Jones additionally noted in the opinion that there is "unanimity among our colleagues [within the Third Circuit federal courts] on this exact issue" of how "physical" loss or damage commercial insurance policy provisions should be interpreted when insured businesses sue for a denial of COVID-19-caused loss.

"We have yet to identify a decision within the Third Circuit that has reached a result contrary to the one we reach today," he said.

To some extent Jones also apparently considered other federal opinions, including some outside of the Third Circuit, on the issue of claimed COVID-19-caused loss coverage under policies covering "physical" loss or damage. He wrote in the Feb. 8-issued opinion that, "like thousands of similarly situated business owners, plaintiffs challenged that denial [of COVID-19-caused loss coverage] in federal court," before adding that "the vast majority of courts analyzing these claims have sided with the insurers, largely agreeing that the commercial insurance policies unambiguously foreclosed coverage where the business property suffered no physical damage or any tangible injury other than pure economic loss."

In a footnote, Jones further noted that "by one measure, nearly 1,500 COVID-19 insurance disputes were filed in state and federal court in 2020," while citing to the University of Pennsylvania Carey Law School's online "Covid Coverage Litigation Tracker."

In the case before Jones, Maudlin's, a now shuttered restaurant in South Carolina, sued its commercial insurer, Pennsylvania National Mutual Casualty Insurance Co., in May 2020 after the company had denied its claim for losses tied to customers staying away from the restaurant as COVID-19 spread and officials urged them to remain home.

Maudlin's and its former owner, Richard Kahn, had hoped their business losses would be covered by an "all-risk" policy they'd bought from National Mutual Casualty "that covered all risks of loss unless expressly excluded," according to Jones. And they'd brought claims, he added, for breach of contract, breach of the duty of good faith and fair dealing and declaratory relief.

Specifically before Jones, he wrote, was the policy's "business income" coverage provision and its "civil authority" provision.

In addressing coverage under the business income provision, Jones wrote that, under the provision, "the suspension of business operations must have been caused by direct physical loss of or damage to property." And he said "plaintiffs argue that because the policy does not define 'direct physical loss,' the provision is ambiguous that since their interpretation of the term … is reasonable, the [defendant's] motion [to dismiss the action] must be denied."

Jones then wrote "the term is clear when one considers the ordinary meaning of the words and when read in the context of the policy."

In taking up the civil authority provision, Jones wrote that "like the business income coverage provision, [it] expressly requires some nexus to 'direct physical loss of or damage to property.'" Moreover, he wrote, "the civil authority provision requires a covered cause of loss [that damages or causes a physical loss of] another property in the immediate area of the insured property, prompting a civil authority to respond to the covered cause of loss."

"Plaintiffs here do not allege any loss of or damage to another property caused by any covered cause of loss that triggered an action of civil authority. Rather, plaintiffs only allege that South Carolina's orders to avoid public spaces constituted a prohibition of access to plaintiffs' business property," Jones noted.

Benjamin Johns, a Chimicles Schwartz Kriner & Donaldson-Smith partner, represented the plaintiffs Kahn and Aark Enterprise d/b/a Maudlin. He could not be reached for comment.

Eric D. Freed, a Cozen O'Connor member, is an attorney for National Mutual Casualty and also couldn't be reached.