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

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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,

IRONCLAD INDEMNITY CORPORATION; PINNACLE SURPLUS LINES INC.; MONTCLAIR ASSURANCE COMPANY; and SOVEREIGN RE LTD.,

Defendants.

________/

PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT MONTCLAIR ASSURANCE COMPANY

Plaintiff Verimark Hospitality Group Inc. ("VHG" or "Plaintiff"), by and through its undersigned counsel, Calderwood & Harkness LLP, pursuant to Florida Rule of Civil Procedure 1.350, hereby requests that Defendant Montclair Assurance Company ("Montclair") produce the documents and electronically stored information ("ESI") described in the Document Requests set forth below for inspection and copying. Montclair shall produce all responsive documents within thirty (30) days of service of this Request at the offices of Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, Florida 33131, or at such other location as the parties may agree in writing. This Request is served on June 10, 2023.

DEFINITIONS

As used in this Request, the following terms shall have the meanings set forth below:

1. "Plaintiff" or "VHG" shall mean Verimark Hospitality Group Inc., a Delaware corporation, including its officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, and successors. The term specifically includes, but is not limited to, Marcus Ellsworth (Chief Executive Officer), Diane Calder (Chief Financial Officer), Nathaniel Driscoll (General Counsel), and Sandra Pellegrini (Vice President, Risk Management).

2. "Montclair" or "You" / "Your" shall mean Montclair Assurance Company, a New York-domiciled admitted insurance carrier with principal offices at 1 Liberty Plaza, 38th Floor, New York, New York 10006, and all of its officers, directors, employees, agents, adjusters, representatives, subsidiaries, affiliates, predecessors, and successors. The term includes any division, department, or unit of Montclair involved in the underwriting, issuance, or claims administration of the Montclair Policy, as well as any third-party administrator acting on Montclair's behalf.

3. "Ironclad" shall mean Ironclad Indemnity Corporation, a Connecticut-domiciled stock insurance company with principal offices at 55 Constitution Boulevard, Hartford, Connecticut 06103, including its officers, directors, employees, agents, adjusters, and representatives.

4. "Pinnacle" shall mean Pinnacle Surplus Lines Inc., a Texas-domiciled surplus-lines insurer with principal offices at 200 Congress Avenue, Suite 1400, Austin, Texas 78701, including its officers, directors, employees, agents, adjusters, and representatives.

5. "Sovereign Re" shall mean Sovereign Re Ltd., a Bermuda-domiciled excess and reinsurance carrier with principal offices at 14 Front Street, Hamilton HM 11, Bermuda, including its officers, directors, employees, agents, adjusters, and representatives.

6. "Co-Defendants" shall mean, collectively, Ironclad Indemnity Corporation, Pinnacle Surplus Lines Inc., and Sovereign Re Ltd.

7. "Montclair Policy" or "Policy" shall mean the second excess layer insurance policy issued by Montclair to VHG bearing policy number MAC-XS2-2022-09817, for the policy period July 1, 2022 through July 1, 2023, providing $10,000,000 in coverage excess of $40,000,000 (comprised of a $25,000,000 primary layer and a $15,000,000 first excess layer). The term includes all endorsements, amendments, riders, binders, declarations pages, certificates of insurance, and any other documents forming part of or attached to the policy contract.

8. "Hurricane Callista" or "the Loss" shall mean Hurricane Callista, a Category 4 hurricane that made landfall on September 18, 2022, in the Lower Florida Keys, and all resulting damage, losses, business interruption, extra expenses, and related consequences sustained by VHG at or in connection with the Insured Properties.

9. "Insured Properties" or "Properties" shall mean the three VHG-owned resort properties affected by Hurricane Callista, specifically:

(a) Verimark Grand Key Resort, Mile Marker 48, Marathon, Florida 33050;

(b) Verimark Harborview Hotel & Conference Center, 1400 Estero Boulevard, Fort Myers Beach, Florida 33931; and

10. "Claim" shall mean VHG's claim for business-interruption and property-damage losses arising from Hurricane Callista, including the notice of loss submitted on September 22, 2022, the sworn statement in proof of loss submitted on November 15, 2022, and all related submissions, supplements, amendments, and correspondence, in the total amount of approximately $60,000,000.

11. "Tidewater" shall mean Tidewater Risk Advisors LLC, VHG's insurance broker of record, with principal offices at 2600 S. Bayshore Drive, Suite 800, Miami, Florida 33133, including its employees, agents, and representatives. The term specifically includes, but is not limited to, Franklin Orde, Account Executive.

12. "Arbor Claims" shall mean Arbor Claims Services LLC, the independent adjusting firm retained by Ironclad in connection with VHG's Claim, with principal offices at 3300 W. Cypress Street, Suite 400, Tampa, Florida 33607, including its employees, agents, and representatives. The term specifically includes, but is not limited to, Denise Whitford, Lead Independent Adjuster.

13. "Delvecchio & Kraus" shall mean Delvecchio & Kraus LLP, counsel for Montclair Assurance Company and Sovereign Re Ltd. in this action, with offices at 425 Park Avenue, 20th Floor, New York, New York 10022.

14. "Fendowell Rourke" shall mean Fendowell Rourke & Stanton LLP, counsel for Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc. in this action, with offices at 280 Trumbull Street, Suite 2200, Hartford, Connecticut 06103, and 101 E. Kennedy Boulevard, Suite 3900, Tampa, Florida 33602.

15. "Document(s)" shall be given the broadest definition permitted under the Florida Rules of Civil Procedure, including all writings, recordings, photographs, electronically stored information, emails, text messages, instant messages, memoranda, reports, correspondence, letters, notes, presentations, spreadsheets, databases, ledgers, logs, calendars, schedules, handwritten notes, drafts, audio or video recordings, and all other tangible things, whether in paper or electronic form, regardless of the medium on which they are stored.

16. "Communication(s)" shall mean every manner or means of exchange of information between two or more persons, whether oral, written, or electronic, including but not limited to letters, emails, text messages, instant messages, facsimiles, telephone calls, voicemails, video conferences, web conferences, in-person discussions, and any other method of transmitting information.

17. "Relating to" or "Concerning" shall mean referring to, regarding, describing, evidencing, constituting, mentioning, reflecting, pertaining to, connected with, commenting on, responsive to, or having any logical relationship to the subject matter referenced in the applicable Request.

18. "Identify" (as to a document) shall mean to state the date of the document, the author or sender, the recipient(s), the subject matter, the type of document (e.g., letter, memorandum, email, report), and the present custodian or location of the document.

INSTRUCTIONS

The following Instructions apply to each Document Request set forth below:

Instruction 1 — Scope of Production. Montclair shall produce all responsive documents in its possession, custody, or control, including documents held by its agents, attorneys (subject to any valid claim of privilege), consultants, experts, independent adjusters, accountants, and representatives. Documents are deemed to be in Montclair's "possession, custody, or control" if Montclair has the right or practical ability to obtain them from a third party, including but not limited to Delvecchio & Kraus LLP, Arbor Claims Services LLC, Graystone Consulting Group LLC, and any reinsurer.

Instruction 2 — Time Period. Unless otherwise specified in a particular Request, the time period covered by these Requests is July 1, 2021 through the date of Montclair's production. Documents created or received outside this time period should nonetheless be produced if they are responsive to a specific Request that does not contain a temporal limitation.

Instruction 3 — Format of Production. Documents maintained in electronic form shall be produced in their native electronic format, preserving all metadata (including author, date created, date modified, and custodian information). Hard-copy documents shall be produced as image files (TIFF or PDF format) with searchable OCR text layers and any associated metadata. Emails shall be produced in their native format (e.g., .msg or .eml) with all attachments. ESI shall be produced in accordance with Florida Rule of Civil Procedure 1.350 and any applicable case management order entered in this action. Where documents are maintained in a database or structured data format, they shall be produced in a reasonably usable format, such as delimited text files, with a data dictionary explaining each field.

Instruction 4 — Privilege Log. To the extent any responsive document is withheld in whole or in part on the basis of the attorney-client privilege, work-product doctrine, or any other applicable privilege or protection, Montclair shall provide 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 detail to enable VHG and the Court to assess the applicability of the claimed privilege, including, at a minimum: (a) the date of the document; (b) the author or sender; (c) all recipients and persons copied; (d) a general description of the subject matter of the document; (e) the type of document (e.g., email, memorandum, letter); and (f) the specific privilege or protection asserted.

Instruction 5 — Continuing Obligation. These Requests impose a continuing obligation on Montclair to supplement its production if additional responsive documents are identified, located, or come into Montclair's possession, custody, or control after the date of the initial production. Supplemental production shall be made promptly and in any event within fifteen (15) days of Montclair's identification of any additional responsive documents.

Instruction 6 — Document Preservation. Montclair shall not destroy, alter, conceal, or otherwise dispose of any document responsive to these Requests. This instruction supplements and does not replace any independent obligation Montclair may have under applicable law, court order, or the parties' agreed-upon litigation hold to preserve relevant documents and ESI.

DOCUMENT REQUESTS

REQUEST NO. 1 — Complete Claim File

Produce the complete claim file maintained by Montclair relating to VHG's Claim under the Montclair Policy (policy number MAC-XS2-2022-09817) arising from Hurricane Callista, including but not limited to all internal memoranda, reports, notes, evaluations, reserve analyses, coverage opinions, claim diaries, claim logs, diary entries, activity logs, telephone logs, task assignments, supervisor reviews, authority requests, payment records, and any other documents reflecting Montclair's investigation, evaluation, handling, administration, or disposition of the Claim. This Request encompasses all documents maintained in any claims management system, database, or electronic platform used by Montclair, including but not limited to any entries in Montclair's electronic claim file system.

REQUEST NO. 2 — The Montclair Policy and All Policy Forms

Produce a complete, certified copy of the Montclair Policy, policy number MAC-XS2-2022-09817, including all declarations pages, coverage forms, coverage parts, conditions, definitions sections, endorsements, amendments, riders, binders, certificates of insurance, schedules of underlying insurance, and any other documents constituting the insurance contract between Montclair and VHG for the policy period July 1, 2022 through July 1, 2023. If any policy form or endorsement was issued, modified, or amended at any time during the policy period, produce all versions of such form or endorsement.

REQUEST NO. 3 — Underwriting File

Produce the complete underwriting file for the Montclair Policy, including but not limited to all applications, submissions, proposals, quotes, binders, underwriting worksheets, risk assessments, risk surveys, actuarial analyses, loss histories, premium calculations, premium allocation documents, pricing models, reinsurance information, underwriting authority documentation, and all Communications with or received from Tidewater Risk Advisors LLC (including Franklin Orde), Ironclad, Pinnacle, or any other party relating to the underwriting, pricing, binding, or issuance of the Montclair Policy. This Request also encompasses any documents reflecting Montclair's evaluation of the Insured Properties, including property schedules, total insurable value calculations, and catastrophe modeling results.

REQUEST NO. 4 — Prior Policy Years

Produce all policies, endorsements, binders, declarations pages, and underwriting files for any insurance policies issued by Montclair to VHG for any policy period prior to the current Montclair Policy, including the immediately preceding policy year (July 1, 2021 through July 1, 2022), to the extent such documents relate to the coverage terms, sub-limits, exclusions, endorsements, or conditions at issue in this action, including but not limited to any named-windstorm sub-limit, flood exclusion, anti-concurrent causation clause, or period-of-restoration provision. This Request is intended to permit comparison of the prior-year policy terms with the current Montclair Policy terms.

REQUEST NO. 5 — Communications with VHG

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and VHG (including VHG's officers, directors, employees, and agents, specifically including Sandra Pellegrini and Nathaniel Driscoll) relating to the Claim, the Insured Properties, Hurricane Callista, or the Montclair Policy. This Request includes but is not limited to all correspondence, emails, letters, notices, telephone records, and meeting notes exchanged between Montclair and VHG at any time from September 18, 2022 through the date of production.

REQUEST NO. 6 — Communications with Tidewater Risk Advisors

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Tidewater Risk Advisors LLC (including Franklin Orde and any other Tidewater employee, agent, or representative) relating to the placement, underwriting, binding, renewal, or terms of the Montclair Policy, or relating to VHG's Claim, the Insured Properties, Hurricane Callista, or any coverage issue arising under the Montclair Policy or the underlying policies. This Request encompasses Communications from the initial placement of the Montclair Policy through the date of production.

REQUEST NO. 7 — Communications with Ironclad Indemnity Corporation

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Ironclad Indemnity Corporation (including Victor Haddon and any other Ironclad officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or the coverage positions taken by any insurer in connection with the Claim. This Request includes but is not limited to any joint defense communications, coverage strategy discussions, claim-handling coordination, reserve discussions, loss quantification exchanges, and any agreements or understandings regarding the allocation of losses among the tower of insurance.

REQUEST NO. 8 — Communications with Pinnacle Surplus Lines Inc.

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Pinnacle Surplus Lines Inc. (including any Pinnacle officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, the coverage positions of any insurer in the insurance tower, or any joint defense, claim coordination, or cooperation arrangement between Montclair and Pinnacle.

REQUEST NO. 9 — Communications with Sovereign Re Ltd.

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Sovereign Re Ltd. (including any Sovereign Re officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, coverage positions, joint defense arrangements, common-interest agreements, reserve analyses, reinsurance, or any other matter relating to this action or the coverage dispute between VHG and Montclair.

REQUEST NO. 10 — Communications with Fendowell Rourke & Stanton LLP

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Fendowell Rourke & Stanton LLP (including Gregory Stanton, Meredith Liang, Colin Ashford, and any other attorney or staff member of that firm) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or the coverage or defense of this action, to the extent such Communications are not protected by a valid, applicable privilege. To the extent any such Communication is withheld on the basis of privilege, it shall be identified on the privilege log required by Instruction 4.

REQUEST NO. 11 — Communications with Delvecchio & Kraus LLP (Subject to Privilege)

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Delvecchio & Kraus LLP (including Patricia Kraus, Raymond Cho, and any other attorney or staff member of that firm) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or this action. To the extent Montclair asserts the attorney-client privilege, work-product doctrine, or any other privilege or protection over any such Communications, Montclair shall provide a privilege log identifying each withheld document with sufficient detail to enable VHG and the Court to evaluate the applicability of the claimed privilege, as specified in Instruction 4.

REQUEST NO. 12 — Communications with Arbor Claims Services LLC

Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Arbor Claims Services LLC (including Denise Whitford and any other Arbor Claims employee, agent, or representative) relating to VHG's Claim, the inspection of the Insured Properties, the assessment of damages, loss quantification, business-interruption analysis, or any other matter relating to Hurricane Callista or the claims-adjustment process for VHG's Claim. This Request encompasses all correspondence, emails, reports, memoranda, and telephone logs exchanged between Montclair and Arbor Claims at any time.

REQUEST NO. 13 — Reservation of Rights and Coverage Determinations

Produce all documents relating to any reservation of rights, coverage determination, coverage analysis, coverage opinion, denial of coverage, partial denial of coverage, or other coverage position taken by Montclair with respect to VHG's Claim under the Montclair Policy. This Request includes but is not limited to internal memoranda, coverage opinions prepared by in-house or outside counsel, letters to VHG or Tidewater communicating coverage positions, letters to or from Co-Defendants regarding coverage positions, board or committee reports, management reports, and any legal opinions or analyses received by Montclair from Delvecchio & Kraus LLP or any other law firm or coverage consultant regarding the Claim.

REQUEST NO. 14 — Reserve and Financial Analyses

Produce all documents relating to Montclair's establishment, adjustment, review, or calculation of loss reserves or case reserves for VHG's Claim, including but not limited to reserve worksheets, actuarial reports, reserve memoranda, incurred-loss calculations, reserve authority requests, reserve approval records, and any internal or external reports regarding the financial exposure of Montclair under the Montclair Policy for Hurricane Callista losses. This Request also includes any documents reflecting the impact of VHG's Claim on Montclair's aggregate reserves, catastrophe reserves, or financial statements.

REQUEST NO. 15 — Windstorm Sub-Limit Documents

Produce all documents relating to any named-windstorm sub-limit, windstorm sub-limit, or hurricane sub-limit in the Montclair Policy or the underlying Ironclad primary policy (policy number IIC-PRP-2022-07541), including but not limited to:

(a) all documents reflecting Montclair's understanding of whether such sub-limit was applicable to the second excess layer provided by the Montclair Policy;

(b) all documents relating to whether any windstorm sub-limit was deleted, modified, or amended at the July 2022 renewal;

(c) all Communications with Ironclad, Pinnacle, Tidewater, VHG, or any other party concerning the windstorm sub-limit, its applicability, its deletion, or its effect on coverage; and

(d) all underwriting notes, internal memoranda, or analyses reflecting Montclair's evaluation of the windstorm sub-limit issue at any time.

REQUEST NO. 16 — Follow-Form Provisions

Produce all documents relating to the follow-form provisions in the Montclair Policy, including but not limited to documents reflecting Montclair's understanding of the terms, conditions, exclusions, and endorsements of the underlying Ironclad primary policy (policy number IIC-PRP-2022-07541) and the Pinnacle first excess policy, and any analysis, opinion, or memorandum regarding how those underlying terms apply to or are incorporated into the Montclair second excess layer. This Request also includes any documents reflecting any differences between the Montclair Policy and the underlying policies, any "drop-down" provisions, and any analysis of whether the Montclair Policy independently provides coverage or merely follows the form of the underlying policies.

REQUEST NO. 17 — Flood Exclusion and Concurrent Causation

Produce all documents relating to the flood exclusion, storm-surge exclusion, water-damage exclusion, or anti-concurrent causation clause in the Montclair Policy or any underlying policy, including but not limited to any analysis, opinion, memorandum, or report regarding the applicability of such exclusions or clauses to VHG's Claim arising from Hurricane Callista. This Request encompasses any documents reflecting Montclair's assessment of the causes of damage to the Insured Properties, including the relative contribution of wind, flood, storm surge, and rain, and any documents relating to whether the anti-concurrent causation clause bars coverage for losses caused in part by excluded perils.

REQUEST NO. 18 — Period of Restoration

Produce all documents relating to the period-of-restoration provision in the Montclair Policy or any underlying policy, including but not limited to any analysis, evaluation, opinion, or calculation regarding the appropriate period of restoration for each of the Insured Properties and whether VHG allegedly delayed restoration of any of the Insured Properties. This Request includes any documents reflecting Montclair's position on when the period of restoration commenced and terminated for each Property, any comparison to industry benchmarks or comparable restoration timelines, and any Communications with Co-Defendants or their counsel regarding the period-of-restoration issue.

REQUEST NO. 19 — Failure to Mitigate

Produce all documents relating to any contention by Montclair that VHG failed to mitigate its business-interruption losses or property-damage losses at any of the Insured Properties, including but not limited to any investigation, analysis, evaluation, report, or Communication regarding VHG's mitigation efforts at the Verimark Grand Key Resort, the Verimark Harborview Hotel & Conference Center, or the Verimark Sunset Shores. This Request encompasses any documents reflecting Montclair's understanding of the steps taken by VHG to resume operations, the timeline for resumption, any alternative revenue sources available to VHG, and any alleged failures or delays attributable to VHG.

REQUEST NO. 20 — Damage Assessments and Loss Quantification

Produce all documents relating to Montclair's assessment, calculation, or quantification of VHG's business-interruption losses, property damage, extra expenses, or any other losses arising from Hurricane Callista, including but not limited to any internal analyses, spreadsheets, financial models, expert reports or opinions received by Montclair, and any documents reflecting Montclair's own estimate or calculation of VHG's covered or total losses under the Montclair Policy or the insurance tower as a whole. This Request also includes any documents comparing Montclair's loss estimate with VHG's claimed loss or with loss estimates prepared by Ironclad, Pinnacle, Arbor Claims, or any other party.

REQUEST NO. 21 — Expert Retention and Reports

Produce all documents relating to the retention, engagement, or consultation of any expert, consultant, or advisor by Montclair in connection with VHG's Claim or this action, including but not limited to engagement letters, retainer agreements, scope-of-work documents, reports, analyses, presentations, correspondence, invoices, and draft reports. This Request specifically includes, but is not limited to, documents relating to Graystone Consulting Group LLC (including Dr. Warren Birk) or any other expert, forensic accountant, meteorologist, engineer, or consultant retained by or on behalf of Montclair or the defense in connection with VHG's Claim. To the extent Montclair contends that any such documents are protected by the work-product doctrine, Montclair shall identify them on the privilege log required by Instruction 4.

REQUEST NO. 22 — Joint Defense or Common Interest Agreements

Produce all joint defense agreements, common-interest agreements, cooperation agreements, or similar arrangements entered into by Montclair with any Co-Defendant (Ironclad, Pinnacle, or Sovereign Re) or their respective counsel (Fendowell Rourke & Stanton LLP or Delvecchio & Kraus LLP) in connection with VHG's Claim or this action. This Request includes all executed agreements, draft agreements, term sheets, and any Communications relating to the negotiation, execution, or implementation of any such agreement.

REQUEST NO. 23 — Reinsurance

Produce all documents relating to any reinsurance, retrocession, or other risk-transfer arrangement applicable to Montclair's obligations under the Montclair Policy for VHG's Claim or for Hurricane Callista losses generally, including but not limited to:

(a) all treaty or facultative reinsurance certificates, contracts, or agreements applicable to the Montclair Policy;

(b) all Communications between Montclair and any reinsurer (including Sovereign Re or any other entity) relating to VHG's Claim, Hurricane Callista losses, or Montclair's coverage position;

(c) all reinsurance claim submissions, loss advices, proof-of-loss submissions, or reserve notifications made by Montclair to any reinsurer in connection with VHG's Claim; and

(d) all documents reflecting the terms, conditions, or limitations of any reinsurance arrangement that may affect Montclair's handling or payment of VHG's Claim.

REQUEST NO. 24 — Claims Handling Guidelines and Manuals

Produce all claims handling guidelines, procedures, manuals, directives, protocols, best practices documents, training materials, or standards applicable to Montclair's handling of VHG's Claim, including but not limited to any guidelines specific to hurricane or catastrophe claims, excess-layer or surplus-layer claims, business-interruption claims, follow-form policy claims, or claims involving multi-layered insurance programs. This Request includes any guidelines or directives issued by Montclair's management, claims department, or legal department regarding the handling of Hurricane Callista claims generally.

REQUEST NO. 25 — Corporate Representative Information

Produce all documents identifying the individuals at Montclair who had responsibility for or involvement in: (a) the underwriting of the Montclair Policy; (b) the handling, investigation, evaluation, or administration of VHG's Claim; (c) the decision to reserve rights, deny coverage, or take any coverage position with respect to VHG's Claim; and (d) any Communications with Co-Defendants or their counsel regarding the Claim, coverage strategy, or joint defense arrangements. This Request includes organizational charts, personnel assignments, authority-level documents, delegation-of-authority matrices, and any documents identifying supervisors, managers, or executives who reviewed or approved claim-handling decisions relating to VHG's Claim.

REQUEST NO. 26 — Regulatory Filings and Market Conduct

Produce all documents relating to any regulatory filing, market conduct inquiry, market conduct examination, complaint, investigation, enforcement action, consent order, or regulatory correspondence by any state insurance department, the National Association of Insurance Commissioners, or any other regulatory body relating to Montclair's handling of VHG's Claim or Montclair's handling of Hurricane Callista claims generally. This Request includes any documents filed by Montclair with the Florida Office of Insurance Regulation or the New York State Department of Financial Services in connection with Hurricane Callista.

REQUEST NO. 27 — Similar Claims and Prior Hurricanes

Produce all documents reflecting Montclair's coverage positions, claim-handling practices, or claims payment history for business-interruption claims arising from named hurricanes or windstorms in the five years preceding Hurricane Callista (2017–2022), to the extent such documents relate to the coverage issues in dispute in this action, including but not limited to the applicability of windstorm sub-limits, flood exclusions, anti-concurrent causation clauses, and period-of-restoration disputes. This Request is limited to documents that reflect Montclair's interpretation or application of policy provisions that are substantially similar to those at issue in the Montclair Policy, and is not intended to require production of entire claim files for unrelated claims.

REQUEST NO. 28 — Sworn Proof of Loss and Notice Documents

Produce all documents received by Montclair from VHG, Ironclad, Tidewater, Arbor Claims, or any other party constituting or relating to VHG's notice of loss (submitted on September 22, 2022), VHG's sworn statement in proof of loss (submitted on November 15, 2022, in the total amount of approximately $60,000,000), or any supplemental, amended, or revised proof of loss. This Request includes all cover letters, transmittal emails, acknowledgment letters, responses, and any internal documents reflecting Montclair's receipt, review, or evaluation of such notice and proof-of-loss submissions.

REQUEST NO. 29 — Attachment Point and Layer Erosion Analysis

Produce all documents relating to Montclair's analysis of whether VHG's losses would reach Montclair's attachment point of $40,000,000 (i.e., the aggregate of the $25,000,000 Ironclad primary layer and the $15,000,000 Pinnacle first excess layer), including but not limited to any analysis of the impact of the disputed $15,000,000 named-windstorm sub-limit on the erosion of the underlying layers and on Montclair's potential exposure under the Montclair Policy. This Request encompasses any internal memoranda, spreadsheets, models, correspondence, or analyses reflecting Montclair's assessment of whether, and to what extent, the underlying layers have been or will be exhausted, and any scenarios or alternative calculations considered by Montclair.

REQUEST NO. 30 — Property Inspection and Engineering Reports

Produce all property inspection reports, engineering reports, damage assessments, structural analyses, photographs, videos, drone footage, or other documentation relating to the physical condition of the Insured Properties before, during, or after Hurricane Callista that are in Montclair's possession, custody, or control, including but not limited to any reports received from Arbor Claims Services LLC, Caldwell Engineering Associates Inc., or any other inspection, engineering, or environmental firm. This Request encompasses pre-loss inspection reports, post-loss damage surveys, repair estimates, scope-of-repair documents, and any documents reflecting the extent and nature of damage at each of the three Insured Properties.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff's First Request for Production of Documents to Defendant Montclair Assurance Company was served on June 10, 2023, via electronic filing through the Florida Courts E-Filing Portal and by email upon the following counsel of record:

Patricia Kraus, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, New York 10022 Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.

Gregory Stanton, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, Connecticut 06103 Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.

CALDERWOOD & HARKNESS LLP Attorneys for Plaintiff Verimark Hospitality Group Inc. 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 555-7200 Facsimile: (305) 555-7201

By: ________

Elaine Forsythe, Esq. Florida Bar No. 0987654

Email: eforsythe@calderwoodharkness.com

By: ________

Tiffany Rosenthal, Esq. Florida Bar No. 1123581

Email: trosenthal@calderwoodharkness.com

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.
________/
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT MONTCLAIR ASSURANCE COMPANY
Plaintiff Verimark Hospitality Group Inc. ("VHG" or "Plaintiff"), by and through its undersigned counsel, Calderwood & Harkness LLP, pursuant to Florida Rule of Civil Procedure 1.350, hereby requests that Defendant Montclair Assurance Company ("Montclair") produce the documents and electronically stored information ("ESI") described in the Document Requests set forth below for inspection and copying. Montclair shall produce all responsive documents within thirty (30) days of service of this Request at the offices of Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, Florida 33131, or at such other location as the parties may agree in writing. This Request is served on June 10, 2023.
DEFINITIONS
As used in this Request, the following terms shall have the meanings set forth below:
1. "Plaintiff" or "VHG" shall mean Verimark Hospitality Group Inc., a Delaware corporation, including its officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, and successors. The term specifically includes, but is not limited to, Marcus Ellsworth (Chief Executive Officer), Diane Calder (Chief Financial Officer), Nathaniel Driscoll (General Counsel), and Sandra Pellegrini (Vice President, Risk Management).
2. "Montclair" or "You" / "Your" shall mean Montclair Assurance Company, a New York-domiciled admitted insurance carrier with principal offices at 1 Liberty Plaza, 38th Floor, New York, New York 10006, and all of its officers, directors, employees, agents, adjusters, representatives, subsidiaries, affiliates, predecessors, and successors. The term includes any division, department, or unit of Montclair involved in the underwriting, issuance, or claims administration of the Montclair Policy, as well as any third-party administrator acting on Montclair's behalf.
3. "Ironclad" shall mean Ironclad Indemnity Corporation, a Connecticut-domiciled stock insurance company with principal offices at 55 Constitution Boulevard, Hartford, Connecticut 06103, including its officers, directors, employees, agents, adjusters, and representatives.
4. "Pinnacle" shall mean Pinnacle Surplus Lines Inc., a Texas-domiciled surplus-lines insurer with principal offices at 200 Congress Avenue, Suite 1400, Austin, Texas 78701, including its officers, directors, employees, agents, adjusters, and representatives.
5. "Sovereign Re" shall mean Sovereign Re Ltd., a Bermuda-domiciled excess and reinsurance carrier with principal offices at 14 Front Street, Hamilton HM 11, Bermuda, including its officers, directors, employees, agents, adjusters, and representatives.
6. "Co-Defendants" shall mean, collectively, Ironclad Indemnity Corporation, Pinnacle Surplus Lines Inc., and Sovereign Re Ltd.
7. "Montclair Policy" or "Policy" shall mean the second excess layer insurance policy issued by Montclair to VHG bearing policy number MAC-XS2-2022-09817, for the policy period July 1, 2022 through July 1, 2023, providing $10,000,000 in coverage excess of $40,000,000 (comprised of a $25,000,000 primary layer and a $15,000,000 first excess layer). The term includes all endorsements, amendments, riders, binders, declarations pages, certificates of insurance, and any other documents forming part of or attached to the policy contract.
8. "Hurricane Callista" or "the Loss" shall mean Hurricane Callista, a Category 4 hurricane that made landfall on September 18, 2022, in the Lower Florida Keys, and all resulting damage, losses, business interruption, extra expenses, and related consequences sustained by VHG at or in connection with the Insured Properties.
9. "Insured Properties" or "Properties" shall mean the three VHG-owned resort properties affected by Hurricane Callista, specifically:
(a) Verimark Grand Key Resort, Mile Marker 48, Marathon, Florida 33050;
(b) Verimark Harborview Hotel & Conference Center, 1400 Estero Boulevard, Fort Myers Beach, Florida 33931; and
(c) Verimark Sunset Shores, 7200 Gulf Boulevard, St. Pete Beach, Florida 33706.
10. "Claim" shall mean VHG's claim for business-interruption and property-damage losses arising from Hurricane Callista, including the notice of loss submitted on September 22, 2022, the sworn statement in proof of loss submitted on November 15, 2022, and all related submissions, supplements, amendments, and correspondence, in the total amount of approximately $60,000,000.
11. "Tidewater" shall mean Tidewater Risk Advisors LLC, VHG's insurance broker of record, with principal offices at 2600 S. Bayshore Drive, Suite 800, Miami, Florida 33133, including its employees, agents, and representatives. The term specifically includes, but is not limited to, Franklin Orde, Account Executive.
12. "Arbor Claims" shall mean Arbor Claims Services LLC, the independent adjusting firm retained by Ironclad in connection with VHG's Claim, with principal offices at 3300 W. Cypress Street, Suite 400, Tampa, Florida 33607, including its employees, agents, and representatives. The term specifically includes, but is not limited to, Denise Whitford, Lead Independent Adjuster.
13. "Delvecchio & Kraus" shall mean Delvecchio & Kraus LLP, counsel for Montclair Assurance Company and Sovereign Re Ltd. in this action, with offices at 425 Park Avenue, 20th Floor, New York, New York 10022.
14. "Fendowell Rourke" shall mean Fendowell Rourke & Stanton LLP, counsel for Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc. in this action, with offices at 280 Trumbull Street, Suite 2200, Hartford, Connecticut 06103, and 101 E. Kennedy Boulevard, Suite 3900, Tampa, Florida 33602.
15. "Document(s)" shall be given the broadest definition permitted under the Florida Rules of Civil Procedure, including all writings, recordings, photographs, electronically stored information, emails, text messages, instant messages, memoranda, reports, correspondence, letters, notes, presentations, spreadsheets, databases, ledgers, logs, calendars, schedules, handwritten notes, drafts, audio or video recordings, and all other tangible things, whether in paper or electronic form, regardless of the medium on which they are stored.
16. "Communication(s)" shall mean every manner or means of exchange of information between two or more persons, whether oral, written, or electronic, including but not limited to letters, emails, text messages, instant messages, facsimiles, telephone calls, voicemails, video conferences, web conferences, in-person discussions, and any other method of transmitting information.
17. "Relating to" or "Concerning" shall mean referring to, regarding, describing, evidencing, constituting, mentioning, reflecting, pertaining to, connected with, commenting on, responsive to, or having any logical relationship to the subject matter referenced in the applicable Request.
18. "Identify" (as to a document) shall mean to state the date of the document, the author or sender, the recipient(s), the subject matter, the type of document (e.g., letter, memorandum, email, report), and the present custodian or location of the document.
INSTRUCTIONS
The following Instructions apply to each Document Request set forth below:
Instruction 1 — Scope of Production. Montclair shall produce all responsive documents in its possession, custody, or control, including documents held by its agents, attorneys (subject to any valid claim of privilege), consultants, experts, independent adjusters, accountants, and representatives. Documents are deemed to be in Montclair's "possession, custody, or control" if Montclair has the right or practical ability to obtain them from a third party, including but not limited to Delvecchio & Kraus LLP, Arbor Claims Services LLC, Graystone Consulting Group LLC, and any reinsurer.
Instruction 2 — Time Period. Unless otherwise specified in a particular Request, the time period covered by these Requests is July 1, 2021 through the date of Montclair's production. Documents created or received outside this time period should nonetheless be produced if they are responsive to a specific Request that does not contain a temporal limitation.
Instruction 3 — Format of Production. Documents maintained in electronic form shall be produced in their native electronic format, preserving all metadata (including author, date created, date modified, and custodian information). Hard-copy documents shall be produced as image files (TIFF or PDF format) with searchable OCR text layers and any associated metadata. Emails shall be produced in their native format (e.g., .msg or .eml) with all attachments. ESI shall be produced in accordance with Florida Rule of Civil Procedure 1.350 and any applicable case management order entered in this action. Where documents are maintained in a database or structured data format, they shall be produced in a reasonably usable format, such as delimited text files, with a data dictionary explaining each field.
Instruction 4 — Privilege Log. To the extent any responsive document is withheld in whole or in part on the basis of the attorney-client privilege, work-product doctrine, or any other applicable privilege or protection, Montclair shall provide 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 detail to enable VHG and the Court to assess the applicability of the claimed privilege, including, at a minimum: (a) the date of the document; (b) the author or sender; (c) all recipients and persons copied; (d) a general description of the subject matter of the document; (e) the type of document (e.g., email, memorandum, letter); and (f) the specific privilege or protection asserted.
Instruction 5 — Continuing Obligation. These Requests impose a continuing obligation on Montclair to supplement its production if additional responsive documents are identified, located, or come into Montclair's possession, custody, or control after the date of the initial production. Supplemental production shall be made promptly and in any event within fifteen (15) days of Montclair's identification of any additional responsive documents.
Instruction 6 — Document Preservation. Montclair shall not destroy, alter, conceal, or otherwise dispose of any document responsive to these Requests. This instruction supplements and does not replace any independent obligation Montclair may have under applicable law, court order, or the parties' agreed-upon litigation hold to preserve relevant documents and ESI.
DOCUMENT REQUESTS
REQUEST NO. 1 — Complete Claim File
Produce the complete claim file maintained by Montclair relating to VHG's Claim under the Montclair Policy (policy number MAC-XS2-2022-09817) arising from Hurricane Callista, including but not limited to all internal memoranda, reports, notes, evaluations, reserve analyses, coverage opinions, claim diaries, claim logs, diary entries, activity logs, telephone logs, task assignments, supervisor reviews, authority requests, payment records, and any other documents reflecting Montclair's investigation, evaluation, handling, administration, or disposition of the Claim. This Request encompasses all documents maintained in any claims management system, database, or electronic platform used by Montclair, including but not limited to any entries in Montclair's electronic claim file system.
REQUEST NO. 2 — The Montclair Policy and All Policy Forms
Produce a complete, certified copy of the Montclair Policy, policy number MAC-XS2-2022-09817, including all declarations pages, coverage forms, coverage parts, conditions, definitions sections, endorsements, amendments, riders, binders, certificates of insurance, schedules of underlying insurance, and any other documents constituting the insurance contract between Montclair and VHG for the policy period July 1, 2022 through July 1, 2023. If any policy form or endorsement was issued, modified, or amended at any time during the policy period, produce all versions of such form or endorsement.
REQUEST NO. 3 — Underwriting File
Produce the complete underwriting file for the Montclair Policy, including but not limited to all applications, submissions, proposals, quotes, binders, underwriting worksheets, risk assessments, risk surveys, actuarial analyses, loss histories, premium calculations, premium allocation documents, pricing models, reinsurance information, underwriting authority documentation, and all Communications with or received from Tidewater Risk Advisors LLC (including Franklin Orde), Ironclad, Pinnacle, or any other party relating to the underwriting, pricing, binding, or issuance of the Montclair Policy. This Request also encompasses any documents reflecting Montclair's evaluation of the Insured Properties, including property schedules, total insurable value calculations, and catastrophe modeling results.
REQUEST NO. 4 — Prior Policy Years
Produce all policies, endorsements, binders, declarations pages, and underwriting files for any insurance policies issued by Montclair to VHG for any policy period prior to the current Montclair Policy, including the immediately preceding policy year (July 1, 2021 through July 1, 2022), to the extent such documents relate to the coverage terms, sub-limits, exclusions, endorsements, or conditions at issue in this action, including but not limited to any named-windstorm sub-limit, flood exclusion, anti-concurrent causation clause, or period-of-restoration provision. This Request is intended to permit comparison of the prior-year policy terms with the current Montclair Policy terms.
REQUEST NO. 5 — Communications with VHG
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and VHG (including VHG's officers, directors, employees, and agents, specifically including Sandra Pellegrini and Nathaniel Driscoll) relating to the Claim, the Insured Properties, Hurricane Callista, or the Montclair Policy. This Request includes but is not limited to all correspondence, emails, letters, notices, telephone records, and meeting notes exchanged between Montclair and VHG at any time from September 18, 2022 through the date of production.
REQUEST NO. 6 — Communications with Tidewater Risk Advisors
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Tidewater Risk Advisors LLC (including Franklin Orde and any other Tidewater employee, agent, or representative) relating to the placement, underwriting, binding, renewal, or terms of the Montclair Policy, or relating to VHG's Claim, the Insured Properties, Hurricane Callista, or any coverage issue arising under the Montclair Policy or the underlying policies. This Request encompasses Communications from the initial placement of the Montclair Policy through the date of production.
REQUEST NO. 7 — Communications with Ironclad Indemnity Corporation
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Ironclad Indemnity Corporation (including Victor Haddon and any other Ironclad officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or the coverage positions taken by any insurer in connection with the Claim. This Request includes but is not limited to any joint defense communications, coverage strategy discussions, claim-handling coordination, reserve discussions, loss quantification exchanges, and any agreements or understandings regarding the allocation of losses among the tower of insurance.
REQUEST NO. 8 — Communications with Pinnacle Surplus Lines Inc.
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Pinnacle Surplus Lines Inc. (including any Pinnacle officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, the coverage positions of any insurer in the insurance tower, or any joint defense, claim coordination, or cooperation arrangement between Montclair and Pinnacle.
REQUEST NO. 9 — Communications with Sovereign Re Ltd.
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Sovereign Re Ltd. (including any Sovereign Re officer, employee, adjuster, or representative) relating to VHG's Claim, the Insured Properties, Hurricane Callista, coverage positions, joint defense arrangements, common-interest agreements, reserve analyses, reinsurance, or any other matter relating to this action or the coverage dispute between VHG and Montclair.
REQUEST NO. 10 — Communications with Fendowell Rourke & Stanton LLP
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Fendowell Rourke & Stanton LLP (including Gregory Stanton, Meredith Liang, Colin Ashford, and any other attorney or staff member of that firm) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or the coverage or defense of this action, to the extent such Communications are not protected by a valid, applicable privilege. To the extent any such Communication is withheld on the basis of privilege, it shall be identified on the privilege log required by Instruction 4.
REQUEST NO. 11 — Communications with Delvecchio & Kraus LLP (Subject to Privilege)
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Delvecchio & Kraus LLP (including Patricia Kraus, Raymond Cho, and any other attorney or staff member of that firm) relating to VHG's Claim, the Insured Properties, Hurricane Callista, or this action. To the extent Montclair asserts the attorney-client privilege, work-product doctrine, or any other privilege or protection over any such Communications, Montclair shall provide a privilege log identifying each withheld document with sufficient detail to enable VHG and the Court to evaluate the applicability of the claimed privilege, as specified in Instruction 4.
REQUEST NO. 12 — Communications with Arbor Claims Services LLC
Produce all Communications between Montclair (including any Montclair officer, director, employee, agent, adjuster, or representative) and Arbor Claims Services LLC (including Denise Whitford and any other Arbor Claims employee, agent, or representative) relating to VHG's Claim, the inspection of the Insured Properties, the assessment of damages, loss quantification, business-interruption analysis, or any other matter relating to Hurricane Callista or the claims-adjustment process for VHG's Claim. This Request encompasses all correspondence, emails, reports, memoranda, and telephone logs exchanged between Montclair and Arbor Claims at any time.
REQUEST NO. 13 — Reservation of Rights and Coverage Determinations
Produce all documents relating to any reservation of rights, coverage determination, coverage analysis, coverage opinion, denial of coverage, partial denial of coverage, or other coverage position taken by Montclair with respect to VHG's Claim under the Montclair Policy. This Request includes but is not limited to internal memoranda, coverage opinions prepared by in-house or outside counsel, letters to VHG or Tidewater communicating coverage positions, letters to or from Co-Defendants regarding coverage positions, board or committee reports, management reports, and any legal opinions or analyses received by Montclair from Delvecchio & Kraus LLP or any other law firm or coverage consultant regarding the Claim.
REQUEST NO. 14 — Reserve and Financial Analyses
Produce all documents relating to Montclair's establishment, adjustment, review, or calculation of loss reserves or case reserves for VHG's Claim, including but not limited to reserve worksheets, actuarial reports, reserve memoranda, incurred-loss calculations, reserve authority requests, reserve approval records, and any internal or external reports regarding the financial exposure of Montclair under the Montclair Policy for Hurricane Callista losses. This Request also includes any documents reflecting the impact of VHG's Claim on Montclair's aggregate reserves, catastrophe reserves, or financial statements.
REQUEST NO. 15 — Windstorm Sub-Limit Documents
Produce all documents relating to any named-windstorm sub-limit, windstorm sub-limit, or hurricane sub-limit in the Montclair Policy or the underlying Ironclad primary policy (policy number IIC-PRP-2022-07541), including but not limited to:
(a) all documents reflecting Montclair's understanding of whether such sub-limit was applicable to the second excess layer provided by the Montclair Policy;
(b) all documents relating to whether any windstorm sub-limit was deleted, modified, or amended at the July 2022 renewal;
(c) all Communications with Ironclad, Pinnacle, Tidewater, VHG, or any other party concerning the windstorm sub-limit, its applicability, its deletion, or its effect on coverage; and
(d) all underwriting notes, internal memoranda, or analyses reflecting Montclair's evaluation of the windstorm sub-limit issue at any time.
REQUEST NO. 16 — Follow-Form Provisions
Produce all documents relating to the follow-form provisions in the Montclair Policy, including but not limited to documents reflecting Montclair's understanding of the terms, conditions, exclusions, and endorsements of the underlying Ironclad primary policy (policy number IIC-PRP-2022-07541) and the Pinnacle first excess policy, and any analysis, opinion, or memorandum regarding how those underlying terms apply to or are incorporated into the Montclair second excess layer. This Request also includes any documents reflecting any differences between the Montclair Policy and the underlying policies, any "drop-down" provisions, and any analysis of whether the Montclair Policy independently provides coverage or merely follows the form of the underlying policies.
REQUEST NO. 17 — Flood Exclusion and Concurrent Causation
Produce all documents relating to the flood exclusion, storm-surge exclusion, water-damage exclusion, or anti-concurrent causation clause in the Montclair Policy or any underlying policy, including but not limited to any analysis, opinion, memorandum, or report regarding the applicability of such exclusions or clauses to VHG's Claim arising from Hurricane Callista. This Request encompasses any documents reflecting Montclair's assessment of the causes of damage to the Insured Properties, including the relative contribution of wind, flood, storm surge, and rain, and any documents relating to whether the anti-concurrent causation clause bars coverage for losses caused in part by excluded perils.
REQUEST NO. 18 — Period of Restoration
Produce all documents relating to the period-of-restoration provision in the Montclair Policy or any underlying policy, including but not limited to any analysis, evaluation, opinion, or calculation regarding the appropriate period of restoration for each of the Insured Properties and whether VHG allegedly delayed restoration of any of the Insured Properties. This Request includes any documents reflecting Montclair's position on when the period of restoration commenced and terminated for each Property, any comparison to industry benchmarks or comparable restoration timelines, and any Communications with Co-Defendants or their counsel regarding the period-of-restoration issue.
REQUEST NO. 19 — Failure to Mitigate
Produce all documents relating to any contention by Montclair that VHG failed to mitigate its business-interruption losses or property-damage losses at any of the Insured Properties, including but not limited to any investigation, analysis, evaluation, report, or Communication regarding VHG's mitigation efforts at the Verimark Grand Key Resort, the Verimark Harborview Hotel & Conference Center, or the Verimark Sunset Shores. This Request encompasses any documents reflecting Montclair's understanding of the steps taken by VHG to resume operations, the timeline for resumption, any alternative revenue sources available to VHG, and any alleged failures or delays attributable to VHG.
REQUEST NO. 20 — Damage Assessments and Loss Quantification
Produce all documents relating to Montclair's assessment, calculation, or quantification of VHG's business-interruption losses, property damage, extra expenses, or any other losses arising from Hurricane Callista, including but not limited to any internal analyses, spreadsheets, financial models, expert reports or opinions received by Montclair, and any documents reflecting Montclair's own estimate or calculation of VHG's covered or total losses under the Montclair Policy or the insurance tower as a whole. This Request also includes any documents comparing Montclair's loss estimate with VHG's claimed loss or with loss estimates prepared by Ironclad, Pinnacle, Arbor Claims, or any other party.
REQUEST NO. 21 — Expert Retention and Reports
Produce all documents relating to the retention, engagement, or consultation of any expert, consultant, or advisor by Montclair in connection with VHG's Claim or this action, including but not limited to engagement letters, retainer agreements, scope-of-work documents, reports, analyses, presentations, correspondence, invoices, and draft reports. This Request specifically includes, but is not limited to, documents relating to Graystone Consulting Group LLC (including Dr. Warren Birk) or any other expert, forensic accountant, meteorologist, engineer, or consultant retained by or on behalf of Montclair or the defense in connection with VHG's Claim. To the extent Montclair contends that any such documents are protected by the work-product doctrine, Montclair shall identify them on the privilege log required by Instruction 4.
REQUEST NO. 22 — Joint Defense or Common Interest Agreements
Produce all joint defense agreements, common-interest agreements, cooperation agreements, or similar arrangements entered into by Montclair with any Co-Defendant (Ironclad, Pinnacle, or Sovereign Re) or their respective counsel (Fendowell Rourke & Stanton LLP or Delvecchio & Kraus LLP) in connection with VHG's Claim or this action. This Request includes all executed agreements, draft agreements, term sheets, and any Communications relating to the negotiation, execution, or implementation of any such agreement.
REQUEST NO. 23 — Reinsurance
Produce all documents relating to any reinsurance, retrocession, or other risk-transfer arrangement applicable to Montclair's obligations under the Montclair Policy for VHG's Claim or for Hurricane Callista losses generally, including but not limited to:
(a) all treaty or facultative reinsurance certificates, contracts, or agreements applicable to the Montclair Policy;
(b) all Communications between Montclair and any reinsurer (including Sovereign Re or any other entity) relating to VHG's Claim, Hurricane Callista losses, or Montclair's coverage position;
(c) all reinsurance claim submissions, loss advices, proof-of-loss submissions, or reserve notifications made by Montclair to any reinsurer in connection with VHG's Claim; and
(d) all documents reflecting the terms, conditions, or limitations of any reinsurance arrangement that may affect Montclair's handling or payment of VHG's Claim.
REQUEST NO. 24 — Claims Handling Guidelines and Manuals
Produce all claims handling guidelines, procedures, manuals, directives, protocols, best practices documents, training materials, or standards applicable to Montclair's handling of VHG's Claim, including but not limited to any guidelines specific to hurricane or catastrophe claims, excess-layer or surplus-layer claims, business-interruption claims, follow-form policy claims, or claims involving multi-layered insurance programs. This Request includes any guidelines or directives issued by Montclair's management, claims department, or legal department regarding the handling of Hurricane Callista claims generally.
REQUEST NO. 25 — Corporate Representative Information
Produce all documents identifying the individuals at Montclair who had responsibility for or involvement in: (a) the underwriting of the Montclair Policy; (b) the handling, investigation, evaluation, or administration of VHG's Claim; (c) the decision to reserve rights, deny coverage, or take any coverage position with respect to VHG's Claim; and (d) any Communications with Co-Defendants or their counsel regarding the Claim, coverage strategy, or joint defense arrangements. This Request includes organizational charts, personnel assignments, authority-level documents, delegation-of-authority matrices, and any documents identifying supervisors, managers, or executives who reviewed or approved claim-handling decisions relating to VHG's Claim.
REQUEST NO. 26 — Regulatory Filings and Market Conduct
Produce all documents relating to any regulatory filing, market conduct inquiry, market conduct examination, complaint, investigation, enforcement action, consent order, or regulatory correspondence by any state insurance department, the National Association of Insurance Commissioners, or any other regulatory body relating to Montclair's handling of VHG's Claim or Montclair's handling of Hurricane Callista claims generally. This Request includes any documents filed by Montclair with the Florida Office of Insurance Regulation or the New York State Department of Financial Services in connection with Hurricane Callista.
REQUEST NO. 27 — Similar Claims and Prior Hurricanes
Produce all documents reflecting Montclair's coverage positions, claim-handling practices, or claims payment history for business-interruption claims arising from named hurricanes or windstorms in the five years preceding Hurricane Callista (2017–2022), to the extent such documents relate to the coverage issues in dispute in this action, including but not limited to the applicability of windstorm sub-limits, flood exclusions, anti-concurrent causation clauses, and period-of-restoration disputes. This Request is limited to documents that reflect Montclair's interpretation or application of policy provisions that are substantially similar to those at issue in the Montclair Policy, and is not intended to require production of entire claim files for unrelated claims.
REQUEST NO. 28 — Sworn Proof of Loss and Notice Documents
Produce all documents received by Montclair from VHG, Ironclad, Tidewater, Arbor Claims, or any other party constituting or relating to VHG's notice of loss (submitted on September 22, 2022), VHG's sworn statement in proof of loss (submitted on November 15, 2022, in the total amount of approximately $60,000,000), or any supplemental, amended, or revised proof of loss. This Request includes all cover letters, transmittal emails, acknowledgment letters, responses, and any internal documents reflecting Montclair's receipt, review, or evaluation of such notice and proof-of-loss submissions.
REQUEST NO. 29 — Attachment Point and Layer Erosion Analysis
Produce all documents relating to Montclair's analysis of whether VHG's losses would reach Montclair's attachment point of $40,000,000 (i.e., the aggregate of the $25,000,000 Ironclad primary layer and the $15,000,000 Pinnacle first excess layer), including but not limited to any analysis of the impact of the disputed $15,000,000 named-windstorm sub-limit on the erosion of the underlying layers and on Montclair's potential exposure under the Montclair Policy. This Request encompasses any internal memoranda, spreadsheets, models, correspondence, or analyses reflecting Montclair's assessment of whether, and to what extent, the underlying layers have been or will be exhausted, and any scenarios or alternative calculations considered by Montclair.
REQUEST NO. 30 — Property Inspection and Engineering Reports
Produce all property inspection reports, engineering reports, damage assessments, structural analyses, photographs, videos, drone footage, or other documentation relating to the physical condition of the Insured Properties before, during, or after Hurricane Callista that are in Montclair's possession, custody, or control, including but not limited to any reports received from Arbor Claims Services LLC, Caldwell Engineering Associates Inc., or any other inspection, engineering, or environmental firm. This Request encompasses pre-loss inspection reports, post-loss damage surveys, repair estimates, scope-of-repair documents, and any documents reflecting the extent and nature of damage at each of the three Insured Properties.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff's First Request for Production of Documents to Defendant Montclair Assurance Company was served on June 10, 2023, via electronic filing through the Florida Courts E-Filing Portal and by email upon the following counsel of record:
Patricia Kraus, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, New York 10022 Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.
Gregory Stanton, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, Connecticut 06103 Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.
CALDERWOOD & HARKNESS LLP Attorneys for Plaintiff Verimark Hospitality Group Inc. 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 555-7200 Facsimile: (305) 555-7201
By: ________
Elaine Forsythe, Esq. Florida Bar No. 0987654
Email: eforsythe@calderwoodharkness.com
By: ________
Tiffany Rosenthal, Esq. Florida Bar No. 1123581
Email: trosenthal@calderwoodharkness.com

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CIVIL DIVISION

DEFINITIONS

INSTRUCTIONS

DOCUMENT REQUESTS

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts