(Claim Brought on Behalf of the Business Income Declaratory Judgment Class)   (Claim Brought on Behalf of the Extra Expense Breach Class)   (Claim Brought on Behalf of the Civil Authority Declaratory Judgment Class)   (Claim Brought on Behalf of the Business Income Breach Class)   (Claim Brought on Behalf of the Civil Authority Breach Class)   (Claim Brought on Behalf of the Sue and Labor Breach Class)   16.  In return for the payment of a premium, Defendant issued Policy No. B4024523178  to Plaintiff for a policy period of February 11, 2020, to February 11, 2021, including a  Businessowners Special Property Coverage Form. Plaintiff has performed all of its obligations  under Policy No. B4024523178, including the payment of premiums. The Covered Property, with  respect to the Special Property Coverage Form, is the Cafe de Mesilla restaurant at 2190 Avenida  de Mesilla, Mesilla, New Mexico.    17.  Plaintiff’s Special Property Coverage Form includes Business Income, Civil  Authority, Extra Expense, and Sue and Labor coverages.    19.  In the Special Property Coverage Form, Defendant did not exclude or limit  coverage for losses from viruses.    20.  Losses due to COVID-19 are a Covered Cause of Loss under the Defendant’s  insurance policies with the Special Property Coverage Form.    21.  In the Special Property Coverage Form, Defendant agreed to pay for its insureds’  actual loss of Business Income sustained due to the necessary suspension of its operations during  the “period of restoration” caused by direct physical loss or damage. A “partial slowdown or  complete cessation” of business activities at the Covered Property is a “suspension” under the  policy, for which Defendant agreed to pay for loss of Business Income during the “period of  restoration” that occurs within 12 consecutive months after the date of direct physical loss or  damage.   22.  “Business Income” means the net income (or loss) before tax that Plaintiff would  have earned if no physical loss or damage had occurred.   24.  In the Special Property Coverage Form, Defendant also agreed to pay necessary  Extra Expense that its insureds incur during the “period of restoration” that the insureds would not  have incurred if there had been no direct physical loss or damage to the Covered Property.    25.  “Extra Expense” means expenses “to avoid or minimize the ‘suspension’ of  business and to continue ‘operations,’ ” and to repair or replace property.    26.  Defendant also agreed to “pay for the actual loss of Business Income” that Plaintiff  sustains and any Extra Expense caused by action of civil authority that prohibits access to the  Covered Property when a Covered Cause of Loss causes damage to property other than the  Covered Property and the civil authority prohibits access to the property and its surrounding area  and takes such action in response to dangerous physical conditions.   28.  Losses caused by COVID-19 and the related orders issued by local, state, and  federal authorities triggered the Business Income, Extra Expense, Civil Authority, and Sue and  Labor provisions of the Continental policy.  B. The Covered Cause of Loss    29.  The presence of COVID-19 has caused civil authorities throughout the country to  issue orders requiring the suspension of business at a wide range of establishments, including civil  authorities with jurisdiction over Plaintiff’s business (the “Closure Orders”).    30.  On March 11, 2020, New Mexico Governor Michelle Lujan Grisham issued  Executive Order 2020-04, “Order Declaring a State of Public Health Emergency and Invoking the  Powers Provided by All the Hazard Emergency Management Act and the Emergency Licensing  Act.”    31.  The purpose of Executive Order 2020-04 was to minimize the spread of COVID- 19 pandemic and to minimize the attendant physical and economic harms. This order further  proclaimed a public health emergency.   32.  On March 12, Kathyleen Kunkel, the Secretary of the State of New Mexico’s  Department of Health, limited public gathering of more than 100 people in order to protect the  health, safety, and wellbeing of residents of the State of New Mexico from COVID-19.   33.  On March 24, 2020, Secretary Kunkel, prohibited public gatherings of more than 5  people. Under the order, restaurants like Plaintiff’s and other places of public accommodation were  prohibited from opening to the public for on-site consumption and were to remain closed for the  duration of Executive Order 2020-04. The order was later extended through April 30, 2020.   35.  The presence of COVID-19 caused “direct physical loss of or damage to” each  “Covered Property” under the Plaintiff’s policy and the policies of the other Class members by  denying use of and damaging the Covered Property and by causing a necessary suspension of  operations during a period of restoration.    36.  The Closure Orders prohibited access to Plaintiff’s and the other Class members’  Covered Property, and the area immediately surrounding Covered Property, in response to  dangerous physical conditions resulting from a Covered Cause of Loss.    37.  As a result of the presence of COVID-19 and the Closure Orders, Plaintiff and the  other Class members lost Business Income and incurred Extra Expense.    38.  On or about March 18, 2020, Plaintiff submitted a claim of loss to Defendant under  Plaintiff’s policy.    39.  On April 14, 2020, Defendant denied Plaintiff’s claims.   40.  Defendant has, on a widescale basis with many if not all of its insureds, refused to  provide Business Income, Extra Expense, Civil Authority, and Sue and Labor coverage due to  COVID-19 and the resultant executive orders by civil authorities that have required the suspension  of business.  41.  Plaintiff brings this action pursuant to Rules 23(a), 23(b)(1), 23(b)(2), 23(b)(3), and  23(c)(4) of the Federal Rules of Civil Procedure, individually and on behalf of all others similarly  situated.    44.  This action has been brought and may properly be maintained on behalf of each  Class proposed herein under the criteria of Rule 23 of the Federal Rules of Civil Procedure.    45.  Numerosity—Federal Rule of Civil Procedure 23(a)(1). The members of each  defined Class are so numerous that individual joinder of all Class members is impracticable. While  Plaintiff is informed and believe that there are thousands of members of each Class, the precise  number of Class members is unknown to Plaintiff but may be ascertained from Defendant’s books  and records. Class members may be notified of the pendency of this action by recognized, Court-  approved notice dissemination methods, which may include U.S. Mail, electronic mail, internet  postings, and/or published notice.    47.  Typicality—Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are  typical of the other Class members’ claims because Plaintiff and the other Class members are all  similarly affected by Defendant’s refusal to pay under its Business Income, Civil Authority, Extra  Expense, and Sue and Labor coverages. Plaintiff’s claims are based upon the same legal theories  as those of the other Class members. Plaintiff and the other Class members sustained damages as  a direct and proximate result of the same wrongful practices in which Defendant engaged.    49.  Inconsistent or Varying Adjudications and the Risk of Impediments to Other  Class Members’ Interests—Federal Rule of Civil Procedure 23(b)(1). Plaintiff seeks class- wide adjudication as to the interpretation, and resultant scope, of Defendant’s Business Income,  Civil Authority, Extra Expense, and Sue and Labor coverages. The prosecution of separate actions  by individual members of the Classes would create an immediate risk of inconsistent or varying  adjudications that would establish incompatible standards of conduct for the Defendant. Moreover,  the adjudications sought by Plaintiff could, as a practical matter, substantially impair or impede  the ability of other Class members, who are not parties to this action, to protect their interests.    50.  Declaratory and Injunctive Relief—Federal Rule of Civil Procedure 23(b)(2).  Defendant acted or refused to act on grounds generally applicable to Plaintiff and the other Class  members, thereby making appropriate final injunctive relief and declaratory relief, as described  below, with respect to the Class members.    51.  Superiority—Federal Rule of Civil Procedure 23(b)(3). A class action is  superior to any other available means for the fair and efficient adjudication of this controversy,  and no unusual difficulties are likely to be encountered in the management of this class action.   Individualized litigation creates a potential for inconsistent or contradictory judgments and  increases the delay and expense to all parties and the court system. By contrast, the class action  device presents far fewer management difficulties, and provides the benefits of single adjudication,  economy of scale, and comprehensive supervision by a single court.  52.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    54.  Plaintiff’s Continental policy, as well as those of the other Business Income Breach  Class members, are contracts under which Defendant was paid premiums in exchange for its  promise to pay Plaintiff and the other Business Income Breach Class members’ losses for claims  covered by the policy.    55.   In the Special Property Coverage Form, Defendant agreed to pay for its insureds’  actual loss of Business Income sustained due to the necessary suspension of its operations during  the “period of restoration.”    56.  A “partial slowdown or complete cessation” of business activities at the Covered  Property is a “suspension” under the policy, for which Defendant agreed to pay for loss of Business  Income during the “period of restoration” “that occurs within 12 consecutive months after the date  of direct physical loss or damage.”    57.  “Business Income” means net income (or loss) before tax that Plaintiff and the other  Business Income Breach Class members would have earned “if no physical loss or damage had  occurred.”    58.  COVID-19 caused direct physical loss and damage to Plaintiff’s and the other  Business Income Breach Class members’ Covered Properties, requiring suspension of operations  at the Covered Properties. Losses caused by COVID-19 thus triggered the Business Income  provision of Plaintiff and the other Business Income Breach Class members’ Continental policies.    60.  By denying coverage for any Business Income losses incurred by Plaintiff and the  other Business Income Breach Class members in connection with the COVID-19 pandemic,  Defendant has breached its coverage obligations under the Policies.    61.  As a result of Defendant’s breaches of the Policies, Plaintiff and the other Business  Income Breach Class members have sustained substantial damages for which Defendant is liable  in an amount to be established at trial.   62.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    63.  Plaintiff brings this Count individually and on behalf of the other members of the  Civil Authority Breach Class.    64.  Plaintiff’s Continental policy, as well as those of the other Civil Authority Breach  Class members, are contracts under which Defendant was paid premiums in exchange for its  promise to pay Plaintiff’s and the other Civil Authority Breach Class members’ losses for claims  covered by the policy.    65.  Defendant promised to “pay for the actual loss of Business Income” sustained “and  any Extra Expense caused by action of civil authority that prohibit access to” the Covered Property  when a Covered Cause of Loss causes damage to property other than the Covered Property and  the civil authority takes its action “in response to dangerous physical conditions.”    66.  The Closure Orders triggered the Civil Authority provision under Plaintiff’s and  the other members of the Civil Authority Breach Class’s Continental insurance policies.    68.  By denying coverage for any business losses incurred by Plaintiff and other  members of the Civil Authority Breach Class in connection with the Closure Orders and the  COVID-19 pandemic, Defendant has breached its coverage obligations under the Policies.    69.  As a result of Defendant’s breaches of the Policies, Plaintiff and the other members  of the Civil Authority Breach Class have sustained substantial damages for which Defendant is  liable in an amount to be established at trial.   70.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    71.  Plaintiff brings this Count individually and on behalf of the other members of the  Extra Expense Breach Class.    72.  Plaintiff’s Continental insurance policy, as well as those of the other Extra Expense  Breach Class members, are contracts under which Defendant was paid premiums in exchange for  its promise to pay Plaintiff and the other Extra Expense Breach Class members’ losses for claims  covered by the policy.    73.  In the Special Property Coverage Form, Defendant agreed to pay necessary Extra  Expense that its insureds incur during the “period of restoration” that the insureds would not have  incurred if there had been no direct physical loss or damage to the Covered Property.    74.   “Extra Expense” means expenses “to avoid or minimize the suspension of business  and to continue ‘operations,’” and also includes expenses “to repair or replace property.”    75.  Due to COVID-19 and the Closure Orders, Plaintiff and the other members of the  Extra Expense Breach Class incurred Extra Expense at Covered Property.    77.  By denying coverage for any business losses incurred by Plaintiff and the other  members of the Extra Expense Breach Class in connection with the Closure Orders and the  COVID-19 pandemic, Defendant has breached its coverage obligations under the Policies.    78.  As a result of Defendant’s breaches of the Policies, Plaintiff and the other members  of the Extra Expense Breach Class have sustained substantial damages for which Defendant is  liable in an amount to be established at trial.   79.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    80.  Plaintiff brings this Count individually and on behalf of the other members of the  Sue and Labor Breach Class.    81.  Plaintiff’s Continental policy, as well as those of the other Sue and Labor Breach  Class members, are contracts under which Defendant was paid premiums in exchange for its  promise to pay Plaintiff and the other Sue and Labor Breach Class members’ losses for claims  covered by the policy.    82.  In the Special Property Coverage Form, Defendant agreed to give due consideration  in settlement of a claim to expenses incurred in taking all reasonable steps to protect Covered  Property from further damage.    84.  Plaintiff and the other members of the Sue and Labor Breach Class have complied  with all applicable provisions of the policy and/or those provisions have been waived by  Defendant, or Defendant is estopped from asserting them, and yet Defendant has abrogated its  insurance coverage obligations pursuant to the policies’ clear and unambiguous terms.    85. As a result of Defendant’s breaches of the policies, Plaintiff and the other  members of the Sue and Labor Breach Class have sustained substantial damages for which  Defendant is liable in an amount to be established at trial.   85.  By denying coverage for any Sue and Labor expenses incurred by Plaintiff and the  other members of the Sue and Labor Breach Class in connection with the Closure Orders and the  COVID-19 pandemic, Defendant has breached its coverage obligations under the Policies.    86.   87.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    88.  Plaintiff brings this Count individually and on behalf of the other members of the  Business Income Declaratory Judgment Class.    89.  Plaintiff’s Continental policy, as well as those of the other Business Income  Declaratory Judgment Class members, are contracts under which Defendant was paid premiums  in exchange for its promise to pay Plaintiff and the other Business Income Declaratory Judgment  Class members’ losses for claims covered by the Policy.    91.  Defendant has denied claims related to COVID-19 on a uniform and class wide  basis, without individual bases or investigations, such that the Court can render declaratory  judgment irrespective of whether members of the Class have filed a claim.    92.  An actual case or controversy exists regarding Plaintiff’s and the other Business  Income Declaratory Judgment Class members’ rights and Defendant’s obligations under the  Policies to reimburse Plaintiff for the full amount of Business Income losses incurred by Plaintiff  and the other Business Income Declaratory Judgment Class members in connection with  suspension of their businesses stemming from the COVID-19 pandemic.    93.  Pursuant to 28 U.S.C. § 2201, Plaintiff and the other Business Income Declaratory  Judgment Class members seek a declaratory judgment from this Court declaring the following:   a. Plaintiff’s and the other Business Income Declaratory Judgment Class members’  Business Income losses incurred in connection with the Closure Orders and the  necessary interruption of their businesses stemming from the COVID-19 pandemic  are insured losses under their Policies; and   b. Defendant is obligated to pay Plaintiff and the other Business Income Declaratory  Judgment Class members for the full amount of the Business Income losses  incurred and to be incurred in connection with the Closure Orders during the period  of restoration and the necessary interruption of their businesses stemming from the  COVID-19 pandemic.   94.  Plaintiff repeats and realleges Paragraphs 1–51 as if fully set forth herein.    96.  Plaintiff’s Continental policy, as well as those of the other Civil Authority  Declaratory Judgment Class members, are contracts under which Defendant was paid premiums  in exchange for its promise to pay Plaintiff and the other Civil Authority Declaratory Judgment  Class members’ losses for claims covered by the Policy.    97.  Plaintiff and the other Civil Authority Declaratory Judgment Class members have  complied with all applicable provisions of the Policies and/or those provisions have been waived  by Defendant or Defendant is estopped from asserting them, and yet Defendant has abrogated its  insurance coverage obligations pursuant to the Policies’ clear and unambiguous terms and has  wrongfully and illegally refused to provide coverage to which Plaintiff is entitled.    98.  Defendant has denied claims related to COVID-19 on a uniform and class wide  basis, without individual bases or investigations, such that the Court can render declaratory  judgment irrespective of whether members of the Class have filed a claim.    A. The Special Property Coverage Form Protecting Plaintiff  