Facts

The Menominee Indian Tribe of Wisconsin doing business as Menominee Casino Resort (MCR), and the Wolf River Development Company (collectively Menominee) operates a variety of businesses in Keshena, Wisconsin. Menominee operates the Thunderbird Complex--a mini casino, restaurant, bar, and outdoor entertainment venue--and the Menominee Tribal Clinic, a multi-service healthcare center. These properties are among those insured under the Tribal Property Insurance Program. As a result of the COVID-19 Pandemic, in March 2020, the State of Wisconsin and the Menominee Tribe issued public health orders that required whole or partial suspension of business at a wide range of establishments. Menominee submitted an insurance claim from Lexington Insurance Company and other insurance companies (defendants) for damages sustained by the COVID-19 pandemic and the resulting government closure orders under its insurance policy. Defendants denied coverage. Menominee brought an action against defendants seeking to recover losses.

PLAINTIFFS' CONTENTIONS: Plaintiffs contended that its property is entitled to recover for losses under the insurance policy due to the COVID-19 pandemic and its related mandated closures. Plaintiffs contended MCR, Thunderbird, and the Menominee Tribal Clinic were covered property under the policy. Plaintiffs contended that the insurance policy included coverage for "Business Interruption", "Extra Expense", "Ingress/Egress", "Civil Authority", "Contingent Time Element", and "Tax Revenue Interruption" as a result of COVID-19. Plaintiff contended that as a result of the COVID-19 closures, plaintiffs suffered losses covered under the policy. Plaintiffs contended that COVID-19 required them to not just clean but install physical barriers that resulted in a physical loss of space. Plaintiff contended that it suffered "actual losses" due to COVID-19.

DEFENDANTS' CONTENTIONS: Defendants denied all of the contentions. Defendants contended that plaintiffs complaint failed to state a claim upon which relief can be granted. Defendants contended that plaintiffs do not plausibly assert coverage under a policy provision because plaintiffs failed to plead there was an actual exposure of COVID-19 on its properties during the policy period. Defendants contended the presence of COVID-19 did not constitute "direct physical loss or damage" because COVID-19 harms people, not property. Defendants contended that the closure orders caused plaintiffs business interruptions, not the actual presence of COVID-19.

Result

Defendants' motion to dismiss is granted with prejudice.