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(Reuters) – The 6th U.S. Circuit Court of Appeals said Wednesday that Acuity Insurance’s business income interruption coverage did not extend to a restaurant’s losses from COVID-19 or an Ohio executive order that restricted restaurants to carry-out services, marking the third consecutive win for insurers fighting claims for pandemic-related losses at the federal appellate courts.

A three-judge 6th Circuit panel agreed with Acuity’s attorneys at Hanna, Campbell & Powell that the all-risk policy issued to Santo’s Italian Café in Medina, Ohio, which included business losses “caused by direct physical loss of or damage to property,” clearly did not cover the loss of use of its dine-in facilities or the business downturn generally.

The virus itself did not “physically and directly alter the property,” Chief Circuit Judge Jeffrey Sutton wrote for the panel. And, the governor and health-department’s orders “simply prohibited one use of the property…and through it all did not remotely cause direct physical damage to the property.”

Sutton was joined by Circuit Judges Alice Batchelder and Joan Larsen.

Based on its decision that there was no “covered cause of loss,” the court said it did not need to consider whether the policy’s virus exclusion, or its exclusion for any “ordinance or law” regulating the use of property, would be alternate grounds for ruling for the insurer.

Santo’s attorney, Colin Sammon, did not immediately respond to a request for comment.

John Chlysta of Hanna Campbell praised the opinion for its “logic and common sense,” quoting the court’s conclusion that “insurance ‘is not a general safety net for all dangers,’ and must not be pushed beyond its terms to cover perils or events that were never intended to be covered.”

The restaurant’s arguments drew amicus support from United Policyholders, represented by Plews, Shadley, Racher & Braun and Reed Smith; and from the Restaurant Law Center and the Ohio Restaurant Association, represented by Gabriel Gillett, now with Jenner & Block.

The American Property Casualty Insurance Co. and the National Association of Mutual Insurance Companies, represented by Robinson & Cole, and the Ohio Insurance Institute, represented by Koehler Fitzgerald, filed amicus briefs supporting Acuity.

The decision affirms a December ruling by U.S. District Judge Pamela Barker. The appeal drew added interest because of two pro-plaintiff rulings issued by other judges in the same district in January. In one, the judge found coverage under Zurich American’s policy, but certified his ruling for an interlocutory appeal; however, the 6th Circuit has not yet agreed to hear it.

In the other, the judge certified two coverage questions to the Ohio Supreme Court, which split 4-3 in agreeing to consider the questions.

Chris Kozak of Plews Shadley said in an email Wednesday that United Policyholders ultimately expects “vindication” from the Ohio Supreme Court.

According to the Covid Coverage Litigation Tracker at the University of Pennsylvania Carey Law School, 195 federal appeals are pending over whether business income interruption insurance covers pandemic-related losses.

The 8th and 11th Circuits have also affirmed wins on the merits for the insurers. The 3rd Circuit last month ordered lower-court judges to reconsider their decisions to remand coverage cases to state courts in New Jersey and Pennsylvania.

The case decided Wednesday is Santo’s Italian Cafe v. Acuity Insurance, 6th U.S. Circuit Court of Appeals No. 21-3068.For Santo’s: Colin Sammon, Law Office (sharing time with amicus counsel, Christopher Kozak of Plews, Shadley, Racher & Braun).

For Acuity: John Chlysta of Hanna, Campbell & Powell (sharing time with amicus counsel Stephen Goldman of Robinson & Cole).