Contract analysis

I. INTRODUCTION Plaintiff Verimark Hospitality Group Inc. ("VHG"), a Delaware corporation publicly traded on the Nasdaq (ticker: VMRK) and headquartered at 1900 Brickell Avenue, Suite 3200, Miami, Florida 33129, respectfully submits this memorandum of law in opposition to the Cross-Motion for Partial Summary Judgment filed on November 15, 2023, by Defendants Ironclad Indemnity Corporation ("Ironclad") and Pinnacle Su

II. STATEMENT OF RELEVANT FACTS The following statement of facts is drawn from the record evidence, including deposition transcripts, sworn declarations, policy documents, broker correspondence, and expert reports. All facts are presented, as required at the summary judgment stage, in the light most favorable to VHG, the non-moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Moore v. Morris, 475

III. LEGAL STANDARD Under Florida Rule of Civil Procedure 1.510, as amended effective May 1, 2021, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). The 2021 amendment aligned Florida's summary judgment standard with the federal standard articulated in Celotex Corp. v. Ca

IV. ARGUMENT A. Genuine Issues of Material Fact Preclude Summary Judgment on the Windstorm Sub-Limit Issue The Moving Defendants' cross-motion rests on a single proposition: that the language of Endorsement No. 14 to the 2022–2023 Ironclad primary policy unambiguously preserved the $15 million named-windstorm sub-limit from the prior policy year. This proposition is wrong. The endorsement language is ambiguous, the e

1. The Broker Testimony Creates a Triable Factual Dispute. The testimony of Franklin Orde — VHG's insurance broker and the individual who personally conducted the renewal negotiations with Ironclad — directly and unequivocally establishes that the $15 million named-windstorm sub-limit was deleted at the July 2022 renewal. At his deposition on August 28, 2023, Mr. Orde testified under oath that during the renewal nego

2. Sandra Pellegrini's Testimony Corroborates the Deletion. The testimony of Sandra Pellegrini, VHG's Vice President of Risk Management, provides independent corroboration of Mr. Orde's account of the sub-limit deletion. Ms. Pellegrini testified at her deposition on August 14, 2023, that VHG's understanding, based on the representations it received from Tidewater and the terms of the premium negotiation, was that the

3. Victor Haddon's Testimony Contains Admissions Favorable to VHG. Even Ironclad's own witnesses have provided testimony that undermines the Moving Defendants' position. Victor Haddon, Ironclad's Senior Vice President of Claims, testified at his deposition on July 10, 2023, regarding the windstorm sub-limit. As reflected in VHG's post-deposition summary dated September 5, 2023, Mr. Haddon's testimony included a numbe

4. The Policy Endorsement Language Is Ambiguous. The Moving Defendants' cross-motion hinges entirely on their assertion that Endorsement No. 14 to the 2022–2023 Ironclad primary policy unambiguously preserved the $15 million named-windstorm sub-limit. That assertion is incorrect. The endorsement language is, at a minimum, ambiguous — and that ambiguity alone is fatal to the Moving Defendants' motion. Under Florida la

1. Florida's Pro-Coverage Construction Rules. Florida courts have long adhered to the principle that insurance policies are to be "construed liberally in favor of the insured and strictly against the insurer." Berkshire Life Ins. Co., 698 So. 2d at 830; see also Auto-Owners Ins. Co., 756 So. 2d at 34. This rule of construction reflects the reality that insurance policies are contracts of adhesion, drafted by the insu

2. The Reasonable Expectations Doctrine. Florida courts apply the reasonable expectations doctrine to insurance coverage disputes, holding that ambiguous policy provisions should be interpreted in accordance with the reasonable expectations of the insured. See Berkshire Life Ins. Co., 698 So. 2d at 830; Deni Assocs., 711 So. 2d at 1140; see also National Union Fire Ins. Co. v. Hudson Excess Ins. Co., 891 So. 2d 1088,

3. The Parol Evidence Rule Does Not Bar Consideration of Renewal Negotiations. The Moving Defendants may argue — as they have suggested in their cross-motion briefing — that the parol evidence rule bars this Court from considering the renewal negotiations, broker correspondence, and other extrinsic evidence offered by VHG in support of its interpretation of the policy. This argument fails under well-settled Florida l

V. CONCLUSION For all of the foregoing reasons, the Court should deny the Cross-Motion for Partial Summary Judgment filed by Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc. The record evidence, viewed in the light most favorable to VHG as the non-moving party, demonstrates that genuine issues of material fact exist regarding whether the $15 million named-windstorm sub-limit was deleted at th

1. DENY the Cross-Motion for Partial Summary Judgment filed by Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.; and

2. GRANT VHG's own Motion for Partial Summary Judgment filed on November 1, 2023, declaring that the $15 million named-windstorm sub-limit does not apply to Policy No. IIC-PRP-2022-07541 or, by follow-form operation, to Policy No. PSL-XS1-2022-3390 for the July 1, 2022 – July 1, 2023 policy period.

VI. SIGNATURE BLOCK AND CERTIFICATE OF SERVICE Respectfully submitted, CALDERWOOD & HARKNESS LLP 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 By: ________ Elaine Forsythe (Fla. Bar No. 987452) Responsible Partner Email: eforsythe@calderwoodharkness.com Telephone: (305) 555-7800 Tiffany Rosenthal (Fla. Bar No. 103219) Lead Associate Email: trosenthal@calderwoodharkness.com Telephone: (305) 555-7815 Andrew Fitzpa