Contract analysis

I. DEPOSITION OBJECTIVES The deposition of Denise Whitford is a critical component of the discovery plan in this coverage-dispute and insurance bad-faith action. Whitford served as the Lead Independent Adjuster retained by Ironclad Indemnity Corporation ("Ironclad") through Arbor Claims Services LLC ("Arbor Claims") to investigate and adjust Verimark Hospitality Group Inc.'s ("VHG") Hurricane Callista claim across th

1. Establish the scope and limitations of Arbor Claims' independent adjustment and the extent to which its conclusions were directed or influenced by Ironclad Indemnity Corporation. In particular, the examination should explore whether Victor Haddon, Ironclad's Senior Vice President of Claims, provided instructions, directives, or suggestions that shaped Whitford's conclusions, her methodology, or the content of her

2. Obtain admissions regarding the nature and extent of physical damage at all three VHG properties from Hurricane Callista. Whitford personally inspected the Grand Key Resort, the Harborview Hotel & Conference Center, and the Sunset Shores boutique resort on October 5, 2022. Her contemporaneous observations are likely to be among the most probative evidence of the severity of the damage. We should seek clear, catego

3. Undermine the reasonableness of Arbor Claims' period-of-restoration analysis and any assertion that VHG unreasonably delayed restoration. One of the four bases for Ironclad's denial is its contention that VHG's claimed periods of closure exceed the "period of restoration" as defined under the policy. Whitford's analysis of this issue — including whether she accounted for post-hurricane contractor shortages, permit

4. Explore Whitford's knowledge of the named-windstorm sub-limit issue and whether she was instructed to adjust under a $15 million business-interruption sub-limit. The disputed $15 million named-windstorm sub-limit is a threshold coverage issue. If Whitford was instructed by Ironclad to apply this sub-limit in her adjustment — and if she did so despite having no independent knowledge of whether it was a valid policy

5. Develop the record on concurrent causation — specifically, Whitford's methodology for differentiating wind damage from storm-surge damage at the Grand Key Resort. The Grand Key Resort sustained the most severe damage and presents the most significant concurrent-causation issues, given the 8–14 feet of storm surge reported in the Monroe County area. The rigor (or lack thereof) of Whitford's methodology for attribut

6. Elicit testimony about Whitford's communications with Victor Haddon and other Ironclad personnel regarding coverage positions and claim valuation. These communications, particularly those that occurred before and during the period between the reservation of rights (October 12, 2022) and the formal denial (February 3, 2023), may reveal that Ironclad was steering the adjustment toward a predetermined coverage outcom

7. Lay foundation for bad-faith claims by establishing that the independent adjuster's own findings may have supported coverage that Ironclad ultimately denied. If Whitford's adjustment concluded that the total loss exceeded the amounts Ironclad was willing to pay — or if her findings contradicted one or more of the four denial bases — this creates a powerful inference that Ironclad's denial was not based on a reason

8. Secure testimony usable in the partial summary judgment motion on the windstorm sub-limit issue, planned for filing on November 1, 2023. Specific admissions regarding whether Whitford was provided a copy of the policy containing (or not containing) the sub-limit, whether she independently verified the sub-limit's existence, and whether she was instructed to apply it will be incorporated into the summary judgment r

II. WITNESS BACKGROUND AND QUALIFICATIONS A. Professional Background The examination should begin by establishing Whitford's credentials, professional background, and qualifications. This serves the dual purpose of building a complete record and demonstrating her level of expertise (which, paradoxically, may support VHG's position to the extent her expert-level findings favored coverage). Questions to cover: • State

III. OCTOBER 5, 2022 PROPERTY INSPECTIONS A. Pre-Inspection Preparation Before turning to the substance of what Whitford observed at each property, establish the foundation for her inspection — what she knew, what she reviewed, and how she prepared. The adequacy of her preparation bears on the reliability of her findings. Questions to cover: • What documents did she review before inspecting the VHG properties on Octo

IV. DAMAGE ASSESSMENT METHODOLOGY AND FINDINGS A. Overall Loss Estimate This section is the substantive heart of the deposition. We need to understand, in granular detail, what Whitford's adjustment concluded, how it was calculated, and how it compares to VHG's claimed losses. Questions to cover: • What was the total property damage estimate prepared by Whitford and/or Arbor Claims for the VHG Hurricane Callista clai

V. PERIOD OF RESTORATION ANALYSIS A. Definition Applied The "period of restoration" is a defined term in the Ironclad policy and is central to the BI coverage dispute. Ironclad contends that VHG's closure periods were unreasonably long and that the period of restoration should be shorter than the actual closures. This section should explore Whitford's analysis of this issue in detail. Questions to cover: • What defin

VI. COMMUNICATIONS WITH IRONCLAD INDEMNITY CORPORATION A. Communications with Victor Haddon This section targets the relationship between the independent adjuster and the insurer's senior claims executive. The extent, nature, and content of these communications will reveal whether the adjustment was truly independent or whether Ironclad was directing the outcome. Questions to cover: • How frequently did she communica

VII. REPORTS AND DOCUMENTATION A. Written Reports Questions to cover: • Identify all written reports prepared by Whitford and/or Arbor Claims Services LLC regarding the VHG Hurricane Callista claim. Request a complete enumeration of each report by title, date, and subject matter. • What are the dates of each report? • Who were the recipients of each report? Were reports provided solely to Ironclad, or were they also

VIII. RELATIONSHIP BETWEEN ADJUSTMENT AND IRONCLAD'S COVERAGE POSITION This section is designed to create the evidentiary foundation for VHG's bad-faith claims. If Whitford's independent adjustment supported a covered loss in an amount significantly exceeding what Ironclad offered or paid, and if Ironclad nonetheless denied the claim, this supports an inference that the denial was unreasonable and made in bad faith.

IX. KEY DOCUMENTS TO USE AT DEPOSITION The following documents should be assembled, organized, and tabbed for use as exhibits during the Whitford deposition. Andrew Fitzpatrick is responsible for preparing the exhibit binder.

1. Ironclad Primary Policy, Policy No. IIC-PRP-2022-07541 — Relevant excerpts to include: business-interruption coverage grant, period-of-restoration definition, named-windstorm provisions (including the disputed $15M sub-limit endorsement, if it appears in the policy form), flood exclusion, and anti-concurrent-causation clause.

2. Ironclad Reservation of Rights Letter — dated October 12, 2022 — issued to VHG, reserving rights under the flood exclusion, the named-windstorm sub-limit, the period-of-restoration limitation, and failure to mitigate.

3. Ironclad Formal Denial Letter — dated February 3, 2023 — issued to VHG, denying the claim on four stated bases.

4. VHG Notice of Loss — submitted September 22, 2022.

5. VHG Sworn Statement in Proof of Loss — filed November 15, 2022, claiming approximately $60 million in total losses.

6. Arbor Claims Inspection Reports and Photographs — from October 5, 2022 and any subsequent inspection dates.

7. Arbor Claims Loss Adjustment Worksheets and Calculations — all working papers supporting the property-damage and BI estimates.

8. All Correspondence between Whitford and Victor Haddon — including emails, letters, memoranda, and notes of telephone calls, for the entire period of the VHG claim adjustment.

9. All Correspondence between Whitford/Arbor Claims and Fendowell Rourke & Stanton LLP — to the extent not withheld on privilege grounds, or to be reviewed by the court in camera if privilege is asserted.

10. Scope-of-Assignment Letter or Engagement Documentation — from Ironclad to Arbor Claims for the VHG claim.

11. Communications between Whitford and VHG Personnel — including any correspondence with Sandra Pellegrini, VP of Risk Management, or other VHG representatives.

12. NHC Data and Storm-Surge Reports for Hurricane Callista — including NHC advisories, NOAA post-storm assessments, and FEMA preliminary flood maps.

13. Monroe County and Lee County Evacuation Orders — dated September 16, 2022 and September 17, 2022, respectively.

14. Whitford's Prior Deposition Transcripts or Testimony — any prior deposition or trial testimony given by Whitford in other Hurricane Callista cases, or in any other case within the past five years, if obtainable.

X. ANTICIPATED OBJECTIONS AND DEFENSE COUNSEL CONDUCT Identification of Defense Counsel The deposition will be defended by Gregory Stanton, Partner, and Meredith Liang, Senior Associate, of Fendowell Rourke & Stanton LLP. Fendowell Rourke & Stanton represents both Ironclad Indemnity Corporation and Pinnacle Surplus Lines (jointly retained). Stanton is experienced trial counsel and can be expected to be aggressive in

1. Work-product protection over communications between Whitford and Ironclad's counsel (Fendowell Rourke & Stanton LLP). Stanton will likely object and instruct the witness not to answer questions regarding the content of any communications between Whitford and Fendowell Rourke & Stanton attorneys, particularly those that occurred after litigation was filed or reasonably anticipated. He may argue that these communica

2. Privilege claims over instructions from Ironclad through counsel. Stanton may assert that instructions conveyed to Whitford by Ironclad through Fendowell Rourke & Stanton are privileged attorney-client communications. However, Whitford is not Ironclad's attorney and is not within the attorney-client relationship; she is a third-party independent contractor. The applicability of the privilege in this context is que

3. Objections to questions about the substance of Ironclad's coverage positions as calling for legal conclusions. Stanton may object when we ask Whitford whether the VHG claim is a "covered loss" or whether the flood exclusion "applies," arguing that these are legal conclusions outside the competence of a lay witness. While the objection has some technical merit, the questions are permissible to the extent they elici

XI. FOLLOW-UP / POST-DEPOSITION ACTIONS Upon completion of the Whitford deposition, the following actions should be taken promptly:

1. Compare Whitford's testimony to Victor Haddon's deposition testimony from July 10, 2023. Identify all inconsistencies, conflicts, and discrepancies between the two witnesses' accounts. Pay particular attention to inconsistencies regarding: • Who initiated communications and who directed the adjustment; • Whether Haddon instructed Whitford to apply the $15M named-windstorm sub-limit; • Whether Haddon instructed Whi

2. Assess whether Whitford's testimony supports or undermines VHG's position on each of the four key issues: • The windstorm sub-limit issue — for incorporation into the partial summary judgment motion planned for filing on November 1, 2023. If Whitford testifies that she was instructed to apply the sub-limit without independently verifying its validity, this supports VHG's argument that the sub-limit was improperly

3. Identify any documents referenced by Whitford during her testimony that have not yet been produced in discovery. Prepare supplemental document requests or, if necessary, a motion to compel production of any outstanding documents, including: • Draft reports and revision history; • Internal Arbor Claims communications regarding the VHG claim; • The scope-of-assignment letter or engagement documentation; • Any supple

4. Evaluate whether Whitford's testimony supports a bad-faith claim against Ironclad — specifically, if her own independent findings supported coverage in an amount exceeding what Ironclad offered or paid, and if Ironclad disregarded or overrode those findings in denying the claim. Prepare a memorandum analyzing the bad-faith implications of her testimony for review by Elaine Forsythe.

5. Prepare a post-deposition summary of Whitford's key admissions and testimony for inclusion in the consolidated key-admissions memorandum, planned for completion by September 5, 2023. This memorandum will be used to support VHG's dispositive motions and to prepare for mediation.

6. Consider whether Whitford's testimony creates a need for rebuttal expert testimony by Jeffrey Caldwell, PE, of Caldwell Engineering Associates Inc. If Whitford's cause-of-loss differentiation methodology is insufficiently rigorous or relies on unsupported assumptions, Caldwell may need to prepare a rebuttal analysis addressing the wind/surge allocation at each property. Coordinate with Caldwell promptly to ensure

7. Consider whether Whitford should be designated as a witness at trial by VHG. Given her status as Ironclad's independent adjuster, she may be called as an adverse or hostile witness under Florida Rule of Civil Procedure 1.451. Her testimony may be particularly powerful if it establishes that the insurer's own adjuster's findings supported coverage that was denied. Discuss trial designation with Elaine Forsythe.

XII. TIME AND LOGISTICS Additional logistical notes: • Confirm location with defense counsel no later than July 22, 2023. • Prepare two complete exhibit binders (one for the witness, one for the examining attorney). Andrew Fitzpatrick to have an additional working copy with blank tabs for marking additional exhibits identified during testimony. • Bring laptop with access to the full document production (Relativity da