IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 2022-CA-031547
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
IRONCLAD INDEMNITY CORPORATION; PINNACLE SURPLUS LINES INC.; MONTCLAIR ASSURANCE COMPANY; and SOVEREIGN RE LTD.,
Defendants.
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PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT IRONCLAD INDEMNITY CORPORATION
Served: June 5, 2023
Propounding Party: Verimark Hospitality Group Inc. ("VHG"), by and through its counsel of record, Calderwood & Harkness LLP
Responding Party: Ironclad Indemnity Corporation ("Ironclad")
Set Number: First
PRELIMINARY STATEMENT
Plaintiff Verimark Hospitality Group Inc. ("VHG"), by and through its undersigned counsel of record, Calderwood & Harkness LLP, hereby propounds this First Request for Production of Documents (the "Requests") directed to Defendant Ironclad Indemnity Corporation ("Ironclad"), pursuant to Florida Rule of Civil Procedure 1.350. VHG respectfully requests that Ironclad produce the documents described herein at the offices of Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, Florida 33131, or at such other mutually agreeable location, on or before the date specified below.
These Requests seek documents related to Ironclad's issuance, underwriting, claims handling, adjustment, and denial of coverage under Property and Business Interruption Insurance Policy No. IIC-PRP-2022-07541 (the "Policy"), with a policy period of July 1, 2022 through July 1, 2023, for losses sustained by VHG arising from Hurricane Callista, a Category 4 hurricane that made landfall in the Lower Florida Keys on September 18, 2022. VHG submitted its initial notice of loss on September 22, 2022 and a sworn statement in proof of loss on November 15, 2022, claiming approximately $60,000,000 in business-interruption and property-damage losses across three insured hospitality properties. Ironclad issued a Reservation of Rights Letter on October 12, 2022 and subsequently issued a Denial Letter on February 3, 2023, formally denying coverage for the Claim. VHG disputes Ironclad's denial in its entirety and contends, among other things, that the named-windstorm sub-limit upon which Ironclad relies was deleted during the July 2022 renewal negotiations and that Ironclad's reliance on the flood exclusion, anti-concurrent causation clause, and alleged failure to mitigate is without merit.
Pursuant to the discovery schedule established by the Honorable Catherine Embry at the Case Management Conference held on May 1, 2023, and consistent with the thirty (30) day response period prescribed by Florida Rule of Civil Procedure 1.350, Ironclad's responses to these Requests are due on or before July 5, 2023.
DEFINITIONS
As used herein, the following terms shall have the meanings set forth below. These definitions are intended to supplement, and not to limit, the definitions provided by the Florida Rules of Civil Procedure, applicable case law, and common usage:
1. "You," "Your," or "Ironclad" shall mean Ironclad Indemnity Corporation, together with its past and present officers, directors, employees, agents, representatives, attorneys, adjusters, claims handlers, underwriters, independent contractors, and any other person or entity acting or purporting to act on its behalf, including without limitation any subsidiaries, affiliates, parent companies, divisions, or departments thereof.
2. "VHG" or "Plaintiff" shall mean Verimark Hospitality Group Inc., a Delaware corporation, together with its past and present officers, directors, employees, agents, and representatives, including without limitation Sandra Pellegrini (VP Risk Management).
3. "Policy" or "Primary Policy" shall mean the Property and Business Interruption Insurance Policy No. IIC-PRP-2022-07541, issued by Ironclad to VHG, with a policy period of July 1, 2022 through July 1, 2023, including without limitation all declarations pages, insuring agreements, conditions, exclusions, endorsements, riders, amendments, binders, interim binders, manuscript or non-standard endorsements, schedules of locations, schedules of values, statements of values, agreed-amount endorsements, and any and all other documents or instruments forming part of or modifying the Policy. This term also includes any predecessor or renewal policies for the three immediately preceding policy years, i.e., the policy periods of July 1, 2019 through July 1, 2020; July 1, 2020 through July 1, 2021; and July 1, 2021 through July 1, 2022, together with all endorsements, riders, and amendments thereto.
4. "Excess Policies" shall mean: (a) the first excess layer policy issued by Pinnacle Surplus Lines Inc. (Policy No. PSL-XS1-2022-3390), providing $15,000,000 in coverage excess of $25,000,000; (b) the second excess layer policy issued by Montclair Assurance Company (Policy No. MAC-XS2-2022-09817), providing $10,000,000 in coverage excess of $40,000,000; and (c) the third excess layer policy issued by Sovereign Re Ltd. (Policy No. SRL-XS3-2022-5102), providing $10,000,000 in coverage excess of $50,000,000.
5. "Claim" shall mean VHG's claim for business-interruption and property-damage losses under the Policy arising from Hurricane Callista, encompassing the entirety of VHG's submission to Ironclad, including without limitation VHG's initial notice of loss submitted on September 22, 2022, VHG's sworn statement in proof of loss submitted on November 15, 2022, claiming approximately $60,000,000 in combined business-interruption and property-damage losses, and all subsequent correspondence, submissions, supplemental documentation, and communications between VHG (or its representatives) and Ironclad (or its representatives) relating thereto.
6. "Hurricane Callista" shall mean the Category 4 hurricane that made landfall in the Lower Florida Keys, in the vicinity of Big Pine Key, on September 18, 2022, at approximately 1:30 PM Eastern Daylight Time, with maximum sustained winds of approximately 145 miles per hour and associated storm surge of 8 to 14 feet in Monroe County and 6 to 10 feet in Lee County, as well as all associated wind, rain, flooding, storm surge, wave action, and other meteorological and hydrological phenomena caused by or related to the hurricane.
7. "Insured Properties" or "Properties" shall mean the following three hospitality properties owned and/or operated by VHG and insured under the Policy: (a) the Verimark Grand Key Resort, located at Mile Marker 48, Marathon, Florida 33050; (b) the Verimark Harborview Hotel & Conference Center, located at 1400 Estero Boulevard, Fort Myers Beach, Florida 33931; and (c) the Verimark Sunset Shores, located at 7200 Gulf Boulevard, St. Pete Beach, Florida 33706.
8. "Arbor Claims" or "Arbor" shall mean Arbor Claims Services LLC, the independent adjusting firm retained by Ironclad in connection with the Claim, together with its past and present officers, directors, employees, agents, subcontractors, and representatives, specifically including but not limited to Denise Whitford, Lead Adjuster, and any other individual employed by or affiliated with Arbor Claims who was involved in the investigation, adjustment, or evaluation of the Claim.
9. "Tidewater" shall mean Tidewater Risk Advisors LLC, VHG's insurance broker of record for the Policy, together with its past and present officers, directors, employees, agents, and representatives, specifically including but not limited to Franklin Orde, Account Executive, and any other individual employed by or affiliated with Tidewater who was involved in the placement, negotiation, or servicing of the Policy or the submission of the Claim.
10. "Excess Carriers" shall mean Pinnacle Surplus Lines Inc., Montclair Assurance Company, and Sovereign Re Ltd., individually and/or collectively, together with their respective officers, directors, employees, agents, attorneys, adjusters, and representatives.
11. "Document" or "Documents" shall have the broadest meaning permitted under Florida Rule of Civil Procedure 1.350 and shall include, without limitation, all writings, electronically stored information ("ESI"), drawings, graphs, charts, photographs, sound recordings, images, spreadsheets, databases, data compilations, emails, text messages, instant messages (including messages transmitted via platforms such as Northgate Data Systems, Meridian Solutions, or similar applications), voicemail recordings, memoranda, notes, reports, letters, facsimiles, presentations, agendas, minutes, ledgers, journals, invoices, receipts, contracts, agreements, and any other tangible or intangible thing from which information can be obtained, translated, or interpreted, whether in paper form, electronic form, or any other medium, and including all metadata associated with any electronic document.
12. "Communication" or "Communications" shall mean any oral, written, or electronic exchange, transfer, or dissemination of information of any kind, including without limitation letters, emails, text messages, instant messages, telephone calls (whether recorded or not), voicemail messages, video conferences, in-person meetings or conversations, memoranda, notes, summaries, or reports memorializing or reflecting any of the foregoing.
13. "Reservation of Rights Letter" shall mean the letter issued by Ironclad to VHG dated October 12, 2022, in which Ironclad reserved its rights to deny coverage under the Policy with respect to the Claim, together with any attachments, enclosures, or exhibits thereto, and any corrected, amended, or supplemental reservations of rights.
14. "Denial Letter" shall mean the letter issued by Ironclad to VHG dated February 3, 2023, in which Ironclad formally denied coverage for the Claim under the Policy, together with any attachments, enclosures, or exhibits thereto, and any corrected, amended, or supplemental denials.
15. "Windstorm Sub-Limit" shall mean the named-windstorm sub-limit of $15,000,000 for business-interruption coverage that Ironclad asserts is contained in the Policy and upon which Ironclad bases its coverage denial, and that VHG contends was deleted during the July 2022 renewal negotiations between Ironclad and VHG's broker of record, Tidewater Risk Advisors LLC.
16. "Period of Restoration" shall mean the "period of restoration" as that term is defined in the Policy, referring to the time period during which business-interruption coverage is payable, commencing at the time of the direct physical loss or damage and ending when the property should be repaired, rebuilt, or replaced with reasonable speed and similar quality.
INSTRUCTIONS
The following instructions shall apply to each of the Requests set forth below:
1. Scope of Production. Ironclad shall produce all responsive, non-privileged documents in its possession, custody, or control. As used herein, "possession, custody, or control" includes documents held by Ironclad's officers, directors, employees, agents, attorneys, adjusters (including Arbor Claims Services LLC), experts, consultants, reinsurers, and any other person or entity acting or purporting to act on Ironclad's behalf, whether or not such documents are located at Ironclad's principal offices or at another location. Documents held by Ironclad's attorneys are included within the scope of production except to the extent protected by the attorney-client privilege or the attorney work-product doctrine.
2. Time Period. Unless otherwise expressly specified in a particular Request, these Requests cover the period from January 1, 2022 through the date of production. Where a Request references predecessor policies or historical documents, the applicable time frame is specified within that Request.
3. Bates Numbering. All documents produced shall bear consecutive Bates numbers (e.g., IRONCLAD-0000001, IRONCLAD-0000002, etc.) sufficient to uniquely identify each page of every document produced. The Bates numbering convention shall be applied consistently throughout all productions in response to these Requests and any supplemental productions.
4. Format of Production. Documents shall be produced in one of the following formats, at Ironclad's election: (a) for electronically stored information, in native format with all associated metadata preserved, accompanied by load files (Concordance DAT and OPT files or their functional equivalent) containing extracted text and metadata fields including, at a minimum, custodian, author, date created, date modified, date sent, date received, subject, sender, recipients, CC, BCC, file name, file extension, and file path; or (b) as single-page, Group IV TIFF images with searchable OCR text and associated load files containing all extracted metadata. Hard-copy documents that do not exist in electronic form shall be produced as they are kept in the ordinary course of business, with documents from each file or folder produced together and identified as such, or, alternatively, organized and labeled to correspond to each numbered Request. Each hard-copy document shall be Bates-stamped.
5. Privilege Log. To the extent that any responsive document or communication is withheld in whole or in part on the basis of the attorney-client privilege, the attorney work-product doctrine, or any other privilege or protection, Ironclad shall prepare and serve, contemporaneously with its document production, a privilege log in accordance with Florida Rule of Civil Procedure 1.280(b)(6). The privilege log shall identify each withheld document with sufficient specificity to permit Plaintiff and the Court to assess the validity of the privilege claim, and shall include, at a minimum, the following information for each entry: (a) the date of the document or communication; (b) the identity of the author(s) or speaker(s); (c) the identity of the recipient(s) or addressee(s); (d) the identity of any persons copied, blind-copied, or otherwise receiving the document or communication; (e) a description of the general subject matter of the document or communication in sufficient detail to enable assessment of the privilege claim without revealing the privileged content; and (f) the specific privilege or protection asserted as the basis for withholding the document or communication.
6. Continuing Obligation to Supplement. These Requests are continuing in nature pursuant to Florida Rule of Civil Procedure 1.280(e). If, at any time after Ironclad's initial production, Ironclad obtains, locates, discovers, or becomes aware of additional documents responsive to any Request, Ironclad shall promptly supplement its production and serve such additional documents upon VHG's counsel without further request.
7. Identification of Documents Not Produced. If any document responsive to any Request has been lost, destroyed, discarded, deleted, overwritten, or is otherwise unavailable for production, Ironclad shall: (a) identify the document with as much specificity as possible, including its date, author, recipient(s), and general subject matter; (b) describe the contents of the document to the extent known; (c) state the date on which the document was lost, destroyed, discarded, or deleted, or the last date on which the document is known to have existed; (d) state the reason for the loss, destruction, or unavailability of the document; and (e) identify the person(s) who authorized, directed, or carried out the loss, destruction, or deletion of the document.
REQUESTS FOR PRODUCTION
REQUEST NO. 1 — Complete Policy File
Produce a complete, certified copy of the Policy (Property and Business Interruption Insurance Policy No. IIC-PRP-2022-07541), including without limitation each and every one of the following:
(a) The declarations page(s), including all supplemental or amended declarations;
(b) The complete policy form, including all insuring agreements, conditions, and exclusions, in their entirety;
(c) All endorsements, riders, and amendments, whether issued at inception of the Policy, during the policy period, or at renewal, including any endorsements issued after the occurrence of Hurricane Callista;
(d) The policy binder and any interim binders issued in connection with the July 2022 renewal;
(e) Any manuscript or non-standard endorsements negotiated between Ironclad and VHG or Tidewater during the July 2022 renewal;
(f) The named-windstorm sub-limit endorsement, if any such endorsement exists and is part of the Policy;
(g) Any endorsement, rider, amendment, or other policy document deleting, modifying, amending, or otherwise altering the named-windstorm sub-limit;
(h) Any schedule of locations or schedule of covered properties attached to or incorporated by reference into the Policy;
(i) Any schedule of values, statement of values, or agreed-amount endorsement attached to or incorporated by reference into the Policy;
(j) The flood exclusion endorsement or clause, including any sub-limits, deductibles, or carve-outs applicable to flood, storm surge, or water damage;
(k) The anti-concurrent causation clause or endorsement, in whatever form it appears in the Policy;
(l) The business-interruption coverage section of the Policy, including without limitation the definition of "period of restoration," the calculation methodology for business-interruption losses, the waiting period (if any), and any sub-limits applicable to business-interruption coverage;
(m) Any extra expense coverage provisions, including sub-limits and deductibles applicable thereto;
(n) Any civil authority coverage provisions;
(o) Any ingress/egress coverage provisions; and
(p) Any predecessor policies for the three immediately preceding policy years (July 1, 2019 through July 1, 2020; July 1, 2020 through July 1, 2021; and July 1, 2021 through July 1, 2022), including all declarations pages, endorsements, riders, and amendments thereto.
REQUEST NO. 2 — Complete Underwriting File
Produce the complete underwriting file for the Policy, including without limitation each and every one of the following:
(a) All underwriting submissions, applications, questionnaires, supplemental applications, and proposals received from or submitted by VHG, Tidewater Risk Advisors LLC (including Franklin Orde), or any other broker, agent, or intermediary in connection with the July 2022 renewal or any prior renewal;
(b) All underwriting memoranda, notes, analyses, evaluations, summaries, and recommendations prepared by any Ironclad underwriter, underwriting manager, or underwriting authority in connection with the Policy or the July 2022 renewal;
(c) All correspondence (including emails, letters, and memoranda) between Ironclad's underwriting department and Tidewater Risk Advisors LLC (including but not limited to Franklin Orde) regarding the July 2022 renewal, including all negotiations regarding policy terms, conditions, endorsements, sub-limits, premiums, and deductibles;
(d) All correspondence (including emails, letters, and memoranda) between Ironclad's underwriting department and VHG or Sandra Pellegrini (VP Risk Management) regarding the July 2022 renewal;
(e) All documents relating to the negotiation, inclusion, modification, or deletion of the named-windstorm sub-limit (the $15,000,000 windstorm sub-limit) for business-interruption coverage at the July 2022 renewal, including any binder confirmations, term sheets, quote letters, or binding authority communications that address the windstorm sub-limit;
(f) All premium quotations, indications, and final premium calculations for the Policy, including any premium adjustments reflecting changes to coverage terms, sub-limits, or deductibles negotiated during the July 2022 renewal;
(g) All risk assessments, property valuations, catastrophe modeling reports (including any RMS, AIR, or Harborline Software model outputs), wind exposure analyses, and flood zone determinations prepared, obtained, or relied upon by Ironclad in connection with the underwriting of the Policy;
(h) All loss history reports, loss runs, and claims experience summaries for VHG's property insurance program, whether prepared by Ironclad or provided by prior insurers;
(i) All documents reflecting Ironclad's agreement, refusal, or counter-proposals regarding any terms, conditions, endorsements, sub-limits, or deductibles requested by VHG or Tidewater during the July 2022 renewal negotiations, including any "redline" or "tracked changes" versions of policy forms or endorsements exchanged during negotiations;
(j) Any reinsurance treaties, facultative certificates, or communications with reinsurers relating to VHG's property program, including any documents reflecting the terms upon which Ironclad ceded or proposed to cede risk associated with the Policy to any reinsurer; and
(k) All underwriting committee or underwriting authority meeting minutes, agendas, and presentations relating to the VHG account or the July 2022 renewal.
REQUEST NO. 3 — Complete Claim File
Produce the complete claim file maintained by Ironclad for the Claim, including without limitation each and every one of the following:
(a) VHG's initial notice of loss, submitted on September 22, 2022, together with all attachments, supplements, and amendments thereto;
(b) VHG's sworn statement in proof of loss, submitted on November 15, 2022, claiming approximately $60,000,000 in combined business-interruption and property-damage losses, together with all supporting documentation submitted therewith or thereafter;
(c) All internal claim notes, diary entries, activity logs, file memoranda, and supervisor reviews maintained by Ironclad with respect to the Claim, in chronological order;
(d) All correspondence (including emails, letters, facsimiles, and memoranda) between Ironclad and VHG (or its counsel, Calderwood & Harkness LLP) regarding the Claim, from the date of the initial notice of loss through the present;
(e) All correspondence (including emails, letters, facsimiles, and memoranda) between Ironclad and Tidewater Risk Advisors LLC (or Franklin Orde) regarding the Claim;
(f) All reserve worksheets, reserve setting memoranda, initial reserve calculations, and documents reflecting any and all changes to reserves (whether increases, decreases, or closures) for the Claim, including the dates of such changes and the identity of the person(s) who authorized each change;
(g) All coverage determinations, coverage opinions, coverage analyses, and coverage memoranda prepared by Ironclad's claims department, coverage department, or in-house counsel, to the extent not protected by the attorney-client privilege or attorney work-product doctrine;
(h) The Reservation of Rights Letter dated October 12, 2022, together with all attachments and enclosures thereto;
(i) The Denial Letter dated February 3, 2023, together with all attachments and enclosures thereto;
(j) All drafts of the Reservation of Rights Letter and the Denial Letter, including versions reflecting revisions, edits, comments, or tracked changes by any Ironclad employee, officer, or agent;
(k) All internal memoranda, emails, or other communications discussing the bases for the reservation of rights and/or the denial of coverage, including without limitation discussions and analyses of the windstorm sub-limit, the period of restoration, the flood exclusion, the anti-concurrent causation clause, and VHG's alleged failure to mitigate;
(l) All claim committee or claims authority memoranda, presentations, meeting minutes, and agendas relating to the Claim, including any meetings at which the Claim was presented to Ironclad's claims committee or any other internal authority for a coverage determination or reserve action;
(m) Any and all documents reflecting the escalation of the Claim to senior management, including without limitation documents reflecting the involvement of Victor Haddon (SVP Claims) or any other officer or executive of Ironclad in the evaluation, handling, or oversight of the Claim; and
(n) All documents reflecting payments, partial payments, advance payments, or offers of payment under the Policy for the Claim, including any payment authorizations, check requests, wire transfer confirmations, or settlement proposals.
REQUEST NO. 4 — Arbor Claims Services / Independent Adjuster Documents
Produce all documents constituting, reflecting, or relating to communications between Ironclad and Arbor Claims Services LLC (or its employees, agents, or subcontractors, including without limitation Denise Whitford, Lead Adjuster) in connection with the Claim, including without limitation each and every one of the following:
(a) The engagement or retention agreement between Ironclad and Arbor Claims Services LLC, including any scope-of-work descriptions, fee schedules, and terms and conditions of the engagement;
(b) All scope-of-work letters, instructions, directives, or assignment memoranda issued by Ironclad to Arbor Claims regarding the Claim, including any instructions regarding the scope of investigation, the issues to be addressed, or the format of reports;
(c) All reports prepared by Arbor Claims (or Denise Whitford) regarding the Claim, including preliminary reports, interim reports, status reports, and final reports;
(d) All property inspection reports, photographs, videos, drone footage, and site visit notes from the October 5, 2022 inspection of the Insured Properties, as well as any and all subsequent inspections, site visits, or reinspections conducted at any of the Insured Properties;
(e) All damage estimates, repair cost estimates, replacement cost estimates, and valuations prepared by Arbor Claims, including any spreadsheets, worksheets, or supporting documentation underlying such estimates;
(f) All period-of-restoration analyses, restoration timeline estimates, and business-interruption calculations prepared by Arbor Claims;
(g) All correspondence (including emails, letters, telephone call logs, and memoranda) between Arbor Claims (or Denise Whitford) and Ironclad (including Victor Haddon, SVP Claims, or any other Ironclad employee or representative) regarding the Claim;
(h) All invoices, statements, and billing records submitted by Arbor Claims to Ironclad for services rendered in connection with the investigation, adjustment, or evaluation of the Claim; and
(i) All documents reflecting instructions, directives, or guidance from Ironclad to Arbor Claims regarding coverage issues, including without limitation instructions relating to the windstorm sub-limit, the flood exclusion, the anti-concurrent causation clause, the period of restoration, and VHG's alleged failure to mitigate.
REQUEST NO. 5 — Communications with Excess Carriers
Produce all documents constituting, reflecting, or relating to communications between Ironclad and any Excess Carrier — Pinnacle Surplus Lines Inc., Montclair Assurance Company, and/or Sovereign Re Ltd. — or their respective counsel, agents, adjusters, or other representatives, regarding the Claim, including without limitation each and every one of the following:
(a) All notices of loss, notices of claim, or notices of circumstance forwarded by Ironclad to any Excess Carrier in connection with the Claim;
(b) All correspondence regarding coverage positions, reservations of rights, or denials of coverage taken by any Excess Carrier, including any follow-form coverage determinations;
(c) All joint defense communications (to the extent not protected by the attorney-client privilege, the attorney work-product doctrine, or the common-interest privilege);
(d) All documents reflecting any Excess Carrier's agreement or commitment to follow Ironclad's coverage determination regarding the Claim, or any disagreement with such determination;
(e) All documents relating to the denial of coverage issued by Pinnacle Surplus Lines Inc. on or about February 10, 2023, including any internal analyses, correspondence, or memoranda regarding that denial;
(f) All communications regarding the coordination of coverage defenses among Ironclad and the Excess Carriers, including any discussions of legal strategy, expert retention, or factual investigation;
(g) All communications regarding the allocation of potential liability, exposure, or indemnity obligations among the various layers of the insurance tower (primary, first excess, second excess, and third excess); and
(h) All communications regarding settlement authority, settlement discussions, settlement proposals, mediation, or alternative dispute resolution with respect to the Claim, whether initiated by Ironclad, any Excess Carrier, or any third party.
REQUEST NO. 6 — Internal Claims Evaluations and Coverage Analyses
Produce all documents constituting, reflecting, or relating to Ironclad's internal evaluation of VHG's Claim, including without limitation each and every one of the following:
(a) All internal memoranda, reports, analyses, summaries, or presentations evaluating the merits, strength, or weakness of VHG's Claim, whether prepared by claims personnel, underwriting personnel, coverage counsel, or any other Ironclad department;
(b) All coverage opinions or analyses prepared by Ironclad's in-house counsel, coverage department, or any other internal department or individual (to the extent not protected by the attorney-client privilege or attorney work-product doctrine);
(c) All documents reflecting the decision-making process leading to the issuance of the Reservation of Rights Letter on October 12, 2022, including any memoranda, emails, or other communications in which the bases for the reservation of rights were discussed, debated, or approved;
(d) All documents reflecting the decision-making process leading to the issuance of the Denial Letter on February 3, 2023, including any memoranda, emails, or other communications in which the bases for the denial were discussed, debated, or approved;
(e) All documents reflecting Ironclad's analysis of the windstorm sub-limit issue, including without limitation Ironclad's analysis of whether the $15,000,000 named-windstorm sub-limit was deleted at the July 2022 renewal, and any review of underwriting files, broker correspondence, or policy documents undertaken in connection with that analysis;
(f) All documents reflecting Ironclad's analysis of the flood exclusion and anti-concurrent causation clause as applied to storm-surge damage at the Verimark Grand Key Resort, where storm surge was measured at 8 to 14 feet in Monroe County, including any analysis of whether the flood exclusion bars coverage for wind damage that was concurrent with storm-surge damage;
(g) All documents reflecting Ironclad's analysis of the period of restoration for each of the three Insured Properties, including:
(i) The Verimark Grand Key Resort, which was closed from September 18, 2022 through March 15, 2023 (approximately 178 days);
(ii) The Verimark Harborview Hotel & Conference Center, which was closed from September 18, 2022 through January 31, 2023 (approximately 135 days); and
(iii) The Verimark Sunset Shores, which was fully closed from September 18, 2022 through November 30, 2022 (approximately 73 days), and which operated at reduced capacity through approximately February 2023;
(h) All documents reflecting Ironclad's analysis of VHG's alleged failure to mitigate losses, including any specific acts or omissions that Ironclad contends constituted a failure to mitigate;
(i) All claims committee meeting minutes, agendas, presentations, and attendance records relating to the Claim, including any meetings at which coverage for the Claim was discussed or a coverage determination was made;
(j) All documents reflecting the involvement of Victor Haddon (SVP Claims) in the evaluation, handling, or supervision of the Claim, including any directives, approvals, or instructions issued by Mr. Haddon; and
(k) All documents reflecting any internal disagreement, differing views, alternative analyses, or dissenting opinions regarding coverage for the Claim, whether expressed by claims personnel, underwriting personnel, in-house counsel, or any other Ironclad employee or officer.
REQUEST NO. 7 — Documents Relating to the Windstorm Sub-Limit
Produce all documents constituting, reflecting, or relating to the named-windstorm sub-limit (the $15,000,000 sub-limit for business-interruption coverage) in the Policy, including without limitation each and every one of the following:
(a) All documents reflecting the inclusion, exclusion, modification, or deletion of the windstorm sub-limit in any policy year, including the current policy year (July 2022 – July 2023) and the three immediately preceding policy years;
(b) All communications between Ironclad (including its underwriting department and any underwriter or underwriting manager) and Tidewater Risk Advisors LLC (including Franklin Orde, Account Executive) regarding the windstorm sub-limit during the July 2022 renewal, including any requests by Tidewater to delete or modify the sub-limit and any responses by Ironclad;
(c) All communications between Ironclad and VHG (including Sandra Pellegrini, VP Risk Management) regarding the windstorm sub-limit, whether during the July 2022 renewal or at any other time;
(d) All endorsement forms, drafts of endorsements, manuscript endorsements, or form endorsements relating to the windstorm sub-limit, whether in final or draft form, and whether or not attached to the issued Policy;
(e) All premium calculations, premium adjustments, premium worksheets, or rating analyses reflecting the deletion, modification, or inclusion of the windstorm sub-limit, including any documentation showing the premium impact of deleting the sub-limit;
(f) All underwriting guidelines, bulletins, directives, memoranda, or instructions in effect at the time of the July 2022 renewal addressing named-windstorm sub-limits for Florida coastal properties, hospitality risks, or similar risk classes;
(g) All documents comparing the windstorm sub-limit provisions in the current Policy to those in the predecessor policies for the three immediately preceding policy years; and
(h) All binding authority communications, binder confirmations, or coverage confirmation communications that reference or address the windstorm sub-limit.
REQUEST NO. 8 — Documents Relating to the Flood Exclusion and Anti-Concurrent Causation Clause
Produce all documents constituting, reflecting, or relating to the following:
(a) The flood exclusion in the Policy, including the complete text of the exclusion, any endorsements modifying or limiting the exclusion, any carve-outs or exceptions to the exclusion, and any sub-limits or separate coverage grants for flood-related losses;
(b) The anti-concurrent causation clause in the Policy, including the complete text of the clause and any endorsements modifying, limiting, or expanding its application;
(c) Ironclad's application of the flood exclusion and/or anti-concurrent causation clause to the Claim, including specifically Ironclad's analysis of storm-surge damage at the Verimark Grand Key Resort, where storm surge was measured at 8 to 14 feet in Monroe County, and Ironclad's determination as to whether and to what extent wind damage and storm-surge (flood) damage were concurrent, successive, or independent causes of loss;
(d) Any engineering, forensic, meteorological, hydrological, or scientific reports obtained, commissioned, reviewed, or relied upon by Ironclad to distinguish between wind damage and storm-surge (flood) damage at any of the Insured Properties, including reports prepared by any engineer, forensic meteorologist, hydrologist, or other expert;
(e) All internal analyses, memoranda, emails, or other communications regarding the concurrent causation issue as applied to Hurricane Callista, including any analysis of whether the "efficient proximate cause" doctrine or any other causation standard applies under the Policy or Florida law; and
(f) Any correspondence with experts, consultants, engineers, forensic specialists, meteorologists, or other third parties retained by Ironclad regarding the cause of loss at the Insured Properties, including engagement letters, instructions, draft reports, and final reports.
REQUEST NO. 9 — Documents Relating to Period of Restoration
Produce all documents constituting, reflecting, or relating to Ironclad's analysis or determination of the period of restoration for each of the three Insured Properties, including without limitation each and every one of the following:
(a) All documents reflecting Ironclad's determination of when repairs at each Insured Property "could have been completed with reasonable speed," or any similar determination regarding the appropriate end date of the period of restoration;
(b) All repair timelines, construction schedules, restoration estimates, critical-path analyses, or project management documents prepared, obtained, reviewed, or relied upon by Ironclad or Arbor Claims in connection with the period-of-restoration determination;
(c) All documents reflecting Ironclad's analysis of whether VHG's actual restoration timelines were reasonable, including:
(i) The Verimark Grand Key Resort, which was closed from September 18, 2022 through March 15, 2023;
(ii) The Verimark Harborview Hotel & Conference Center, which was closed from September 18, 2022 through January 31, 2023; and
(iii) The Verimark Sunset Shores, which experienced a partial closure from September 18, 2022 through November 30, 2022, followed by operation at reduced capacity through approximately February 2023;
(d) All documents reflecting Ironclad's position on the appropriate period of restoration for each Insured Property, including any calculations of the number of days for which business-interruption coverage should be payable;
(e) All contractor bids, estimates, proposals, or scopes of work obtained by Ironclad or Arbor Claims relating to repairs, restoration, or reconstruction at any of the Insured Properties; and
(f) All documents reflecting communications with construction consultants, engineers, contractors, architects, or project managers regarding restoration timelines at any of the Insured Properties.
REQUEST NO. 10 — Documents Relating to Failure-to-Mitigate Defense
Produce all documents constituting, reflecting, or relating to Ironclad's contention that VHG failed to take reasonable steps to reduce the period of business interruption or otherwise mitigate its losses, including without limitation each and every one of the following:
(a) All documents identifying the specific steps, actions, or measures that Ironclad contends VHG should have taken but failed to take to mitigate its business-interruption and property-damage losses;
(b) All documents reflecting Ironclad's analysis of VHG's mitigation efforts, including any evaluation of the reasonableness of VHG's actions following Hurricane Callista;
(c) All communications between Ironclad (or Arbor Claims) and VHG regarding mitigation of losses, including any requests by Ironclad that VHG take specific mitigation steps and any responses by VHG thereto;
(d) All industry standards, guidelines, best practices, published recommendations, or other authorities relied upon by Ironclad in asserting that VHG failed to mitigate its losses, including any standards applicable to the hospitality industry, hotel operations, or disaster recovery in coastal Florida; and
(e) All expert reports, analyses, opinions, or consulting engagements obtained or commissioned by Ironclad regarding mitigation, including any analysis of what mitigation measures were available to VHG and the estimated impact of such measures on VHG's claimed losses.
REQUEST NO. 11 — Documents Relating to VHG's Business-Interruption Loss Quantification
Produce all documents constituting, reflecting, or relating to Ironclad's analysis or evaluation of VHG's claimed business-interruption losses of approximately $60,000,000, including without limitation each and every one of the following:
(a) All documents reflecting Ironclad's independent analysis, calculation, or quantification of VHG's business-interruption losses, including any alternative loss calculations prepared by Ironclad, Arbor Claims, or any consultant or expert retained by Ironclad;
(b) All documents reflecting Ironclad's evaluation of VHG's sworn statement in proof of loss, submitted on November 15, 2022, including any memoranda, notes, or analyses prepared in connection with Ironclad's review of the proof of loss and its supporting documentation;
(c) All financial analyses, loss calculations, loss models, valuations, or projections prepared by Ironclad, Arbor Claims, or any consultant, accountant, or expert retained by Ironclad in connection with the quantification or evaluation of VHG's business-interruption claim;
(d) All documents reflecting Ironclad's assessment of VHG's pre-loss financial performance, including but not limited to analyses of VHG's revenue, gross profit, net income, average daily rate (ADR), revenue per available room (RevPAR), occupancy rates, earnings before interest, taxes, depreciation, and amortization (EBITDA), and any other financial metrics used by Ironclad to evaluate VHG's business-interruption claim;
(e) All documents reflecting Ironclad's assessment of saved expenses (i.e., expenses that did not continue or were reduced during the closure periods) and the impact of such saved expenses on the calculation of VHG's business-interruption losses; and
(f) All expert reports, analyses, opinions, or presentations prepared by Graystone Consulting Group LLC (including Dr. Warren Birk) or any other expert, consultant, or forensic accountant retained by the defense regarding the quantification or evaluation of VHG's business-interruption losses, to the extent such documents are in Ironclad's possession, custody, or control and are not protected by the attorney work-product doctrine.
REQUEST NO. 12 — Correspondence with Outside Counsel
Produce all non-privileged correspondence between Ironclad and its outside counsel, Fendowell Rourke & Stanton LLP (including without limitation Gregory Stanton, Meredith Liang, Colin Ashford, and any other attorney or professional at that firm who worked on matters relating to the Claim), to the extent such correspondence relates to the Claim and is not protected by the attorney-client privilege or the attorney work-product doctrine. Without limitation, this Request encompasses correspondence that was shared with or copied to third parties (such as Arbor Claims, Excess Carriers, or reinsurers) and thereby waived any otherwise applicable privilege.
To the extent any documents responsive to this Request are withheld in whole or in part on the basis of the attorney-client privilege, the attorney work-product doctrine, or any other privilege or protection, Ironclad shall identify each such document on the privilege log required by these Instructions, with sufficient specificity to permit Plaintiff and the Court to assess the validity of the privilege claim.
REQUEST NO. 13 — Claims Handling Guidelines and Procedures
Produce all claims handling guidelines, manuals, procedures, protocols, best practices guides, training materials, standard operating procedures, and supervisory directives in effect at Ironclad during the period July 1, 2022 through February 3, 2023, that were applicable to any of the following:
(a) The handling, investigation, adjustment, and evaluation of property and business-interruption insurance claims;
(b) The handling, investigation, adjustment, and evaluation of hurricane or named-windstorm claims, including any special procedures, expedited handling protocols, or catastrophe response procedures applicable to claims arising from named hurricanes in the State of Florida;
(c) Claims involving concurrent causation, multiple causes of loss, or the application of anti-concurrent causation clauses;
(d) Claims requiring the retention and use of independent adjusting firms, including protocols governing the selection, engagement, supervision, and oversight of independent adjusters;
(e) The retention, engagement, and supervision of independent adjusters, including any guidelines governing the scope of authority, reporting obligations, and communication protocols between Ironclad and its independent adjusting firms; and
(f) The issuance of reservations of rights, coverage denials, and other coverage communications to insureds, including any requirements regarding the timing, content, review, and approval of such communications.
REQUEST NO. 14 — Similar Claims
Produce all documents reflecting Ironclad's handling of any other business-interruption claim arising from Hurricane Callista under any other property or business-interruption insurance policy issued by Ironclad in the State of Florida, including without limitation:
(a) Claim files (or relevant portions thereof) for any other Hurricane Callista business-interruption claim in which Ironclad invoked a named-windstorm sub-limit as a basis for limiting or denying coverage;
(b) Claim files (or relevant portions thereof) for any other Hurricane Callista business-interruption claim in which Ironclad invoked the flood exclusion, the anti-concurrent causation clause, or both, as a basis for limiting or denying coverage;
(c) Any aggregate loss reports, catastrophe summaries, event reports, or statistical summaries of Hurricane Callista claims prepared by Ironclad or on Ironclad's behalf; and
(d) All documents reflecting Ironclad's general coverage position, coverage strategy, or coverage guidance applicable to Hurricane Callista claims, including any bulletins, directives, or memoranda issued by Ironclad's claims department or coverage department to claims handlers or adjusters.
VHG does not seek personally identifiable information of other insureds and will accept the redaction of insured names, policy numbers, and other personally identifiable information, provided that such redactions are clearly marked and do not obscure the substance of the documents. VHG reserves the right to seek unredacted versions of such documents upon a showing of relevance and need, subject to an appropriate protective order.
REQUEST NO. 15 — Reinsurance Documents
Produce all documents constituting, reflecting, or relating to any reinsurance arrangements applicable to the Policy or the Claim, including without limitation each and every one of the following:
(a) All reinsurance treaties (whether treaty, facultative, or excess-of-loss), certificates, slip placements, or facultative placements covering the Policy or VHG's property program, or any layer or portion thereof;
(b) All notices to reinsurers regarding the Claim, including initial notices of loss, reserve notifications, and loss advices;
(c) All correspondence between Ironclad and any reinsurer (or reinsurance intermediary) regarding coverage for the Claim, including any discussions of coverage issues, coverage defenses, or claims handling;
(d) All documents reflecting any reinsurer's involvement in, influence on, direction of, or contribution to Ironclad's coverage determination regarding the Claim, including any communications in which a reinsurer expressed a view on coverage, recommended a course of action, or provided instructions regarding the handling of the Claim; and
(e) All documents reflecting any reinsurer's instruction, suggestion, recommendation, or approval regarding the handling of the Claim, the issuance of the Reservation of Rights Letter, the issuance of the Denial Letter, or the decision to deny coverage, including any communications in which reinsurers were consulted or informed regarding any of the foregoing.
REQUEST NO. 16 — Electronically Stored Information