cost of replacement of property  (for example, the milk), cost of decontamination (for example,  interior building surfaces), and business interruption (time  element) losses. Although building and personal property could  arguably become contaminated (often temporarily) by such viruses  and bacteria, the nature of the property itself would have a bearing  on whether there is actual property damage. An allegation of  property damage may be a point of disagreement in a particular  case.   75.  The insurance industry has thus recognized that the presence of virus or disease  can constitute physical damage to property since at least 2006.   76.  Defendant intentionally chose not to include CP 01 40 07 06 in the Policies and in  its insurance policies issued to other Class members.    77.  Defendant is aware of contractual force majeure clauses that suspend duties to  perform in the event of a global pandemic.     78.  Defendant chose not to use force majeure clauses in the Policies or in insurance  policies issued to other Class and New York and Connecticut Subclass members.  E.  Defendant’s Denial of Plaintiffs’ Insurance Claim   79.  In or around the week of March 16, 2020, Plaintiff Rye Ridge NY requested  insurance coverage from Defendant through its broker. It then tendered by letter on June 5, 2020.  This claim was later assigned the identifying number 3567132.    81.  The June 24, 2020 letter contains nearly 7 pages of putative reasons for Cincinnati  to deny the claim. Id. at 2–9. This language closely parallels the denial letter that Cincinnati  would ultimately send Plaintiff. As of the writing of the letter, Cincinnati had already decided to  deny the claim. Even so, notwithstanding how long the claim had been pending, Cincinnati did  not inform the insured of this coverage decision.   82.  Instead it asked Plaintiff a series of questions related to the legal basis for its  claim. When Plaintiff responded with the information known to him, referencing events that  have become common knowledge to most everyone in the United States, Cincinnati did not  accept his answers and provide a coverage decision.   83.  This strategy was designed to discourage Plaintiffs from obtaining a denial of  coverage, allowing the claim to remain in an “investigation” stage indefinitely until it could be  closed, Plaintiffs gave up, and/or the statute of limitations ran.    84.  Only after Plaintiff retained counsel and through them insisted upon a coverage  decision did Defendant ultimately deny the claim on August 25, 2020, more than three months  after the claim was submitted. Ex. 14.    85.  In or around the week of March 16, 2020, Plaintiff Rye Ridge CT requested  insurance coverage from Defendant through its broker. It then tendered by letter on June 5, 2020.  This claim was later assigned the identifying number 3567222.    87.  The June 11, 2020 letter contains nearly 7 pages of putative reasons for Cincinnati  to deny the claim. Id. at 2–9. This language closely parallels the denial letter that Cincinnati  would ultimately send Plaintiff. As of the writing of the letter, Cincinnati had already decided to  deny the claim.   88.  Instead it asked Plaintiff a series of questions related to the legal basis for its  claim. When Plaintiff responded with the information known to him, referencing events that  have become common knowledge to most everyone in the United States, Cincinnati did not  accept his answers and provide a coverage decision.   89.  This strategy was designed to discourage Plaintiffs from obtaining a denial of  coverage, allowing the claim to remain in an “investigation” stage indefinitely until it could be  closed, Plaintiffs gave up, and/or the statute of limitations ran.    90.  Only after Plaintiff retained counsel and through them insisted upon a coverage  decision did Defendant ultimately deny the claim on August 25, 2020, more than three months  after the claim was submitted. Ex. 15.    91.  By denying Plaintiffs’ claims without inspecting the Delis premises, Defendant  has waived any right to inspect those premises, deny coverage for any reason related to  conditions at those locations, or raise any defense related to conditions at those locations or facts  specific to the Delis.     93.  Defendant accepted the premiums paid by the Delis with no intention of providing  lost business income, physical damage, civil authority, or other applicable coverage for claims  like those submitted by Plaintiffs and the proposed Class members and which were denied by  Defendant.    94.  Defendant’s rejection of the Delis’ claims was part of a policy by Defendant to  limit its losses during this pandemic, notwithstanding that the Policies provide coverage for  losses due to loss of use of property and from Covid-19 orders issued by civil authorities (among  other coverage).   95.  Although industry trade groups have argued that insurance companies do not have  the funds to pay claims related to the Coronavirus and will require government assistance, the  reality is that insurers are simply trying to minimize their exposure.  “According to data from  ratings firm A.M. Best Co., the insurance industry as a whole has $18.4 billion in net reserves for  future payouts.18    97.  Defendant’s wrongful denials of the Plaintiffs’ claims were not isolated incidents.   Rather, on information and belief, Defendant has engaged in the same misconduct, alleged herein  with respect to Plaintiffs, in connection with claims submitted by numerous of Defendant’s  insureds who have suffered losses related to the Coronavirus pandemic and submitted claims  which were categorically denied.     98.  Plaintiffs’ claims and those of the proposed Class all arise from a single course of  conduct by Defendant: its systematic and blanket refusal to provide any coverage for business  losses related to the COVID-19 pandemic and the related actions taken by civil authorities to  suspend business operations.   99.  Defendant’s wrongful conduct alleged herein has caused significant damage, and  if left unchecked will continue to cause significant damage to Plaintiffs and the other members of  the proposed Class.  100.  Defendant’s categorical treatment, failure to investigate in good faith, and denial  of Plaintiffs’ and the Class members’ claims appears to be part of a broader strategy being  employed by the insurance industry generally, to broadly deny claims for business interruption  coverage related to the Coronavirus pandemic, as has been widely reported by the media and  resulted in numerous lawsuits brought by businesses against property insurance companies  throughout the country.   V.  A.  The Rapid Spread of Coronavirus.......................................................................... 4  B.  Governments Around the Country Order Everyone to Shelter in Place ................ 6  C.  The Delis Suspend Operations ............................................................................. 10  D.  These Losses Are Covered Business Interruptions .............................................. 12  E.  Defendant’s Denial of Plaintiffs’ Insurance Claim .............................................. 17  V.  A.  The Rapid Spread of Coronavirus   FAIR DEALING .............................................................................................................. 26  THIRD CAUSE OF ACTION DECEPTIVE BUSINESS PRACTICES UNDER N.Y.  GEN. BUS. LAW § 349, ET SEQ. .................................................................................. 28  STAT. § 42-110A, ET SEQ. ............................................................................................ 31  FIFTH CAUSE OF ACTION DECLARATORY RELIEF ......................................................... 35  VII.  VI.  CAUSES OF ACTION .................................................................................................... 25  FIRST CAUSE OF ACTION BREACH OF CONTRACT ........................................................ 25 