Appeal from the United States District Court for the Eastern District of Kentucky at Covington.
No. 2:20-cv-00138—William O. Bertelsman, District Judge.
Decided and Filed: January 12, 2022
Before: GIBBONS, READLER, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
MURPHY, Circuit Judge. Ryan Estes, a dentist, conducts his dental practice through a
professional services corporation named Ryan P. Estes, D.M.D., M.S., P.S.C. This corporation,
which we will call “Estes,” operates two dental offices in Kentucky. In response to the COVID19 pandemic, Kentucky temporarily barred healthcare corporations like Estes from providing
nonemergency care. Estes lost substantial income as a result. The company sought to recover
this money under a property insurance policy it had purchased from Cincinnati Insurance
Company. The policy required Cincinnati Insurance to pay Estes for lost business income that
results from a “direct” “physical loss” to its dental offices. Policy, R.23-4, PageID 763, 783.
This appeal requires us to consider whether the COVID-19 pandemic or the Kentucky shutdown
orders caused such a physical loss to Estes’s offices so as to allow it to recover its lost income.
We and other circuit courts have uniformly interpreted this “physical loss” language not to cover
similar pandemic-related claims under the laws of many other states. Because we believe
Kentucky’s highest court would agree with these decisions, we affirm the dismissal of Estes’s
complaint. |