IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2022-CA-031547
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
IRONCLAD INDEMNITY CORPORATION, a Connecticut corporation; PINNACLE SURPLUS LINES INC., a Texas corporation; MONTCLAIR ASSURANCE COMPANY, a New York corporation; and SOVEREIGN RE LTD., a Bermuda corporation,
Defendants.
________/
PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS TO DEFENDANT IRONCLAD INDEMNITY CORPORATION
Before the Honorable Catherine Embry
Plaintiff Verimark Hospitality Group Inc. ("VHG"), by and through its undersigned counsel, Calderwood & Harkness LLP, and pursuant to Florida Rule of Civil Procedure 1.370, hereby requests that Defendant Ironclad Indemnity Corporation ("Ironclad") admit or deny, within thirty (30) days of service hereof, the truth of each of the following statements of fact and the genuineness of each document described herein. Pursuant to Florida Rule of Civil Procedure 1.370(a), each matter of which an admission is requested shall be deemed admitted unless, within the time permitted, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. Each matter not denied or objected to within the time permitted shall be deemed admitted for all purposes of this action.
Date of Service: June 5, 2023
I. DEFINITIONS
As used in this First Request for Admissions, the following terms shall have the meanings set forth below, unless otherwise indicated:
A. "Policy" means the all-risk property and business-interruption insurance policy issued by Ironclad to VHG, bearing Policy Number IIC-PRP-2022-07541, with a policy period of July 1, 2022 through July 1, 2023, together with all endorsements, schedules, declarations pages, riders, supplements, amendments, and other documents forming a part thereof.
B. "Hurricane Callista" means the tropical cyclone designated by the National Hurricane Center as Hurricane Callista, which made landfall on September 18, 2022, in the Lower Florida Keys, Florida, and all weather phenomena associated therewith, including but not limited to wind, rain, storm surge, flooding, and tornadoes spawned by said tropical cyclone.
C. "Insured Properties" means, collectively: (a) Verimark Grand Key Resort, located at Mile Marker 48, Marathon, FL 33050; (b) Verimark Harborview Hotel & Conference Center, located at 1400 Estero Boulevard, Fort Myers Beach, FL 33931; and (c) Verimark Sunset Shores, located at 7200 Gulf Boulevard, St. Pete Beach, FL 33706.
D. "Proof of Loss" means the sworn statement in proof of loss submitted by VHG to Ironclad on or about November 15, 2022, together with all supporting documentation, schedules, and exhibits attached thereto or submitted in connection therewith.
E. "Denial Letter" means Ironclad's written correspondence dated February 3, 2023, denying coverage for VHG's Hurricane Callista business-interruption claim, together with any enclosures, attachments, or accompanying documentation.
F. "You" or "Your" refers to Defendant Ironclad Indemnity Corporation, and shall be construed broadly to include its present and former officers, directors, employees, agents, representatives, adjusters, independent adjusters, consultants, attorneys, underwriters, reinsurers, and all other persons or entities acting on its behalf or at its direction.
G. "Arbor Claims" means Arbor Claims Services LLC, the independent adjusting firm retained by Ironclad in connection with VHG's Hurricane Callista claim, including its employees, adjusters, agents, and representatives.
H. "Tidewater" means Tidewater Risk Advisors LLC, VHG's insurance broker of record for VHG's property and business-interruption insurance program, including its employees, account executives, agents, and representatives.
II. INSTRUCTIONS
The following instructions apply to each Request for Admission contained herein:
1. Each Request for Admission shall be answered separately and fully in writing under oath, in accordance with Florida Rule of Civil Procedure 1.370.
2. If any admission cannot be made as to the entirety of a request, admit so much of the request as is true and qualify or deny the remainder. If an admission is qualified, the responding party shall set forth in detail the reasons for the qualification and shall specifically identify the portion of the request that is admitted and the portion that is denied or qualified.
3. When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the responding party shall specify so much of it as is true and qualify or deny the remainder.
4. If a response claims lack of sufficient information or knowledge to admit or deny, the response must state that the responding party has made reasonable inquiry and that the information known or readily obtainable by the responding party is insufficient to enable the responding party to admit or deny the matter. A responding party may not give lack of information or knowledge as a reason for failure to admit or deny unless the responding party states that it has made reasonable inquiry and that the information known or readily obtainable is insufficient to enable it to admit or deny.
5. Objections must state the specific grounds therefor with particularity. General or boilerplate objections are insufficient and will not be deemed proper under Florida Rule of Civil Procedure 1.370. An objection to any part of a request shall not excuse the obligation to admit or deny the remainder of the request to which no objection is made.
6. The use of the singular form of any word shall include the plural, and vice versa. The use of any gender shall include all genders. The connective "and" shall be construed as either disjunctive or conjunctive as necessary to bring within the scope of any request all responses that might otherwise be construed to be outside its scope. Similarly, the connective "or" shall be construed as either disjunctive or conjunctive as necessary to bring within the scope of any request all responses that might otherwise be construed to be outside its scope.
7. Each request is continuing in nature, and Ironclad is required to supplement its responses should it obtain additional information affecting the truth or accuracy of any response previously served.
III. REQUESTS FOR ADMISSION
A. The Policy and Its Issuance
REQUEST FOR ADMISSION NO. 1: Admit that Ironclad Indemnity Corporation is a stock insurance company organized and existing under the laws of the State of Connecticut, domiciled in the State of Connecticut, with its principal office located at 55 Constitution Boulevard, Hartford, CT 06103.
REQUEST FOR ADMISSION NO. 2: Admit that Ironclad issued to VHG the all-risk property and business-interruption insurance policy bearing Policy Number IIC-PRP-2022-07541, with a policy period of July 1, 2022 through July 1, 2023.
REQUEST FOR ADMISSION NO. 3: Admit that the Policy provides "all risks" coverage for physical loss or damage to covered property, including coverage for business interruption and extra expense arising from such physical loss or damage.
REQUEST FOR ADMISSION NO. 4: Admit that the Policy provides a per-occurrence limit of Twenty-Five Million Dollars ($25,000,000) for business-interruption losses, subject to a Five Hundred Thousand Dollar ($500,000) per-occurrence deductible.
REQUEST FOR ADMISSION NO. 5: Admit that VHG paid, either directly or through its broker of record Tidewater Risk Advisors LLC, the full annual premium of Nine Hundred Eighty Thousand Dollars ($980,000) for the Policy for the July 1, 2022 through July 1, 2023 policy period.
REQUEST FOR ADMISSION NO. 6: Admit that the Policy was in full force and effect on September 18, 2022, the date Hurricane Callista made landfall in the Lower Florida Keys, Florida.
REQUEST FOR ADMISSION NO. 7: Admit that VHG is the named insured under the Policy.
REQUEST FOR ADMISSION NO. 8: Admit that the Insured Properties — specifically, the Verimark Grand Key Resort located at Mile Marker 48, Marathon, FL 33050; the Verimark Harborview Hotel & Conference Center located at 1400 Estero Boulevard, Fort Myers Beach, FL 33931; and the Verimark Sunset Shores located at 7200 Gulf Boulevard, St. Pete Beach, FL 33706 — are scheduled locations covered under the Policy.
B. The Insurance Tower and Excess Layers
REQUEST FOR ADMISSION NO. 9: Admit that Ironclad's Policy constitutes the primary layer in VHG's property and business-interruption insurance program (hereinafter, the "Tower").
REQUEST FOR ADMISSION NO. 10: Admit that the Tower consists of four layers of coverage totaling Sixty Million Dollars ($60,000,000) in aggregate limits above the Five Hundred Thousand Dollar ($500,000) deductible.
REQUEST FOR ADMISSION NO. 11: Admit that Pinnacle Surplus Lines Inc. issued a first excess policy, bearing Policy Number PSL-XS1-2022-3390, providing Fifteen Million Dollars ($15,000,000) in limits excess of and following the Twenty-Five Million Dollar ($25,000,000) primary layer issued by Ironclad.
REQUEST FOR ADMISSION NO. 12: Admit that Montclair Assurance Company issued a second excess policy, bearing Policy Number MAC-XS2-2022-09817, providing Ten Million Dollars ($10,000,000) in limits excess of Forty Million Dollars ($40,000,000) in underlying coverage.
REQUEST FOR ADMISSION NO. 13: Admit that Sovereign Re Ltd. issued a third excess policy, bearing Policy Number SRL-XS3-2022-5102, providing Ten Million Dollars ($10,000,000) in limits excess of Fifty Million Dollars ($50,000,000) in underlying coverage.
C. Hurricane Callista — Occurrence and Governmental Orders
REQUEST FOR ADMISSION NO. 14: Admit that Hurricane Callista was designated as a named storm by the National Hurricane Center on September 12, 2022.
REQUEST FOR ADMISSION NO. 15: Admit that Hurricane Callista made landfall in the Lower Florida Keys, specifically in the Big Pine Key area of Monroe County, Florida, on September 18, 2022, at approximately 1:30 PM Eastern Daylight Time.
REQUEST FOR ADMISSION NO. 16: Admit that at the time of landfall, Hurricane Callista was classified as a Category 4 hurricane on the Saffir-Veltason Hurricane Wind Scale, with maximum sustained winds of approximately 145 miles per hour.
REQUEST FOR ADMISSION NO. 17: Admit that Hurricane Callista produced storm surge of approximately 8 to 14 feet above normally dry ground in Monroe County, Florida, including in the areas surrounding the Verimark Grand Key Resort.
REQUEST FOR ADMISSION NO. 18: Admit that Hurricane Callista produced storm surge of approximately 6 to 10 feet above normally dry ground in Lee County, Florida, including in the areas surrounding the Verimark Harborview Hotel & Conference Center.
REQUEST FOR ADMISSION NO. 19: Admit that Monroe County, Florida issued a mandatory evacuation order on September 16, 2022, applicable to the geographic area encompassing the Verimark Grand Key Resort located at Mile Marker 48, Marathon, FL 33050.
REQUEST FOR ADMISSION NO. 20: Admit that Lee County, Florida issued a mandatory evacuation order on September 17, 2022, applicable to the geographic area encompassing the Verimark Harborview Hotel & Conference Center located at 1400 Estero Boulevard, Fort Myers Beach, FL 33931.
REQUEST FOR ADMISSION NO. 21: Admit that Hurricane Callista constitutes an "occurrence" within the meaning of the Policy.
D. Physical Damage to the Insured Properties
REQUEST FOR ADMISSION NO. 22: Admit that the Verimark Grand Key Resort, a 312-room luxury resort and marina located at Mile Marker 48, Marathon, FL 33050, sustained physical loss or damage as a direct result of Hurricane Callista on or about September 18, 2022.
REQUEST FOR ADMISSION NO. 23: Admit that the Verimark Harborview Hotel & Conference Center, a 224-room hotel with a 40,000-square-foot conference facility located at 1400 Estero Boulevard, Fort Myers Beach, FL 33931, sustained physical loss or damage as a direct result of Hurricane Callista on or about September 18, 2022.
REQUEST FOR ADMISSION NO. 24: Admit that the Verimark Sunset Shores, a 186-room boutique resort located at 7200 Gulf Boulevard, St. Pete Beach, FL 33706, sustained physical loss or damage as a direct result of Hurricane Callista on or about September 18, 2022.
REQUEST FOR ADMISSION NO. 25: Admit that Arbor Claims Services LLC, the independent adjusting firm retained by Ironclad, conducted an on-site inspection of the Insured Properties on or about October 5, 2022.
REQUEST FOR ADMISSION NO. 26: Admit that the inspection conducted by Arbor Claims Services LLC confirmed the existence of physical damage at each of the three Insured Properties resulting from Hurricane Callista.
REQUEST FOR ADMISSION NO. 27: Admit that the lead independent adjuster assigned by Arbor Claims Services LLC to VHG's Hurricane Callista claim was Denise Whitford.
REQUEST FOR ADMISSION NO. 28: Admit that the physical damage to the Insured Properties caused by Hurricane Callista required the closure of all three properties for repair, remediation, and restoration.
E. Business Interruption at the Insured Properties
REQUEST FOR ADMISSION NO. 29: Admit that the Verimark Grand Key Resort was closed to guests and unable to conduct normal business operations from September 18, 2022 through March 15, 2023, a period of approximately 178 days, as a direct result of damage caused by Hurricane Callista.
REQUEST FOR ADMISSION NO. 30: Admit that the Verimark Harborview Hotel & Conference Center was closed to guests and unable to conduct normal business operations from September 18, 2022 through January 31, 2023, a period of approximately 135 days, as a direct result of damage caused by Hurricane Callista.
REQUEST FOR ADMISSION NO. 31: Admit that the Verimark Sunset Shores was fully closed to guests and unable to conduct normal business operations from September 18, 2022 through November 30, 2022, a period of approximately 73 days, and thereafter operated at substantially reduced capacity through approximately February 2023, as a direct result of damage caused by Hurricane Callista.
REQUEST FOR ADMISSION NO. 32: Admit that the closures and operational restrictions at the Insured Properties described in Requests Nos. 29 through 31 resulted in lost revenue and lost business income to VHG.
REQUEST FOR ADMISSION NO. 33: Admit that, prior to Hurricane Callista, during the twelve-month period preceding September 18, 2022, the Verimark Grand Key Resort had a pre-loss average daily rate ("ADR") of approximately Three Hundred Eighty-Nine Dollars ($389) and an average occupancy rate of approximately 82%.
REQUEST FOR ADMISSION NO. 34: Admit that, prior to Hurricane Callista, during the twelve-month period preceding September 18, 2022, the Verimark Harborview Hotel & Conference Center had a pre-loss average daily rate ("ADR") of approximately Two Hundred Ninety-Five Dollars ($295) and an average occupancy rate of approximately 74%.
REQUEST FOR ADMISSION NO. 35: Admit that, prior to Hurricane Callista, during the twelve-month period preceding September 18, 2022, the Verimark Sunset Shores had a pre-loss average daily rate ("ADR") of approximately Three Hundred Forty-Two Dollars ($342) and an average occupancy rate of approximately 79%.
F. Notice of Loss and Proof of Loss
REQUEST FOR ADMISSION NO. 36: Admit that VHG submitted an initial notice of loss to Ironclad on or about September 22, 2022, within four (4) days of Hurricane Callista's landfall, advising Ironclad of physical damage and anticipated business-interruption losses at the Insured Properties.
REQUEST FOR ADMISSION NO. 37: Admit that Ironclad received VHG's initial notice of loss submitted on or about September 22, 2022.
REQUEST FOR ADMISSION NO. 38: Admit that VHG submitted a sworn statement in proof of loss to Ironclad on or about November 15, 2022, setting forth in detail the nature, cause, and extent of VHG's claimed losses arising from Hurricane Callista.
REQUEST FOR ADMISSION NO. 39: Admit that VHG's sworn statement in proof of loss claimed business-interruption losses in the aggregate amount of Sixty Million Dollars ($60,000,000) across the three Insured Properties.
REQUEST FOR ADMISSION NO. 40: Admit that the Proof of Loss was submitted in the form and manner required by the Policy, including compliance with any notice provisions, timing requirements, and substantive content requirements set forth in the Policy.
G. Ironclad's Reservation of Rights and Denial of Coverage
REQUEST FOR ADMISSION NO. 41: Admit that Ironclad issued a reservation of rights letter to VHG on or about October 12, 2022, in connection with VHG's Hurricane Callista claim.
REQUEST FOR ADMISSION NO. 42: Admit that the reservation of rights letter identified, among other bases for reservation, a purported named-windstorm sub-limit of Fifteen Million Dollars ($15,000,000) for business-interruption losses as a ground for Ironclad's reservation of rights.
REQUEST FOR ADMISSION NO. 43: Admit that the Senior Vice President of Claims at Ironclad who was responsible for and had supervisory authority over VHG's Hurricane Callista claim is Victor Haddon.
REQUEST FOR ADMISSION NO. 44: Admit that Ironclad issued a formal denial of coverage letter to VHG dated February 3, 2023, denying VHG's Hurricane Callista business-interruption claim.
REQUEST FOR ADMISSION NO. 45: Admit that the Denial Letter denied VHG's claim for approximately Sixty Million Dollars ($60,000,000) in business-interruption losses arising from Hurricane Callista.
REQUEST FOR ADMISSION NO. 46: Admit that one basis for the denial set forth in the Denial Letter was Ironclad's assertion that the Policy contains a named-windstorm sub-limit of Fifteen Million Dollars ($15,000,000) applicable to business-interruption coverage arising from named windstorm events.
REQUEST FOR ADMISSION NO. 47: Admit that one basis for the denial set forth in the Denial Letter was Ironclad's assertion that VHG unreasonably delayed the restoration of the Insured Properties, thereby extending the period of restoration beyond a reasonable time and inflating the claimed business-interruption losses.
REQUEST FOR ADMISSION NO. 48: Admit that one basis for the denial set forth in the Denial Letter was Ironclad's assertion that portions of the damage at the Verimark Grand Key Resort resulted from storm surge (flood) and that such damage is excluded under the Policy's flood exclusion and/or anti-concurrent causation clause.
REQUEST FOR ADMISSION NO. 49: Admit that one basis for the denial set forth in the Denial Letter was Ironclad's assertion that VHG failed to take reasonable steps to mitigate its losses following Hurricane Callista.
REQUEST FOR ADMISSION NO. 50: Admit that, as of the date of the Denial Letter on February 3, 2023, Ironclad had not made any payment whatsoever to VHG under the Policy for business-interruption losses arising from Hurricane Callista.
H. The Windstorm Sub-Limit and 2022 Renewal
REQUEST FOR ADMISSION NO. 51: Admit that the Policy was renewed effective July 1, 2022 for the policy period July 1, 2022 through July 1, 2023.
REQUEST FOR ADMISSION NO. 52: Admit that negotiations regarding the terms and conditions of the July 2022 renewal of the Policy were conducted between Ironclad's underwriting department and VHG's broker of record, Tidewater Risk Advisors LLC.
REQUEST FOR ADMISSION NO. 53: Admit that Franklin Orde of Tidewater Risk Advisors LLC served as the lead account executive responsible for VHG's property and business-interruption insurance program during the July 2022 renewal process.
REQUEST FOR ADMISSION NO. 54: Admit that during the renewal negotiations for the July 2022 policy period, the deletion or modification of the named-windstorm sub-limit was discussed between Tidewater Risk Advisors LLC and Ironclad's underwriting department.
REQUEST FOR ADMISSION NO. 55: Admit that the annual premium for the Policy increased from the prior policy year (July 1, 2021 through July 1, 2022) in connection with the July 2022 renewal.
REQUEST FOR ADMISSION NO. 56: Admit that a portion of the premium increase reflected in the July 2022 renewal was attributable to modifications in the named-windstorm coverage terms under the Policy.
REQUEST FOR ADMISSION NO. 57: Admit that Ironclad issued or caused to be issued one or more endorsements to the Policy in connection with the July 2022 renewal, modifying the terms and conditions of coverage under the Policy.
I. Ironclad's Claims Handling
REQUEST FOR ADMISSION NO. 58: Admit that Ironclad retained Arbor Claims Services LLC, an independent adjusting firm with its principal office at 3300 W. Cypress Street, Suite 400, Tampa, FL 33607, to adjust, investigate, and evaluate VHG's Hurricane Callista claim on Ironclad's behalf.
REQUEST FOR ADMISSION NO. 59: Admit that Ironclad communicated with Pinnacle Surplus Lines Inc., the first excess carrier in the Tower, regarding VHG's Hurricane Callista claim prior to issuing the Denial Letter on February 3, 2023.
REQUEST FOR ADMISSION NO. 60: Admit that Ironclad retained the law firm of Fendowell Rourke & Stanton LLP to provide coverage opinions, legal advice, and/or to serve as outside coverage counsel in connection with VHG's Hurricane Callista claim.
REQUEST FOR ADMISSION NO. 61: Admit that Ironclad did not retain any independent forensic engineer to investigate, evaluate, or render opinions regarding the cause of loss at the Insured Properties prior to issuing the Denial Letter on February 3, 2023.
REQUEST FOR ADMISSION NO. 62: Admit that Ironclad did not retain any independent forensic economist, forensic accountant, or other financial expert to evaluate the quantum of VHG's business-interruption losses prior to issuing the Denial Letter on February 3, 2023.
J. Authenticity of Documents
REQUEST FOR ADMISSION NO. 63: Admit the authenticity of the document attached hereto as Exhibit 1, which is a true and correct copy of the declarations page of Policy Number IIC-PRP-2022-07541 issued by Ironclad to VHG for the policy period July 1, 2022 through July 1, 2023.
REQUEST FOR ADMISSION NO. 64: Admit the authenticity of the document attached hereto as Exhibit 2, which is a true and correct copy of the business-interruption insuring agreement contained in Policy Number IIC-PRP-2022-07541.
REQUEST FOR ADMISSION NO. 65: Admit the authenticity of the document attached hereto as Exhibit 3, which is a true and correct copy of the reservation of rights letter dated October 12, 2022, issued by Ironclad to VHG in connection with VHG's Hurricane Callista claim.
REQUEST FOR ADMISSION NO. 66: Admit the authenticity of the document attached hereto as Exhibit 4, which is a true and correct copy of the Denial Letter dated February 3, 2023, issued by Ironclad to VHG denying coverage for VHG's Hurricane Callista business-interruption claim.
REQUEST FOR ADMISSION NO. 67: Admit the authenticity of the document attached hereto as Exhibit 5, which is a true and correct copy of VHG's sworn statement in proof of loss dated November 15, 2022, submitted by VHG to Ironclad in connection with VHG's Hurricane Callista claim.
REQUEST FOR ADMISSION NO. 68: Admit the authenticity of the document attached hereto as Exhibit 6, which is a true and correct copy of VHG's initial notice of loss submitted to Ironclad on or about September 22, 2022, notifying Ironclad of VHG's Hurricane Callista losses.
RESPECTFULLY SUBMITTED,
CALDERWOOD & HARKNESS LLP Counsel for Plaintiff Verimark Hospitality Group Inc. 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 779-2200 Facsimile: (305) 779-2201
By: ________
Elaine Forsythe, Esq. Florida Bar No. 0847261
Email: eforsythe@calderwoodharkness.com
By: ________
Tiffany Rosenthal, Esq. Florida Bar No. 1023489
Email: trosenthal@calderwoodharkness.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of June, 2023, a true and correct copy of the foregoing Plaintiff's First Request for Admissions to Defendant Ironclad Indemnity Corporation was served via the Florida Courts E-Filing Portal and by electronic mail upon the following counsel of record:
Gregory Stanton, Esq. Meredith Liang, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, CT 06103 Telephone: (860) 524-3100
Email: gregory.stanton@bracewellrourke.com
Email: meredith.liang@bracewellrourke.com
and
101 E. Kennedy Boulevard, Suite 3900 Tampa, FL 33602
Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.
Patricia Kraus, Esq. Raymond Cho, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, NY 10022 Telephone: (212) 688-4500
Email: pkraus@delvecchiokraus.com
Email: rcho@delvecchiokraus.com
Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.
By: ________
Tiffany Rosenthal, Esq. Florida Bar No. 1023489