RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0250p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ DAKOTA GIRLS, LLC; DUBLIN ASHANIK, LLC; EDUCARE │ OF GREENE, INC.; CAMPBELL FAMILY CHILDCARE, INC.; │ LILLYPAD LEARNING CENTER, LLC; FUQUA NORMAN, │ INC.; EAGLE SCHOOL OF HILLIARD OHIO, INC.; POWELL │ ENTERPRISES, INC.; PARK ENTERPRISES OF OHIO, LLC; > No. 21-3245 PARK SCHOOL OF DUBLIN, LLC; FIXARI SCHOOL OF │ PICKERINGTON, LLC; FIXARI SCHOOL OF REYNOLDSBURG, │ LLC; BURKHOLD ENTERPRISES, LLC; PARK SCHOOL OF │ GAHANNA, LLC; DIMUZIO-SPERANZA ENTERPRISES, INC.; │ CHAMBERS HOLDINGS, INC., │ Plaintiffs-Appellants, │ │ │ v. │ │ PHILADELPHIA INDEMNITY INSURANCE COMPANY, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:20-cv-02035—Sarah Daggett Morrison, District Judge. Decided and Filed: November 5, 2021 Before: SILER, KETHLEDGE, and BUSH, Circuit Judges. _________________ COUNSEL ON BRIEF: Charles H. Cooper, Jr., Sean R. Alto, COOPER & ELLIOTT, Columbus, Ohio, for Appellants. Stephen E. Goldman, Wystan M. Ackerman, ROBINSON & COLE LLP, Hartford, Connecticut, Richard M. Garner, COLLINS, ROCHE, UTLEY & GARNER, LLC, Dublin, Ohio, for Appellee. Christopher E. Kozak, PLEWS SHADLEY RACHER & BRAUN LLP, Indianapolis, Indiana, Timothy J. Fitzgerald, KOEHLER FITZGERALD LLP, Cleveland, Ohio, Laura A. Foggan, CROWELL & MORING LLP, Washington, D.C., for Amici Curiae. No. 21-3245 Dakota Girls, LLC, et al. v. Philadelphia Indemnity Ins. Co. Page 2 _________________ OPINION _________________ BUSH, Circuit Judge. To combat the spread of COVID-19, the Ohio government ordered child-care programs in the state to shut down for around two months beginning in March 2020. As a result, Dakota Girls, LLC and its sixteen co-appellants (collectively, “Dakota Girls”) could not use their facilities for their intended purpose—as private preschools. The consequent lost profits gave rise to claims against their insurer, the Philadelphia Indemnity Insurance Company (“Philadelphia”). Dakota Girls argued that the preschools’ identically worded policies contained four provisions—concerning (1) business and personal property, (2) business income, (3) civil-authority orders, and (4) communicable disease and water-borne pathogens—that provided coverage. Philadelphia disagreed, however, and denied the claims, so Dakota Girls filed suit. It sought damages for breach of contract and the insurer’s alleged bad faith. Yet the district court sided with Philadelphia and granted its motion to dismiss. Dakota Girls then took the present appeal. Soon after, we issued a decision squarely foreclosing coverage under the first three of the aforementioned provisions, a point Dakota Girls now concedes. See Santo’s Italian Café v. Acuity Ins. Co., 15 F.4th 398 (6th Cir. 2021). It thus confines this appeal to the fourth provision, concerning communicable disease and water-borne pathogens. But Dakota Girls’ arguments in favor of coverage fail under the plain language of the policies. So we affirm. I. In its complaint, Dakota Girls invoked four coverage provisions to argue that Ohio’s shutdown order caused the preschools to suffer covered losses. First was their building-and- personal-property coverage, which covers “direct physical loss of or damage to Covered Property.” Dakota Girls argued that …
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