1021-00003 · Verimark Hospitality Group · Discovery/Plaintiff Propounded

rfp-to-ironclad-second-set-underwriting.docx DOCUMENT Antitrust

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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,

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 SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT IRONCLAD INDEMNITY CORPORATION

Plaintiff Verimark Hospitality Group Inc. ("VHG" or "Plaintiff"), by and through its undersigned counsel, Calderwood & Harkness LLP, hereby propounds this Second Request for Production of Documents upon Defendant Ironclad Indemnity Corporation ("Ironclad"), pursuant to the Florida Rules of Civil Procedure, Rules 1.350 and 1.280. These requests are served in addition to, and not in lieu of, Plaintiff's First Request for Production of Documents served on or about February 17, 2023, and all responses thereto remain outstanding to the extent previously demanded and not fully complied with.

Ironclad is requested to produce the documents described below within thirty (30) days of service of this request, or at such earlier time as may be agreed upon by the parties or ordered by the Court. Documents should be produced at the offices of Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, Florida 33131, or electronically in a mutually agreed-upon format, including load-ready production with associated metadata, Bates-numbered sequentially, and with searchable text where available.

These requests are narrowly targeted to Ironclad's underwriting files and related correspondence pertaining to the July 2022 renewal of the property and business-interruption insurance policy issued to VHG, Policy No. IIC-PRP-2022-07541, with particular focus on the negotiation and purported deletion of the named-windstorm sub-limit endorsement. The documents sought herein are directly relevant to the central issues in this litigation, namely whether Ironclad bound full named-windstorm coverage without sub-limit for the July 1, 2022 – July 1, 2023 policy period, and whether Ironclad's subsequent assertion of a $15,000,000 named-windstorm sub-limit constitutes a breach of contract and/or a bad-faith denial of coverage arising from Hurricane Ian losses sustained by VHG.

DEFINITIONS

As used in this Second Request for Production of Documents, the following terms shall have the meanings set forth below:

1. "VHG" means Verimark Hospitality Group Inc., a Delaware corporation, including all of its subsidiaries, affiliates, officers, directors, employees, agents, predecessors, and representatives, whether acting in an individual or representative capacity.

2. "Ironclad" means Ironclad Indemnity Corporation, a Connecticut corporation, including all of its subsidiaries, divisions, affiliates, officers, directors, employees, agents, underwriters, managing general agents, third-party administrators, and representatives, whether acting in an individual or representative capacity.

3. "Policy" or "Primary Policy" means the property and business-interruption insurance policy issued by Ironclad to VHG bearing Policy No. IIC-PRP-2022-07541, for the policy period July 1, 2022 through July 1, 2023, with a primary layer limit of $25,000,000 per occurrence for business interruption and a deductible of $500,000, together with all endorsements, riders, amendments, manuscript changes, and any other documents forming part of or attached to the policy.

4. "Tidewater" means Tidewater Risk Advisors LLC, VHG's insurance broker of record, located at 2600 S. Bayshore Drive, Suite 800, Miami, Florida 33133, including its employees, agents, sub-agents, and representatives, including but not limited to Franklin Orde, Account Executive, and any other individual who acted on behalf of Tidewater in connection with the placement, negotiation, or renewal of VHG's property and business-interruption insurance program.

5. "Named-Windstorm Sub-Limit" or "Windstorm Sub-Limit" means the $15,000,000 named-windstorm sub-limit for business-interruption coverage that Ironclad asserts is contained within the Policy and that VHG contends was deleted at the July 2022 Renewal, including any endorsement, rider, amendment, or policy provision that imposes, modifies, restricts, or eliminates such sub-limit.

6. "Renewal" or "July 2022 Renewal" means the renewal of VHG's property and business-interruption insurance program effective July 1, 2022, including all negotiations, submissions, applications, binders, quotations, indications, proposals, endorsements, and all other actions and communications leading to the issuance of the Policy, from the initial submission of renewal information through the final issuance of the Policy.

7. "Document" or "Documents" shall be defined as broadly as permitted under the Florida Rules of Civil Procedure, Rule 1.350, and includes all writings, drawings, graphs, charts, photographs, phone records, electronically stored information ("ESI"), emails (including all attachments thereto), text messages (including SMS and MMS), instant messages (including those transmitted via any messaging platform such as Northgate Data Systems, Meridian Solutions, or similar applications), metadata, spreadsheets, databases, presentations, memoranda, correspondence, notes (whether handwritten or typed), reports, audio recordings, video recordings, voicemail messages, calendars, calendar entries, and any other data compilations from which information can be obtained or translated, if necessary, through detection devices into reasonably usable form, in any format, whether in draft or final form, and whether stored in hard copy, electronically, or in any other medium.

8. "Communication" or "Communications" means every manner or means of disclosure, transfer, or exchange of information, whether oral, written, or electronic, including but not limited to conversations (whether in person or by telephone), meetings, videoconferences, telephone calls, emails, text messages, instant messages, letters, memoranda, facsimiles, and any other form of transmission of information between two or more persons, regardless of the medium used.

9. "Concerning," "Relating to," or "Regarding" means referring to, describing, evidencing, constituting, mentioning, reflecting, pertaining to, connected with, commenting on, in respect of, about, or having any logical connection with the subject matter referenced in the particular request.

10. "Prior Policy" means any property and business-interruption insurance policy issued by Ironclad to VHG for policy periods preceding the July 1, 2022 inception of the Policy, including but not limited to the policy period July 1, 2021 through July 1, 2022, and any earlier policy periods for which Ironclad served as VHG's primary property and business-interruption insurer.

11. "Underwriting File" means all documents maintained by Ironclad's underwriting department or any individual underwriter concerning the evaluation, pricing, quotation, binding, issuance, and renewal of the Policy and/or any Prior Policy, including but not limited to risk assessments, actuarial analyses, submission documents, applications, loss-history reports, loss runs, premium calculations, rate worksheets, endorsement drafts, binder correspondence, internal approvals, referral forms, authority-level designations, peer reviews, and any other documents customarily maintained in an underwriting file.

12. "Person" means any natural person, corporation, partnership, limited liability company, joint venture, association, trust, governmental entity, or any other legal entity, and includes any agent, representative, or employee of such entity.

INSTRUCTIONS

The following instructions apply to each of the requests set forth below:

1. Continuing Obligation. These requests are continuing in nature pursuant to Florida Rule of Civil Procedure 1.280(e). If, after serving its initial response, Ironclad obtains, discovers, or becomes aware of additional documents responsive to any of these requests, Ironclad must promptly supplement its responses and produce such additional documents in accordance with the Florida Rules of Civil Procedure.

2. Organization of Production. Documents should be produced as they are kept in the usual course of business, or organized and labeled to correspond to the categories in each numbered request. Where documents are produced electronically, they should be produced in their native format or as single-page TIFF images with associated extracted text and metadata load files, Bates-numbered sequentially, and accompanied by a production index identifying the request(s) to which each document is responsive.

3. Privilege Log. If any document responsive to these requests is withheld in whole or in part on the basis of any claim of privilege, attorney-client privilege, work-product protection, or any other legally recognized privilege or immunity from discovery, Ironclad must provide a privilege log identifying each such document with sufficient detail to permit Plaintiff and the Court to assess the validity of the claim. The privilege log shall include, at a minimum: (a) the date of the document; (b) the author or sender of the document; (c) all recipients (including "cc" and "bcc" recipients for emails); (d) a description of the document's subject matter that is sufficient to evaluate the privilege claim without revealing privileged content; and (e) the specific privilege or protection asserted. The privilege log shall be produced contemporaneously with Ironclad's document production.

4. Lost or Destroyed Documents. If any document responsive to these requests has been lost, destroyed, discarded, deleted, overwritten, or is otherwise no longer in Ironclad's possession, custody, or control, Ironclad shall: (a) identify the document by description, date, author, and recipient(s) to the best of its knowledge; (b) describe the document's contents and subject matter; (c) state the date and circumstances of its loss, destruction, or disposal; (d) identify the person(s) who authorized or effected the loss, destruction, or disposal; and (e) identify any person with knowledge of the document or its contents.

5. Possession, Custody, or Control. These requests are directed to all documents in Ironclad's possession, custody, or control, regardless of the physical or electronic location of such documents. Documents shall be deemed to be within Ironclad's possession, custody, or control if Ironclad has the legal right or practical ability to obtain the documents, including documents held by Ironclad's agents, representatives, managing general agents, third-party administrators, reinsurers, reinsurance intermediaries, brokers, accountants, auditors, consultants, or outside counsel (to the extent such documents are not protected by a valid claim of privilege).

6. Construction. The use of the singular includes the plural, and vice versa. The use of any gender includes all genders. The terms "and" and "or" shall be construed conjunctively or disjunctively as necessary to make the request inclusive rather than exclusive, so as to bring within the scope of the request all responses that might otherwise be construed to be outside its scope. The use of the present tense includes the past tense, and vice versa. The term "including" means "including but not limited to" and shall not be construed as limiting the scope of any request.

DOCUMENT REQUESTS

REQUEST NO. 13:

Produce Ironclad's complete underwriting file for the Policy (Policy No. IIC-PRP-2022-07541), including but not limited to all submissions, applications, supplemental applications, risk assessments, actuarial analyses, loss-history reports, loss runs, premium calculations, rate worksheets, rating algorithms or models, internal memoranda, underwriting worksheets, underwriting summaries, approval forms, referral documents, authority-level documentation, peer review forms, underwriting committee minutes or notes, and notes of any underwriter, underwriting assistant, or other Ironclad personnel involved in the evaluation, pricing, and issuance of the Policy for the July 1, 2022 – July 1, 2023 policy period. This request encompasses all documents maintained or generated from the time VHG's renewal submission was first received by Ironclad through the date of final issuance of the Policy, as well as any documents added to the underwriting file thereafter through the date of this production.

REQUEST NO. 14:

Produce all communications between Ironclad (including any Ironclad underwriter, underwriting assistant, manager, executive, or other representative) and Tidewater Risk Advisors LLC (including Franklin Orde and any other Tidewater employee or representative) concerning the July 2022 Renewal of VHG's property and business-interruption insurance program, including but not limited to all emails (with all attachments), letters, facsimile transmissions, telephone call logs, records of telephone conversations, meeting notes, memoranda of understanding, and any other written or electronic communications, from January 1, 2022 through July 1, 2022. This request includes all communications relating to the scope of coverage, terms and conditions, sub-limits, deductibles, exclusions, endorsements, premium, and any other aspect of the renewal negotiation.

REQUEST NO. 15:

Produce all documents concerning the Named-Windstorm Sub-Limit in the Policy or any Prior Policy issued by Ironclad to VHG, including but not limited to:

(a) All drafts, versions, iterations, and final forms of any endorsement imposing, modifying, increasing, decreasing, or deleting the Named-Windstorm Sub-Limit, whether in the Policy or any Prior Policy, including any manuscript endorsements prepared specifically for VHG's program;

(b) All internal communications among Ironclad underwriters, managers, executives, actuaries, or other personnel concerning whether to impose, retain, modify, increase, decrease, or delete the Named-Windstorm Sub-Limit for the July 2022 Renewal, including any communications reflecting the business rationale, risk analysis, or pricing considerations underlying any such decision;

(c) All communications between Ironclad and Tidewater (including Franklin Orde) concerning the Named-Windstorm Sub-Limit, including any requests by Tidewater to delete, modify, increase, or waive the sub-limit, any responses by Ironclad thereto, and any counterproposals or alternative terms discussed in connection with the sub-limit;

(d) All premium calculations, pricing analyses, actuarial worksheets, rate change summaries, or any other documents reflecting any adjustment to the premium attributable to the deletion, modification, or retention of the Named-Windstorm Sub-Limit for the July 2022 Renewal, including any comparison of premiums with and without the sub-limit.

REQUEST NO. 16:

Produce all binders, cover notes, certificates of insurance, and binding confirmations issued by Ironclad or its authorized agents in connection with the July 2022 Renewal of the Policy, including any interim binders, conditional binders, temporary binders, or preliminary binding authorizations issued prior to the formal issuance of the Policy, together with all transmittal communications accompanying such binders or confirmations. This request includes any binder or binding confirmation that sets forth the terms, conditions, sub-limits, deductibles, or exclusions applicable to the bound coverage.

REQUEST NO. 17:

Produce all quotations, indications, and proposals provided by Ironclad to Tidewater or VHG in connection with the July 2022 Renewal, including all terms, conditions, sub-limits, deductibles, exclusions, and coverage grants quoted at any stage of the renewal process, and all revisions, modifications, counterproposals, or updated quotations issued at any point during the negotiation. This request encompasses initial indications, formal quotations, revised quotations, and any final quotation or proposal upon which the binding of coverage was based, together with any cover letters, explanatory memoranda, or transmittal correspondence accompanying such quotations.

REQUEST NO. 18:

Produce all documents reflecting or constituting Ironclad's internal underwriting guidelines, underwriting manuals, underwriting bulletins, underwriting directives, authority-level matrices, and any other written policies or procedures in effect during calendar year 2022 that were applicable to the underwriting of property and business-interruption risks for hospitality, hotel, resort, or similar commercial properties located in the State of Florida, including any guidelines or directives specifically addressing named-windstorm sub-limits, windstorm deductibles, windstorm exclusions, or coastal-property underwriting standards for Florida properties. This request includes any updates, amendments, supplements, or revisions to such guidelines, manuals, bulletins, or directives issued during calendar year 2022.

REQUEST NO. 19:

Produce all documents concerning any reinsurance arrangements applicable to the Policy or to Ironclad's exposure under the Policy, including but not limited to:

(a) Reinsurance treaties (including excess-of-loss treaties, quota-share treaties, and catastrophe treaties) applicable to Ironclad's property and business-interruption book of business in Florida during the July 1, 2022 – July 1, 2023 treaty period, to the extent such treaties are relevant to the coverage provided under the Policy;

(b) Facultative reinsurance certificates, binders, or placements specific to VHG's account or the Policy;

(d) Communications with any reinsurer, reinsurance intermediary, or reinsurance broker concerning the Named-Windstorm Sub-Limit, the terms of the July 2022 Renewal, or the scope of reinsurance coverage applicable to VHG's account;

to the extent such documents are not protected by a valid claim of privilege. If Ironclad asserts that any document responsive to this request is protected by any privilege, it shall be identified on a privilege log in accordance with Instruction No. 3 above.

REQUEST NO. 20:

Produce the complete underwriting file for the Prior Policy covering the policy period July 1, 2021 – July 1, 2022, including all submissions, applications, quotations, binders, endorsements, riders, amendments, and final policy forms, together with all internal memoranda, underwriting worksheets, premium calculations, and approval documents, to the extent such documents have not already been produced in response to Plaintiff's First Request for Production of Documents served on or about February 17, 2023. To the extent any documents responsive to this request were previously produced, Ironclad may identify such documents by Bates number rather than reproduce them.

REQUEST NO. 21:

Produce all communications between Ironclad and any of the excess-layer carriers in VHG's property and business-interruption insurance tower—specifically, Pinnacle Surplus Lines Inc. (Policy No. PSL-XS1-2022-3390), Montclair Assurance Company (Policy No. MAC-XS2-2022-09817), or Sovereign Re Ltd. (Policy No. SRL-XS3-2022-5102)—concerning the terms, conditions, sub-limits, deductibles, exclusions, or coverage grants of the Primary Policy, including any communications regarding the Named-Windstorm Sub-Limit, the scope of named-windstorm coverage, or the consistency of the Primary Policy terms with the terms of the excess layers, from January 1, 2022 through the date of production. This request includes communications with any broker, intermediary, or representative acting on behalf of any excess-layer carrier.

REQUEST NO. 22:

Produce all documents reflecting the identities and roles of each Ironclad employee, agent, managing general agent, or representative who participated in the underwriting, pricing, binding, issuance, or delivery of the Policy for the July 2022 Renewal, including each such person's full name, title, department, office location, and specific role in the renewal process. This request includes, without limitation, the lead underwriter, any supervising or reviewing underwriter, any actuarial or pricing analyst, any underwriting assistant, and any individual who approved, authorized, or signed off on the terms, premium, or issuance of the Policy.

REQUEST NO. 23:

Produce all documents constituting or reflecting the final policy form of the Policy as issued, including all endorsements, riders, amendments, manuscript changes, declarations pages, schedules of locations, schedules of values, conditions, and any other documents forming a part of the Policy as delivered to the insured, together with any transmittal correspondence, cover letters, or delivery confirmations accompanying the delivery of the Policy to Tidewater or VHG. This request supplements Request No. 3 of Plaintiff's First Request for Production of Documents and is specifically targeted at ensuring that the complete Policy, as actually issued and delivered, including all endorsements in their final form, is produced and part of the record. If Ironclad contends that the Policy as issued includes the Named-Windstorm Sub-Limit endorsement, Ironclad shall produce the specific endorsement form in its final, executed version, together with all transmittal documentation evidencing the delivery of that endorsement to Tidewater or VHG.

REQUEST NO. 24:

Produce all documents reflecting any post-binding or post-issuance communications between Ironclad (including any Ironclad underwriter, policy services representative, or other personnel) and Tidewater (including Franklin Orde) regarding corrections, amendments, revisions, or clarifications to the Policy, including but not limited to any communications concerning the inclusion, deletion, modification, or applicability of the Named-Windstorm Sub-Limit endorsement, from July 1, 2022 through December 31, 2022. This request encompasses any requests for endorsement changes, policy correction requests, policy review correspondence, and any other post-issuance communications bearing on the final terms of the Policy as understood by the parties.

REQUEST NO. 25:

Produce all documents concerning any prior claims or losses submitted by VHG under any property or business-interruption policy issued by Ironclad for any policy period, including claim files, loss runs, claims-history reports, loss-ratio analyses, large-loss reports, and any other claims-related documents maintained in Ironclad's underwriting file for the July 2022 Renewal or referenced in Ironclad's underwriting evaluation of VHG's renewal submission. This request is limited to claims-related documents as maintained or referenced in Ironclad's underwriting files and is not intended to encompass the entirety of any claims or adjusting file, which is the subject of separate discovery.

CERTIFICATION AND SIGNATURE

Respectfully submitted,

CALDERWOOD & HARKNESS LLP Counsel for Plaintiff Verimark Hospitality Group Inc. 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131

By: ________

Tiffany Rosenthal Florida Bar No. 118742 Telephone: (305) 459-2200

Email: trosenthal@calderwoodharkness.com

Lead Associate

Elaine Forsythe Florida Bar No. 087213 Telephone: (305) 459-2100

Email: eforsythe@calderwoodharkness.com

Responsible Partner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 15, 2023, a true and correct copy of the foregoing Plaintiff's Second Request for Production of Documents to Defendant Ironclad Indemnity Corporation was served via electronic mail and U.S. First Class Mail, postage prepaid, upon the following counsel of record:

Gregory Stanton, Esq. Meredith Liang, Esq. Fendowell Rourke & Stanton LLP 101 E. Kennedy Boulevard, Suite 3900 Tampa, Florida 33602 gstanton@bracewellrourke.com mliang@bracewellrourke.com 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, New York 10022 pkraus@delvecchiokraus.com rcho@delvecchiokraus.com Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.