Contract analysis

I. PURPOSE AND BACKGROUND This memorandum sets forth the detailed examination outline for the deposition of Franklin Orde, currently scheduled for Monday, August 28, 2023. The outline has been prepared in advance of the deposition to ensure that the examination is comprehensive, strategically organized, and focused on eliciting the testimony most critical to the claims advanced by our client, Verimark Hospitality Gro

II. DEPOSITION OBJECTIVES The deposition of Franklin Orde should be structured to accomplish the following nine primary objectives, listed in approximate order of priority:

1. Establish Orde's Role and Relationship with VHG. As a threshold matter, we must confirm that Orde was the lead broker responsible for placing and servicing VHG's property insurance program, including the July 2022 renewal. This establishes Orde's personal knowledge and his authority to negotiate coverage terms on VHG's behalf. We should elicit testimony regarding the scope of his responsibilities, the duration of

2. Confirm the Windstorm Sub-Limit Deletion. This is the single most important objective. We must elicit clear, unambiguous testimony that during the July 2022 renewal negotiations, Ironclad's underwriter agreed to delete the $15 million named-windstorm business-interruption sub-limit from the primary layer policy in exchange for an increased premium. Orde's testimony on this point must be specific as to the identity

3. Document the Communications Chain. We need to identify every written and oral communication between Orde (or any other Tidewater personnel) and Ironclad's underwriting department regarding the sub-limit deletion. This includes emails, telephone calls, in-person meetings, and any other form of communication. For each communication, we should establish the date, participants, substance, and whether any written recor

4. Establish the Representations Made to VHG. We must confirm what Orde communicated to Sandra Pellegrini and other VHG personnel about the deletion of the sub-limit. This is important both for establishing VHG's reliance on the broker's representations and for demonstrating that VHG reasonably believed the sub-limit had been removed when it accepted the renewal terms and paid the premium.

5. Identify the Premium Impact. We must confirm that the primary layer premium of $980,000 reflected the removal of the windstorm sub-limit — that is, that the premium was higher than it would have been if the sub-limit had remained in place. This evidence of additional premium consideration supports VHG's position that the deletion was part of the bargained-for exchange and was not merely a preliminary discussion po

6. Establish the Binder and Policy Issuance Timeline. We need to clarify the sequence of the binder, any interim endorsements, and the final policy form, and to identify whether any discrepancy between the binder terms and the final policy form was identified or communicated to VHG or to Ironclad. This timeline is critical to addressing Ironclad's expected argument that the final policy form controls and that the bin

7. Address the Excess Layers. We should confirm Orde's involvement in placing the three excess layers (Pinnacle Surplus Lines Inc., Montclair Assurance Company, and Sovereign Re Ltd.), all of which are follow-form to the Ironclad primary policy, and establish whether the sub-limit deletion was communicated to the excess carriers during the renewal process. This affects the scope of coverage available under the entire

8. Lay Foundation for Impeachment of Ironclad's Position. We should obtain testimony that directly contradicts Ironclad's assertion that the sub-limit remained in effect for the 2022–2023 policy period. Orde is uniquely positioned to testify about what Ironclad's own underwriting department represented regarding the sub-limit, and any such testimony will be powerful evidence against Ironclad's current coverage defens

9. Probe for Any Adverse Information. Finally, we should explore whether Orde is aware of any basis for Ironclad's claim that the sub-limit was not deleted, and identify any ambiguity in the policy endorsements that could support Ironclad's position. It is better to learn about any adverse facts during a deposition we control than to be surprised by them at trial or during cross-examination. If there is ambiguity in

III. EXAMINATION TOPICS AND QUESTIONS The following sections set forth the substantive areas to be covered during the examination, together with suggested questions and lines of inquiry. The questions are organized thematically rather than in strict chronological order, though the examination itself should generally proceed chronologically within each topic area. Tiffany should use her judgment to adjust the order an

1. Timeline of Renewal Negotiations • Mr. Orde, let's talk about the July 2022 renewal process. When did the renewal process for VHG's property/BI program typically begin, relative to the July 1 inception date? • So for the July 1, 2022 renewal, would the process have begun approximately 60 to 90 days before inception — that is, in approximately April or May 2022? • Can you walk me through the general timeline of the

2. Ironclad Underwriter Identification • Who at Ironclad Indemnity Corporation was the underwriter or underwriters with whom you negotiated the terms of the July 2022 renewal? • Please provide the full name, title, and office location of each Ironclad underwriter you dealt with on this renewal. • Was there a single primary underwriter at Ironclad who had authority to agree to coverage terms, or were there multiple pe

3. Substance of Negotiations Regarding the Sub-Limit • Did you specifically request the deletion of the $15 million named-windstorm business-interruption sub-limit during the renewal negotiations? • When did you first raise the sub-limit deletion with Ironclad? What was the approximate date? • How did you communicate the request — by email, telephone call, or in person? • What was Ironclad's initial response to the r

4. Premium Consideration • Let's talk about the premium. The annual premium for the Ironclad primary layer for the July 1, 2022 through July 1, 2023 policy period was $980,000. Is that correct? • What was the primary layer premium for the prior policy year — July 1, 2021 through July 1, 2022, when the $15 million sub-limit was in place? • Was the $980,000 premium for the 2022 renewal higher than the prior-year premiu

5. Form of Agreement — Documentary Record • Was the sub-limit deletion memorialized in writing at any point during the renewal negotiations? • Please identify every document that reflects or memorializes the agreement to delete the named-windstorm sub-limit. This includes emails, letters, binder confirmations, endorsements, or any other written record. • Was a binder issued prior to the policy inception date of July

I. Documents to Reference / Use as Exhibits The following documents should be assembled and organized in advance of the deposition for potential use as exhibits during the examination. Andrew Fitzpatrick will manage the exhibits during the deposition.

1. Tidewater's renewal submission to Ironclad (spring/early summer 2022), including any cover letter, marketing submission, or renewal application that references the request to delete the named-windstorm sub-limit.

2. Emails between Orde and Ironclad underwriter(s) regarding the sub-limit deletion, including any chain of correspondence reflecting the negotiation, counter-proposals, and final agreement.

3. Binder for policy IIC-PRP-2022-07541, dated on or about July 1, 2022, including all terms and conditions stated in the binder and any reference to the sub-limit.

4. Final policy form IIC-PRP-2022-07541, including all endorsements, riders, and schedules. Pay particular attention to any endorsement or rider that addresses, references, or purports to impose the named-windstorm sub-limit.

5. Any endorsement or rider reflecting (or purporting to reflect) the windstorm sub-limit — if the final policy contains such an endorsement, this document should be marked as a separate exhibit so that Orde can testify about the discrepancy between the agreed terms and the endorsement language.

6. Premium invoices showing the $980,000 primary layer premium for the July 1, 2022 through July 1, 2023 policy period.

7. Comparison of prior-year premium vs. 2022 renewal premium — to demonstrate the premium increase associated with sub-limit removal. If a formal comparison document does not exist, we should prepare a demonstrative exhibit showing the prior-year premium alongside the 2022 renewal premium.

8. Communications from Orde to Sandra Pellegrini regarding the renewal terms, including any email, letter, or summary of coverage confirming the deletion of the sub-limit.

9. Orde's file memoranda or internal notes regarding the VHG renewal, including any contemporaneous notes of telephone calls or meetings with Ironclad's underwriting department.

10. All documents produced by Tidewater in response to the Subpoena Duces Tecum served June 20, 2023. These documents should be reviewed in full, and any key documents not otherwise listed above should be flagged for potential use as exhibits.

11. Prior-year Ironclad policy (July 1, 2021 through July 1, 2022), including the named-windstorm sub-limit endorsement, for comparison with the July 2022 renewal policy. All exhibits should be pre-marked with sequential exhibit stickers before the deposition. Andrew should prepare a master exhibit list with brief descriptions of each document. J. Orde's Understanding of Other Coverage Issues While the named-windstor

1. Final Policy Form vs. Binder. Defense counsel will almost certainly probe whether the sub-limit deletion was definitively reflected in the final policy form or whether it remained in a draft or interim status. Ironclad's position appears to be that the binder is not the operative contract and that the final policy form — which may contain the sub-limit endorsement — controls the coverage. We should be prepared for

2. Preliminary vs. Binding Communications. Defense counsel may suggest that Orde's communications with Ironclad's underwriting department regarding the sub-limit deletion were preliminary and non-binding — that is, that the underwriter's agreement to delete the sub-limit was tentative or conditional, and that the deletion was never finalized. We should affirmatively establish that the agreement was definitive and unc

3. Record-Keeping and Documentation. Defense counsel may question Orde's record-keeping practices and probe whether he has contemporaneous written documentation of the agreement to delete the sub-limit, or whether he is relying primarily on memory. If Orde's testimony is based largely on recollection rather than documents, defense counsel will attempt to undermine his credibility. We should identify and introduce as

4. Broker Error Theory. Defense counsel may attempt to shift blame to Tidewater for any ambiguity in the final policy form. The argument would be that if the sub-limit was not clearly deleted in the final policy, it is because Tidewater failed to follow through on the negotiation or failed to review the final policy form carefully — i.e., that the problem is broker error, not insurer misconduct. This theory could hav

5. Tidewater's E&O Exposure. Related to the broker error theory, defense counsel may ask whether Tidewater has notified its own professional liability (errors and omissions) insurer of a potential claim arising from this coverage dispute. This is a sensitive area. We should anticipate this line of questioning and consider whether to instruct the witness not to answer on relevance or privilege grounds, depending on th

6. Orde's Potential Bias. Defense counsel may suggest that Orde has a personal interest in testifying that the sub-limit was deleted because, if it was not, Orde's failure to secure the deletion would constitute a professional error that could expose him and Tidewater to liability. This potential bias should be addressed head-on during our examination if possible. We should prepare Tiffany to address each of these ar

IV. KEY TESTIMONY WE NEED FROM THIS WITNESS To summarize, the following are the essential pieces of testimony that must be obtained from Franklin Orde during this deposition:

1. Unequivocal Confirmation of the Deletion. We need Orde to testify, clearly and without qualification, that Ironclad's underwriter agreed to delete the $15 million named-windstorm business-interruption sub-limit during the July 2022 renewal negotiations. This testimony must be specific enough to withstand summary judgment scrutiny — i.e., it must identify the Ironclad underwriter who agreed, the date of the agreeme

2. Identification of Specific Communications. We need Orde to identify the specific emails, telephone calls, and/or meetings in which the deletion was discussed and agreed upon, including dates, participants, and substance. Contemporaneous written communications (particularly emails) are the most valuable evidence and should be identified and introduced as exhibits.

3. Confirmation of Premium Consideration. We need Orde to confirm that VHG paid an increased premium of $980,000 for the primary layer that reflected the removal of the sub-limit. This establishes that the deletion was part of the bargained-for exchange and was supported by consideration. We should also establish the prior-year premium for comparison purposes to quantify the premium differential attributable to the d

4. Confirmation of Representations to VHG. We need Orde to testify that he communicated to Sandra Pellegrini and/or other VHG personnel that the sub-limit had been deleted, and that VHG accepted the renewal terms and paid the premium in reliance on those representations. This supports VHG's reasonable expectations argument and any potential estoppel or reformation claim.

5. Testimony Regarding Any Policy-Form Discrepancy. If the final issued policy contains ambiguous language regarding the sub-limit, Orde's testimony about what was agreed and what Ironclad's underwriter represented will be critical to establishing that the policy should be reformed or interpreted to reflect the parties' actual agreement. Orde's testimony on this point must be detailed and must address both the nature

6. Foundation for the Declaration. Ultimately, the testimony obtained at this deposition will form the basis for a declaration to be filed in support of VHG's motion for partial summary judgment on the windstorm sub-limit issue, targeted for November 1, 2023. The deposition testimony must be sufficiently clear, specific, and well-documented to support a declaration that will withstand opposition and survive any chall

V. LOGISTICAL NOTES The following logistical details should be confirmed and finalized before the deposition: • Deposition Date: Monday, August 28, 2023. • Location: To be confirmed. The deposition will likely be held at one of two locations: (a) Tidewater Risk Advisors LLC offices, 2600 S. Bayshore Drive, Suite 800, Miami, FL 33133; or (b) Calderwood & Harkness LLP Miami office, 333 SE 2nd Avenue, Suite 4400, Miami,

VI. CROSS-REFERENCE TO OTHER DEPOSITIONS The following depositions have been completed or are scheduled, and their testimony should be reviewed in advance of the Orde deposition to identify areas of consistency, potential contradiction, and opportunities for corroboration: Victor Haddon Deposition (July 10, 2023). Victor Haddon is Ironclad Indemnity Corporation's claims representative assigned to the VHG claim. Haddo