KIDS INDOOR PLAYGROUND, INC., DBA We Play v. Northfield Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIDS INDOOR PLAYGROUND, INC.,
DBA We Play,
Plaintiff-Appellant,
v.
NORTHFIELD INSURANCE COMPANY,
Defendant-Appellee,
and
DOES, 1 through 50, inclusive,
Defendant.
No. 23-55076
D.C. No.
2:22-cv-02918-FMO-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted December 7, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Plaintiff-Appellant Kids Indoor Playground appeals from the district court’s
dismissal of its claims that its insurance policy covers business losses sustained
due to the COVID-19 virus and related government shutdown orders. We have
jurisdiction under 28 U.S.C. § 1291 and review de novo. Mudpie, Inc. v. Travelers
Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021) (citation omitted). We
affirm.
Kids Indoor Playground bought a commercial property insurance policy
(“Policy”) from Northfield Insurance Company (“Northfield”) that covers “direct
physical loss of or damage to Covered Property.” The Policy excludes coverage
for “loss due to virus or bacteria.” Under the virus exclusion, “[Northfield] will
not pay for loss or damage caused by or resulting from any virus, bacterium or
other microorganism that induces or is capable of inducing physical distress,
illness or disease.”
The Policy’s virus exclusion unambiguously bars coverage for Kids Indoor
Playground’s claims of loss and damage. See Pardee Constr. Co. v. Ins. Co. of the
W., 92 Cal. Rptr. 2d 443, 451 (Ct. App. 2000). As is plain, SARS-CoV-2 is a
virus. There are no limitations in the exclusion that would suggest the COVID-19
virus is not a “virus” under the Policy. And Kids Indoor Playground’s alternative
argument—that the COVID-19 government shutdown orders, not the COVID-19

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3
virus, caused its business losses—is foreclosed by our decision in Mudpie.1 See
15 F.4th at 893–94.
Because the virus exclusion bars Kids Indoor Playground’s claims, we need
not address its other arguments.
AFFIRMED.
1 Kids Indoor Playground argues that Mudpie’s conclusion is based on
reasoning that “is inherently flawed.” This argument is unavailing because we our
bound by our prior precedent. See Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc).

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