ATTORNEY WORK PRODUCT / PRIVILEGED AND CONFIDENTIAL — PREPARED IN ANTICIPATION OF LITIGATION

ATTORNEY WORK PRODUCT / PRIVILEGED AND CONFIDENTIAL — PREPARED IN ANTICIPATION OF LITIGATION
DEPOSITION OUTLINE — DENISE WHITFORD
Lead Independent Adjuster, Arbor Claims Services LLC
Engagement No.: 1021-00003 Date Prepared: July 21, 2023 Deposition Date: July 24, 2023
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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 three Florida resort properties. Her testimony is expected to bear directly on multiple dispositive issues in the case, including but not limited to the enforceability of the named-windstorm sub-limit, the reasonableness of VHG's restoration period, the methodology used to differentiate wind damage from storm-surge damage, and the propriety of Ironclad's ultimate claim denial.
The primary objectives for the Whitford deposition are as follows:
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 written reports. This line of inquiry goes to the independence — or lack thereof — of the adjusting process.
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, categorical testimony that the damage was extensive, that the properties were uninhabitable or inoperable, and that the damage was consistent with a catastrophic Category 4 hurricane event.
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, permitting delays, and supply-chain disruptions — will be central to our opposition to the delay-of-restoration defense and may support our own summary judgment arguments.
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 term following the July 2022 renewal — this testimony will directly support VHG's argument that Ironclad's coverage position was predetermined and unreasonable.
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 attributing damage to wind versus flood/surge will be critical to our challenge of Ironclad's invocation of the flood exclusion and anti-concurrent-causation clause.
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 outcome. This evidence is directly relevant to both the coverage dispute and the bad-faith claims.
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 reasonable investigation and evaluation of the claim.
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 record.
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 her full legal name and current professional title. Expected: Denise Whitford, Lead Independent Adjuster, Arbor Claims Services LLC.
•  Confirm her current business address: 3300 W. Cypress Street, Suite 400, Tampa, FL 33607.
•  Educational background: Where did she attend college and/or obtain her professional training? Does she hold any degrees relevant to insurance adjusting, construction, engineering, or a related discipline?
•  Professional licenses: Confirm that she holds an active independent adjuster's license in the State of Florida. Identify all other states in which she holds active adjusting licenses. Request her Florida license number and the date it was first issued.
•  Professional certifications: Does she hold any industry certifications, such as those issued by the National Association of Independent Insurance Adjusters (NAIIA), the National Association of Public Insurance Adjusters (NAPIA), or any comparable credentialing body? Is she a Senior Professional Public Adjuster (SPPA) or equivalent?
•  Years of experience: How many years has she worked as an independent insurance adjuster? How many years has she been employed by or affiliated with Arbor Claims Services LLC?
•  Prior employment: What positions did she hold before joining Arbor Claims? Did she previously work for any insurance carrier in a staff-adjuster capacity? If so, which carrier(s) and for how long?
•  Hurricane and catastrophe experience: How many hurricane or catastrophe claims has she adjusted in the course of her career? Specifically, how many Florida hurricane claims has she handled in the past ten years?
•  Hurricane Callista specifically: How many Hurricane Callista claims was she assigned? How many of those involved commercial properties as opposed to residential? How many involved hospitality or hotel properties? How many are still open or in litigation?
•  Has she ever been the subject of any disciplinary action by the Florida Department of Financial Services or any other state regulatory body?
•  Has she ever been qualified as an expert witness in any court proceeding? If so, in what courts and on what subjects?
B. Relationship with Ironclad Indemnity Corporation
This section is designed to explore the depth of the financial and professional relationship between Arbor Claims and Ironclad. A close, dependent relationship undermines the characterization of Whitford's adjustment as "independent" and supports VHG's contention that the adjustment was directed by the insurer.
Questions to cover:
•  How long has Arbor Claims Services LLC been retained by Ironclad Indemnity Corporation as an independent adjusting firm? When did the business relationship begin?
•  Is there a master services agreement, vendor agreement, or other written contract between Arbor Claims and Ironclad governing the provision of adjusting services? If so, identify the document and request its production.
•  Approximately how many claims per year does Arbor Claims receive from Ironclad? Probe whether this figure increased significantly during catastrophe events such as Hurricane Callista.
•  What percentage of Arbor Claims' total revenue is derived from Ironclad assignments? If she does not know the precise percentage, probe for an approximation. If it is a majority or substantial plurality of Arbor Claims' revenue, this fact is significant to the independence analysis.
•  Is there any exclusive or preferred-vendor arrangement between Arbor Claims and Ironclad? Is Arbor Claims on a "preferred panel" or "approved list" of adjusting firms maintained by Ironclad?
•  Identify all other insurance companies for whom Arbor Claims performs adjusting work. How many other carrier clients does Arbor Claims have?
•  What is the compensation structure for Arbor Claims' engagement by Ironclad? Is compensation calculated on an hourly basis, a per-claim flat fee, a retainer, or some combination thereof? What was the total compensation paid to Arbor Claims for the VHG Hurricane Callista claim?
•  Who at Ironclad authorized Whitford's assignment to the VHG claim? We expect the answer to be Victor Haddon, Senior Vice President of Claims, or someone within his direct chain of command. Probe whether Haddon personally selected Whitford or whether she was assigned through a rotational or automated system.
•  What was the date on which she received the VHG assignment? We expect this to have occurred on or shortly after September 22, 2022, the date on which VHG submitted its notice of loss to Ironclad through its broker, Tidewater Risk Advisors.
C. Scope of Assignment for VHG Claim
Understanding the precise scope of Whitford's assignment is essential. If her scope was limited — for example, if she was asked to adjust property damage only and not business-interruption losses — this may explain gaps in her analysis and may also indicate that Ironclad maintained control over the BI coverage evaluation.
Questions to cover:
•  Was there a written scope-of-assignment letter, engagement letter, or set of written instructions provided by Ironclad in connection with the VHG claim? If so, identify and request production of this document. If produced in discovery, use it as an exhibit.
•  What was she asked to do? Was she asked to investigate and adjust the property damage component of the claim only, or was she also asked to evaluate business-interruption losses? Was she asked to investigate extra-expense claims? Was she asked to investigate any subrogation potential?
•  Was she provided with a copy of the Ironclad primary policy, Policy No. IIC-PRP-2022-07541, at the time of her assignment or at any point before her first property inspection? If so, when was the policy provided, and in what form (full policy, excerpts, summary)?
•  Before her first inspection on October 5, 2022, was she provided with any coverage opinions, legal memoranda, or internal Ironclad documents regarding the VHG claim?
•  Did anyone at Ironclad — whether Victor Haddon, an Ironclad claims examiner, or anyone else — instruct her regarding coverage positions, exclusions, or sub-limits before her first inspection? This is a critical question. Probe the specifics of any pre-inspection communication about coverage.
•  Specifically: Was she told about the existence of a $15 million named-windstorm sub-limit applicable to business-interruption coverage? If so, who told her, when, and in what context?
•  Was she instructed to apply the $15 million named-windstorm sub-limit in her adjustment of the VHG claim? If so, who gave that instruction, and when?
•  Was she provided with any guidance regarding the flood exclusion or the anti-concurrent-causation clause in the Ironclad policy?
•  Was she given a target or budget for her loss estimate? Was she told what Ironclad expected the claim to be worth?
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 October 5, 2022? Request a comprehensive list.
•  Did she review the Ironclad policy (IIC-PRP-2022-07541) before the inspection?
•  Did she review VHG's notice of loss, submitted on September 22, 2022?
•  Did she review the Monroe County mandatory evacuation order issued on September 16, 2022, or the Lee County mandatory evacuation order issued on September 17, 2022?
•  Did she review any weather data, National Hurricane Center (NHC) reports, or storm-surge models regarding Hurricane Callista? If so, which data sources did she consult? Hurricane Callista was a Category 4 storm at landfall, with sustained winds of approximately 145 miles per hour. Landfall occurred on September 18, 2022, in the Big Pine Key area. Did she familiarize herself with these basic parameters before her inspection?
•  Did she coordinate her inspection schedule with VHG personnel? If so, with whom? We expect the VHG contact to have been Sandra Pellegrini, Vice President of Risk Management. What information, if any, did VHG provide to her before or during the inspection?
•  Was anyone from Ironclad Indemnity Corporation present during the inspections? Did Victor Haddon or any Ironclad staff adjuster accompany her?
•  Did she retain or request any sub-consultants, such as structural engineers, roofing consultants, mechanical/electrical engineers, or general contractors, to assist with the inspections? If she did not, why not, given the scale and complexity of the claim (three commercial properties, Category 4 hurricane, potential concurrent causation issues)?
B. Verimark Grand Key Resort — Mile Marker 48, Marathon, FL 33050
The Grand Key Resort is the largest and most significant of the three VHG properties at issue. It is a 312-room luxury resort and marina located in the Florida Keys, which bore the brunt of Hurricane Callista's storm surge. The concurrent-causation and flood-exclusion issues are most acute at this property.
Questions to cover:
•  Describe the Grand Key Resort as she observed it on October 5, 2022, approximately 17 days after Hurricane Callista's landfall. What was the general condition of the property?
•  The Grand Key Resort is a 312-room luxury resort with a full-service marina. How many of the 312 rooms did she personally inspect during her October 5, 2022 visit? If she inspected fewer than all rooms, what sampling methodology did she use?
•  What categories of damage did she observe at the Grand Key Resort? Probe each category:
•  Roof damage: Was there wind damage to roofing systems? What types of roofing were in place? Were there missing shingles, tiles, or membrane sections? Was there evidence of uplift?
•  Exterior walls and cladding: Was there damage to exterior walls, stucco, siding, or decorative elements? Was the damage attributable to wind, wind-borne debris, or storm surge?
•  Windows and doors: Were windows broken or blown out? Were window frames damaged or displaced? How many windows were affected? Were there hurricane shutters or impact-resistant windows in place?
•  Storm-surge and flood damage to ground-level structures: What was the extent of water intrusion at ground level? Was there evidence of standing water, waterline marks, or silt/debris deposits consistent with storm surge? What was the approximate height of the waterline?
•  Marina damage: What was the condition of the marina? Were docks, piers, seawalls, or floating structures damaged or destroyed? Was there damage to marina utilities (fuel systems, electrical, lighting)?
•  Landscaping: Was there significant damage to landscaping, hardscape, and grounds? Were there downed trees, displaced vegetation, or soil erosion?
•  Mechanical and electrical systems: Were HVAC systems, electrical panels, plumbing systems, elevators, fire-suppression systems, or other building systems damaged? Were ground-level mechanical rooms flooded?
•  Key line of questioning — concurrent causation: What percentage of the total damage at Grand Key Resort was attributable to wind versus storm surge? This is the single most important factual determination for the concurrent-causation issue.
•  How did she make the determination of what percentage of damage was caused by wind and what percentage was caused by storm surge?
•  What specific methodology did she use to differentiate wind damage from surge damage?
•  Did she employ water-line analysis (i.e., examining the height and pattern of waterline marks to determine the reach of storm surge)?
•  Did she conduct or commission any structural engineering assessment to differentiate wind-induced structural damage from surge-induced structural damage?
•  Did she perform debris-field analysis (i.e., examining the distribution and type of debris to determine whether it was deposited by wind or water)?
•  Was this methodology documented in her written report? If so, where in the report?
•  Is this methodology one that is generally accepted in the independent-adjusting profession for differentiating wind from surge damage in hurricane claims?
•  Has she used this same methodology in other Hurricane Callista claims or other prior hurricane claims?
•  Storm surge in the Marathon/Keys area: NHC and FEMA data indicate storm-surge levels of 8–14 feet in Monroe County during Hurricane Callista. Was the storm-surge evidence she observed at Grand Key Resort consistent with these reported levels? What was the approximate maximum height of storm-surge intrusion she observed at the property?
•  Did she conclude that the Grand Key Resort was uninhabitable and inoperable as of October 5, 2022? If so, what were the primary factors rendering it uninhabitable — structural damage, utility damage, health/safety hazards, or some combination?
•  What was her assessment of the timeline needed to restore the Grand Key Resort to its pre-loss condition and operational status? Did she estimate a specific number of days or months?
•  The Grand Key Resort was closed from September 18, 2022 through March 15, 2023, a period of 178 days. Did she evaluate whether this closure period was reasonable given the extent of the damage she observed? If she concluded the period was excessive, on what basis did she reach that conclusion? Did she identify a specific date by which she believed the property could have been restored?
C. Verimark Harborview Hotel & Conference Center — 1400 Estero Boulevard, Fort Myers Beach, FL 33931
The Harborview is a 224-room hotel with an attached 40,000-square-foot conference facility. Located on Fort Myers Beach, it was in the path of significant storm surge from Hurricane Callista, though generally less severe than the direct-landfall area in the Keys.
Questions to cover:
•  Describe the Harborview Hotel & Conference Center as she observed it on October 5, 2022. What was the general condition of the property?
•  The Harborview is a 224-room hotel with a 40,000-square-foot conference facility. How many rooms did she inspect? Did she inspect the conference center separately?
•  What categories of damage did she observe? Use the same damage-category framework as for Grand Key (roof, exterior walls, windows, surge/flood, mechanical/electrical, landscaping).
•  Storm surge in the Fort Myers Beach area: NHC and FEMA data indicate storm-surge levels of 6–10 feet in Lee County during Hurricane Callista. What were her observations regarding the extent and height of storm-surge intrusion at the Harborview? Was the damage pattern consistent with these reported surge levels?
•  What was her wind-versus-surge damage allocation for the Harborview? Was the methodology the same as she used at Grand Key?
•  Was the conference center separately damaged, or was its damage primarily a consequence of the same forces that damaged the hotel? Was the conference center operable independently of the hotel?
•  What was her assessment of the restoration timeline for the Harborview?
•  The Harborview was closed from September 18, 2022 through January 31, 2023, a period of 135 days. Did she assess the reasonableness of this closure period? If she considered it excessive, what was the basis for that conclusion?
D. Verimark Sunset Shores — 7200 Gulf Boulevard, St. Pete Beach, FL 33706
Sunset Shores is the smallest of the three properties, a 186-room boutique resort on St. Pete Beach. It sustained significant but less catastrophic damage than the Grand Key and Harborview properties and had a more complex closure/reopening profile, with a period of full closure followed by a period of reduced-capacity operation.
Questions to cover:
•  Describe the Sunset Shores resort as she observed it on October 5, 2022. What was the general condition of the property?
•  What categories of damage did she observe? Again, use the same damage-category framework.
•  Sunset Shores experienced a full closure from September 18, 2022 through November 30, 2022 (73 days), followed by a period of reduced-capacity operation through February 28, 2023, when it returned to full capacity. Was the property partially operable when she inspected it on October 5, 2022? If so, which portions of the property were operable and which were not?
•  What was her assessment of the required restoration work at Sunset Shores? Did she prepare a scope of repair or loss estimate specific to this property?
•  Did she assess the reasonableness of both the full-closure period (73 days) and the subsequent reduced-capacity period (through February 28, 2023)?
•  What was her wind-versus-surge damage allocation for this property?
E. Inspection Documentation
Establish the extent and nature of Whitford's contemporaneous documentation. The adequacy of her documentation — or lack thereof — bears on the reliability of her findings and on VHG's ability to challenge them.
Questions to cover:
•  How many photographs did she take during her October 5, 2022 inspections, across all three properties? Approximately how many photographs were taken at each property?
•  What subjects did the photographs depict? Were they organized by property, by damage category, or by room/area?
•  Did she take any video documentation during the inspections?
•  Did she prepare any notes or field reports contemporaneously with the inspections — i.e., on October 5, 2022 or the same day?
•  Were her inspection reports shared with VHG, or were they provided only to Ironclad? If they were not shared with VHG, was there a reason they were withheld?
•  Were any follow-up inspections conducted after October 5, 2022? If so, when were the follow-up inspections conducted, and at which properties? What was the purpose of the follow-up inspections? Who authorized them?
•  Has she returned to any of the three VHG properties since the initial inspection? If so, when and for what purpose?
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 claim? Was this a single aggregate figure, or were separate estimates prepared for each of the three properties?
•  What was the total business-interruption loss estimate, if any, prepared by Whitford and/or Arbor Claims? Again, were separate BI estimates prepared for each property?
•  Were the property damage and BI estimates presented in a single report, or in separate reports?
•  How did she calculate business-interruption losses? What data and methodology did she use? Did she use a historical-revenue approach, a forecasted-revenue approach, or some other methodology?
•  What financial data did she rely upon? Did she use historical revenue figures, average daily rates (ADR), occupancy rates, or other metrics? For reference, VHG's pre-loss metrics were:
•  Grand Key Resort: Pre-loss ADR of $389; occupancy rate of 82%
•  Harborview Hotel & Conference Center: Pre-loss ADR of $295; occupancy rate of 74%
•  Sunset Shores: Pre-loss ADR of $342; occupancy rate of 79%
•  Did she request financial data directly from VHG? If so, what data was requested, when was it requested, and did VHG cooperate in providing the requested information? Was VHG's cooperation adequate, or does she contend that VHG was uncooperative or failed to provide requested information?
•  In calculating BI losses, did she calculate and deduct saved expenses — i.e., operating costs that VHG did not incur during the closure periods (e.g., reduced payroll, utilities, cost of goods sold)? If so, how were saved expenses calculated?
•  Did she account for ancillary revenue streams — i.e., non-room revenue — in her BI calculation? Specifically, did she account for lost revenue from the Grand Key marina, the Harborview conference center, food and beverage operations, spa services, and other non-room revenue sources?
•  What was her total BI loss estimate across all three properties? Compare this figure to VHG's sworn statement in proof of loss, filed November 15, 2022, which claimed approximately $60 million in total losses (encompassing both property damage and business interruption). If her estimate was lower than VHG's claimed amount, identify the specific differences and the reasons for each difference.
•  Did she prepare any reconciliation or variance analysis comparing her estimates to VHG's claimed losses?
B. Cause-of-Loss Differentiation
The cause-of-loss differentiation methodology is critical to the concurrent-causation and flood-exclusion issues. This section should press Whitford on the rigor and reliability of her approach.
Questions to cover:
•  For each of the three properties, what was her allocation of damage between wind and flood/storm surge? Request specific percentages or dollar amounts for each property.
•  For the Grand Key Resort specifically: What percentage of total damage did she attribute to storm surge? What percentage to wind? What percentage, if any, to other causes (e.g., wind-driven rain, pre-existing conditions)?
•  Does she hold the opinion that the flood exclusion in the Ironclad policy applies to storm-surge damage at any or all of the three properties?
•  Was she instructed by anyone at Ironclad to allocate a specific percentage of damage to flood or storm surge? Was she given any target allocation?
•  Did she apply an anti-concurrent-causation analysis in her adjustment? Was she asked to apply such an analysis by Ironclad? If she applied it, how did she apply it — did she exclude all damage at a property where any surge damage was found, or did she apportion?
•  Did she consult with any engineer, hydrologist, meteorologist, or other causation expert, or did she rely solely on her own observations and professional judgment in differentiating wind from surge damage?
•  Key question: Did she differentiate between wind-driven rain damage and storm-surge/tidal flooding? These are distinct perils under most property insurance policies. Wind-driven rain enters through openings created by wind; storm surge is rising water from the ocean. Did her methodology account for this distinction? If she treated wind-driven rain as "flood" damage, this is a significant analytical error that VHG can exploit.
C. Valuation of Losses
Questions to cover:
•  Did she calculate property damage on a replacement-cost basis or an actual-cash-value basis? What does the Ironclad policy require?
•  How were extra expenses — i.e., costs incurred by VHG to expedite repairs or to mitigate business-interruption losses — treated in her adjustment? Did she include or exclude them? Did she verify whether VHG incurred extra expenses?
•  Did she apply any sub-limits in her adjustment, including the disputed $15 million named-windstorm sub-limit for business-interruption losses?
•  If she applied the windstorm sub-limit: Who instructed her to apply it? When was that instruction given? Did she independently verify the existence and applicability of the sub-limit by reviewing the Ironclad policy?
•  Did she prepare separate calculations — one applying the $15 million windstorm sub-limit and one without the sub-limit — or did she prepare only a single calculation?
•  If she prepared only a single calculation applying the sub-limit, was this at Ironclad's direction?
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 definition of "period of restoration" did she apply in her adjustment?
•  Did she use the definition set forth in the Ironclad policy, Policy No. IIC-PRP-2022-07541? That definition provides that the period of restoration begins when operations cease due to a covered cause of loss and ends when the property "could have been" restored to operability with "reasonable speed and similar quality." Is that the definition she applied?
•  Did she receive any instruction from Ironclad regarding how to interpret or apply the "period of restoration" definition?
•  What was her estimated period of restoration for each of the three VHG properties?
•  Grand Key Resort: The actual closure was 178 days (September 18, 2022 – March 15, 2023). What period of restoration did she estimate? If her estimate was shorter than 178 days, on what basis did she conclude that the property "could have been" restored sooner? How many days did she determine were reasonable?
•  Harborview Hotel & Conference Center: The actual closure was 135 days (September 18, 2022 – January 31, 2023). What period of restoration did she estimate?
•  Sunset Shores: The full closure was 73 days (September 18, 2022 – November 30, 2022), with reduced-capacity operations through February 28, 2023. Did she separately analyze the full-closure period and the reduced-capacity period? What period of restoration did she determine was reasonable for each phase?
•  In assessing "reasonable speed" of restoration, did she consider the following factors:
•  Contractor availability in post-hurricane Florida, given that Hurricane Callista — a Category 4 storm — created catastrophic damage across a wide geographic area, resulting in extraordinary demand for construction services?
•  Permitting delays at the local and state level, given the volume of damage and repair applications processed by Monroe County, Lee County, and Pinellas County building departments in the aftermath of the hurricane?
•  Supply-chain disruptions affecting the availability of construction materials, including but not limited to roofing materials, windows, HVAC equipment, and electrical components?
•  Building-code requirements, including the possibility that repairs triggered compliance upgrades under Florida Building Code provisions requiring structures to be brought up to current code standards when repair costs exceed a certain percentage of the structure's value?
•  The need for specialized contractors (e.g., marina repair, commercial kitchen equipment, conference-center audiovisual systems)?
•  If she did not consider one or more of these factors, why not? Was she instructed not to consider them?
B. Mitigation / Failure to Mitigate
Ironclad's fourth denial basis is its assertion that VHG "failed to mitigate" its losses. This is a significant defense that must be addressed, and Whitford's factual observations regarding VHG's mitigation efforts (or lack thereof) are likely the evidentiary foundation for this defense.
Questions to cover:
•  Did she form any opinion that VHG failed to mitigate its losses?
•  Did she observe any evidence during her inspections or her review of VHG's claim materials that VHG delayed commencing repairs at any of the three properties?
•  When did VHG begin restoration work at each property? Was she aware of the timeline of VHG's restoration activities?
•  Did she communicate any concerns about VHG's mitigation efforts — or lack thereof — to Ironclad? If so, when and to whom?
•  Did she recommend any specific mitigation steps to VHG? If so, what steps, and how did VHG respond?
•  Is Ironclad's assertion of "failure to mitigate" (one of the four denial bases set forth in the February 3, 2023 denial letter) based on Whitford's findings, or was this defense independently asserted by Ironclad without support from the independent adjustment?
•  Is she aware of any facts supporting the contention that VHG failed to take reasonable steps to mitigate its business-interruption losses? If not, this is a significant admission.
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 communicate with Victor Haddon during the course of the VHG claim adjustment? Probe for a general frequency (e.g., daily, weekly, as-needed).
•  What methods of communication did she use? Email, telephone, text message, video conference, in-person meetings? Were any communications in writing?
•  Did she provide oral preliminary findings to Haddon before submitting any written reports? If so, when did she first communicate her preliminary findings orally, and what did she communicate?
•  When did she first communicate her preliminary loss estimate to Ironclad, and to whom? What was the preliminary estimate?
•  What was Haddon's or Ironclad's reaction to her preliminary findings? Did Haddon express any agreement, disagreement, surprise, or concern regarding any aspect of her findings?
•  Did Haddon instruct her to revise any aspect of her findings or reports at any time during the adjustment? If so, what was she asked to revise, when, and by whom? Did she comply with the instruction? If she revised her findings, were the revisions substantive or editorial?
•  Did Haddon discuss the reservation of rights letter (issued October 12, 2022) with her before or after she submitted her first written report? Was she aware of the reservation of rights at the time she was conducting her adjustment?
•  Did she provide any input into the reservation of rights letter? Was she consulted on the factual or technical bases for the reservation of rights?
•  Did she review or provide input into the formal denial letter issued on February 3, 2023? Was she shown a draft of the denial letter before it was issued? Did she agree with its contents?
•  Were her findings consistent with or contrary to the four bases for denial stated in the February 3, 2023 letter? Address each basis specifically:
•  Named-windstorm sub-limit ($15M BI sub-limit): Was the application of this sub-limit an adjusting issue within the scope of her work, or was it a coverage/legal issue handled entirely by Ironclad and its counsel? If she applied the sub-limit in her adjustment, was this at Ironclad's direction?
•  Period of restoration: Did her analysis of the period of restoration support Ironclad's position that VHG's closure periods were unreasonably long and that VHG delayed restoration? Or did her analysis support the reasonableness of VHG's actual closure periods?
•  Concurrent causation / flood exclusion: Did her cause-of-loss differentiation analysis support Ironclad's invocation of the flood exclusion and anti-concurrent-causation clause? Or did her findings indicate that wind was the predominant or efficient proximate cause of the damage?
•  Failure to mitigate: Did she make any finding of failure to mitigate? If not, on what basis did Ironclad assert this defense?
B. Communications with Ironclad's Outside Counsel
Defense counsel may assert privilege over communications between Whitford and Ironclad's outside litigation counsel. However, the scope of any such privilege is limited, and factual communications with a non-party independent adjuster may not be protected. This section should probe these communications while preserving the record for any privilege disputes.
Questions to cover:
•  Did she communicate with any attorney at Fendowell Rourke & Stanton LLP — specifically, Gregory Stanton (Partner), Meredith Liang (Senior Associate), or Colin Ashford — at any time during or after her adjustment of the VHG claim?
•  If so, when did these communications occur? Were they before or after VHG filed suit (suit was filed on or about May 2023)?
•  What was the method of communication (email, telephone, in-person meeting)?
•  What topics were discussed? Was she asked about her factual findings, her methodology, her opinions regarding causation, or her opinions regarding coverage?
•  Did defense counsel provide her with any instructions regarding her adjustment? Did counsel ask her to revise, supplement, or clarify any aspect of her reports?
•  Was she asked to prepare any supplemental reports, analyses, or affidavits for litigation purposes? If so, what was she asked to prepare, when, and at whose request?
•  Note to examining attorney: If Stanton objects on work-product or privilege grounds, probe whether the communication occurred before or after litigation was anticipated. Pre-suit, pre-denial communications between Whitford and Ironclad's coverage counsel may not be protected as work product if they were part of the ordinary claims-handling process rather than litigation preparation. Preserve the record on any objections.
C. Communications with Excess Carriers
VHG's insurance program includes excess layers placed with Pinnacle Surplus Lines, Montclair Assurance, and Sovereign Re. It is relevant to determine whether the excess carriers relied on Whitford's adjustment.
Questions to cover:
•  Did she communicate with any representative of Pinnacle Surplus Lines, Montclair Assurance, or Sovereign Re at any time during or after her adjustment?
•  Did she provide her reports or findings to any excess carrier directly? Or were her reports transmitted to excess carriers by Ironclad?
•  Was she aware that excess carriers were relying on her findings to make coverage determinations for their respective layers?
•  Was she assigned by any excess carrier to perform any separate or supplemental adjustment?
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 provided to VHG, to excess carriers, or to any other party?
•  Were any draft reports prepared and revised before finalization? If so, how many drafts were there for each report? Who requested revisions? What was the nature of the changes made between drafts and final versions — were changes substantive (affecting damage estimates, causation conclusions, or period-of-restoration analysis) or merely editorial?
•  If substantive changes were made to draft reports at Ironclad's request, identify each change, the person who requested it, and the reason given for the change. This line of inquiry is critical for the bad-faith claim.
•  Request identification and production of all documents in Arbor Claims' claim file for this matter, including but not limited to correspondence, emails, notes, photographs, reports, worksheets, and any other documents generated or received in connection with the VHG claim.
B. Adjusting Worksheets
Questions to cover:
•  Identify all working papers, spreadsheets, calculations, and supporting documentation underlying her loss estimates, for both property damage and business interruption.
•  What sources of data did she rely upon in preparing her estimates? Identify each source.
•  Did she incorporate any third-party reports or data into her analysis, including but not limited to:
•  Weather data (NHC reports, NOAA data, private meteorological reports)
•  Contractor estimates or bids
•  Engineering reports (structural, mechanical, electrical, roofing)
•  Appraisal reports
•  FEMA flood maps or inundation models
•  Storm-surge models or post-event assessments
•  Were any of these third-party reports or data sources provided to her by Ironclad, or did she obtain them independently?
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.
Questions to cover:
•  In her professional opinion, based on her investigation and adjustment, was the VHG Hurricane Callista claim a covered loss under the Ironclad policy? If she declines to answer on the ground that coverage determinations are legal questions outside her scope, probe whether her factual findings were consistent with coverage.
•  Was she ever asked by anyone at Ironclad — Victor Haddon or otherwise — whether the VHG claim should be paid? If so, what was her response?
•  Did she recommend payment of any portion of the VHG claim? If so, in what amount? Was her recommendation accepted or rejected by Ironclad?
•  If her adjustment supported a higher loss figure than Ironclad ultimately offered or paid, explore the disconnect. Why was her adjustment not followed? Was she told why Ironclad's payment or offer differed from her findings? Who made that decision?
•  Did she express disagreement with any aspect of Ironclad's denial of the VHG claim, whether orally or in writing? If so, when, to whom, and what was the substance of her disagreement?
•  Was she aware, at any point during her adjustment, of VHG's position that the $15 million named-windstorm sub-limit had been deleted from the policy at the July 2022 renewal? If so, when did she become aware of this position, and from whom?
•  Did she review any correspondence between Tidewater Risk Advisors (specifically, Franklin Orde, VHG's broker) and Ironclad regarding the deletion of the named-windstorm sub-limit at the July 2022 renewal? If she was aware of this correspondence, did it affect her adjustment in any way?
•  Did she ever raise a concern — to Haddon, to Ironclad's claims department, or to anyone else — that Ironclad's coverage position might not be supported by the factual findings of her adjustment?
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 his defense of the witness.
Anticipated Objections.  The following categories of objections should be anticipated:
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 communications are protected attorney work product prepared in anticipation of litigation.
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 questionable.
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 elicit Whitford's understanding of the coverage issues as part of her adjustment.
Strategy for Overcoming Anticipated Objections
•  Whitford is a fact witness and an independent adjuster — she is not Ironclad's attorney or an employee of Ironclad. Her factual observations, adjusting methodology, loss estimates, and cause-of-loss determinations are not privileged and are not protected work product.
•  Communications directly between Whitford and Victor Haddon (not channeled through counsel) are clearly discoverable as non-privileged factual communications between the insurer and its independent adjuster.
•  Even if some communications between Whitford and defense counsel are arguably protected, the fact of the communication, its date, its participants, and its general subject matter may be discoverable even if the specific content is protected. Probe these details even if Stanton objects to the substance.
•  If Stanton instructs the witness not to answer on privilege or work-product grounds, preserve the issue for a motion to compel. Make a clear record on the transcript by:
(a) Stating the question on the record;
(b) Obtaining Stanton's specific objection and the basis for the instruction not to answer;
(c) Noting VHG's position that the objection is improper;
(d) Reserving the right to move to compel an answer pursuant to Florida Rule of Civil Procedure 1.310(c).
•  If the number of improper instructions not to answer becomes excessive, consider contacting Judge Embry's chambers during a break to request a telephone conference or, if necessary, suspending the deposition and filing an emergency motion to compel.
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 Whitford to revise any findings or reports;
•  Whether Whitford recommended payment of the claim;
•  The cause-of-loss allocation at Grand Key Resort.
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 applied.
•  The period-of-restoration dispute — if Whitford's analysis did not adequately account for post-hurricane construction bottlenecks, permitting delays, and supply-chain disruptions, her period-of-restoration estimates may be unreliable and inadmissible.
•  The concurrent causation / flood exclusion argument — if Whitford's wind/surge differentiation methodology was unsupported by engineering analysis, this may be challenged through expert testimony.
•  The failure-to-mitigate defense — if Whitford made no finding of failure to mitigate, and Ironclad asserted this defense without support from its own independent adjuster, this supports the bad-faith claim.
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 supplemental reports or analyses prepared for litigation.
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 adequate time for any supplemental analysis.
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 database) for real-time document retrieval during the deposition.
•  Arrange for a breakout room at the deposition location for attorney consultations during breaks.
ATTORNEY WORK PRODUCT / PRIVILEGED AND CONFIDENTIAL — PREPARED IN ANTICIPATION OF LITIGATION
This document was prepared by attorneys at Calderwood & Harkness LLP in anticipation of litigation and for the purpose of providing legal advice to Verimark Hospitality Group Inc. It is protected by the attorney work-product doctrine and the attorney-client privilege. Disclosure of this document to any person not authorized to receive it may constitute a waiver of applicable privileges. If you have received this document in error, please notify Calderwood & Harkness LLP immediately.
PREPARED BY:
________________________________________
Tiffany Rosenthal Lead Associate Calderwood & Harkness LLP 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131
Date: July 21, 2023
REVIEWED AND APPROVED BY:
________________________________________
Elaine Forsythe Responsible Partner Calderwood & Harkness LLP 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131
Date: ________
Matter: | Verimark Hospitality Group Inc. v. Ironclad Indemnity Corp. et al.
Case No.: | 2022-CA-031547 (Eleventh Judicial Circuit of Florida, Miami-Dade County)
Court: | Before Hon. Catherine Embry, Circuit Court Judge
Prepared By: | Tiffany Rosenthal, Lead Associate, Calderwood & Harkness LLP
Reviewed By: | Elaine Forsythe, Responsible Partner, Calderwood & Harkness LLP
Assisting: | Andrew Fitzpatrick, Working Associate
Item | Detail
Deposition Date: | July 24, 2023
Location: | To be confirmed. Primary option: Calderwood & Harkness LLP Miami office, 333 SE 2nd Avenue, Suite 4400, Miami, FL 33131. Alternate: Fendowell Rourke & Stanton Tampa office, 101 E. Kennedy Boulevard, Suite 3900, Tampa, FL 33602.
Court Reporter: | Arranged through Precision Reporting Services. Confirm attendance and provide case caption and anticipated duration.
Estimated Duration: | Full day — 6 to 7 hours of testimony on the record, exclusive of breaks and lunch.
Examining Attorney: | Tiffany Rosenthal, Lead Associate (lead examiner). Elaine Forsythe, Responsible Partner, available for consultation during breaks.
Assisting Attorney: | Andrew Fitzpatrick, Working Associate, to attend for document management, exhibit handling, and real-time note-taking.
Videographer: | Confirm whether the deposition will be videotaped. Recommendation: Yes. Videotaped testimony will be valuable for use at mediation, at trial (if Whitford is unavailable or designated as a deposition-only witness), and for impeachment purposes. Arrange videographer through Precision Reporting Services.