Vaidik, J.
Case Summary
Last year, a panel of this Court held that the temporary closure and loss of use of the Indiana Repertory Theatre (“IRT”) due to the general societal danger presented by the COVID-19 pandemic did not constitute “physical loss” or “physical damage” to the theatre that would trigger business-income coverage under IRT’s property-insurance policy with The Cincinnati Casualty Company (“Cincinnati”). Ind. Repertory Theatre v. Cincinnati Cas. Co., 180 N.E.3d 403 (Ind. Ct. App. 2022), reh’g denied, trans. denied (“IRT I”). IRT is now back before us with a different theory based on the specific conditions inside the theatre. It argues there is a genuine issue of material fact as to whether virus particles caused physical loss or damage to the air and surfaces in the theatre. We hold, as a matter of law, that virus particles do not cause physical loss or damage to property so as to qualify as a covered loss under the terms of IRT’s policy.
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IRT contends that its designated evidence creates a genuine issue of material fact as to whether the COVID virus physically altered the air and surfaces inside the theatre, precluding summary judgment for Cincinnati. Cincinnati argues the trial court correctly found otherwise. In the alternative, Cincinnati asserts that (1) IRT failed to make the threshold showing that the virus was present in the theatre, (2) air is not “property” under IRT’s policy, and (3) even if coverage was triggered, the Acts or Decisions Exclusion in the policy applies. We need not reach those alternative arguments. We agree with the trial court that, even if the virus was present, it did not physically alter the theatre.
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The trial court did not take issue with the opinions that virus particles can linger in the air and attach or bind to surfaces. However, the court found that these facts do not amount to physical alteration of the air and surfaces because it is undisputed that “the SARS-CoV-2 virus can be cleaned or dies on its own naturally.” Appellant’s App. Vol. II pp. 53, 59. On appeal, IRT emphasizes that its experts opined that cleaning and air filtration, while helpful, are not completely effective in eliminating the virus. But the experts agreed that virus particles not eliminated by cleaning eventually die on their own. The trial court acknowledged that the virus can “repopulate”—new particles take the place of the old—but found that fact to be irrelevant because the new particles will also die naturally if not eliminated by cleaning first. Id. at 60. Ultimately, the court believed “IRT and its experts conflate the potential presence of SARS-CoV-2 inside the theatre with physical alteration to property.” Id. at 57. We agree with and adopt all these conclusions.
Moreover, as IRT acknowledges, the trial court’s decision is consistent with the great weight of authority from around the country…
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The COVID virus, on the other hand, does not render property unusable or uninhabitable. Here, after closing to the public, IRT filmed a performance with a limited audience, had a custodian in the building every day, and eventually started work and rehearsals for a 2020-21 virtual season. We agree with the courts that have distinguished the COVID virus from the contamination at issue in the pre-COVID cases cited by IRT…
The issue in this case is not whether IRT lost income because of the COVID-19 pandemic. It undoubtedly did, just like countless other businesses. The issue is whether that loss is covered by IRT’s insurance policy. The answer is no, because the COVID virus did not physically alter the theatre or otherwise render it physically useless or uninhabitable. We therefore affirm the trial court’s grant of summary judgment for Cincinnati.
Affirmed.