IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
Case No. 2022-CA-031547 Division: Civil — 05 Presiding Judge: Hon. Catherine Embry
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
IRONCLAD INDEMNITY CORPORATION, a Connecticut corporation; PINNACLE SURPLUS LINES INC., a Texas corporation; MONTCLAIR ASSURANCE COMPANY, a New York corporation; and SOVEREIGN RE LTD., a Bermuda corporation,
Defendants.
SUBPOENA DUCES TECUM DIRECTED TO NONPARTY TIDEWATER RISK ADVISORS LLC
I. SUBPOENA COMMAND
TO: Tidewater Risk Advisors LLC
ATTENTION: Franklin Orde, Account Executive
ADDRESS: 2600 S. Bayshore Drive, Suite 800, Miami, FL 33133
ISSUED BY: Calderwood & Harkness LLP, counsel for Plaintiff Verimark Hospitality Group Inc.
ISSUED PURSUANT TO: Florida Rule of Civil Procedure 1.351 (Production of Documents and Things Without Deposition by Subpoena Directed to a Nonparty) and Section 48.031, Florida Statutes (Service of Process)
DATE OF ISSUANCE: June 20, 2023
DATE FOR COMPLIANCE / PRODUCTION: July 10, 2023 (twenty (20) days from service, consistent with the time periods prescribed by the Florida Rules of Civil Procedure)
PLACE FOR PRODUCTION: Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, FL 33131, Attention: Tiffany Rosenthal; or, alternatively, documents may be produced electronically to counsel via a secure file-transfer link to be provided upon request.
YOU ARE HEREBY COMMANDED, pursuant to Florida Rule of Civil Procedure 1.351 and the authority of the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, to produce the documents and things described in the attached Schedule A at the time and place specified above, or to mail legible copies of such documents and things to the issuing attorney at the address stated above on or before the date for production. This subpoena does not require you to appear for deposition; it requires only the production of the documents and things described herein.
FAILURE TO COMPLY with this subpoena may subject you to sanctions by the Court, including but not limited to a finding of contempt of court, pursuant to applicable provisions of Florida law.
PLEASE TAKE NOTICE that, pursuant to Florida Rule of Civil Procedure 1.351(b), the person on whom this subpoena is served may file a motion for a protective order or may object to the subpoena within the time permitted by the Florida Rules of Civil Procedure. Any such objection must be served in writing upon the attorney issuing this subpoena at the address stated above.
II. IDENTIFICATION OF ACTION AND PARTIES
This subpoena duces tecum is issued in connection with the above-captioned civil action currently pending before the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Miami-Dade County, bearing Case No. 2022-CA-031547, and assigned to the Honorable Catherine Embry.
Nature of the Action. This action is a business-interruption insurance coverage dispute arising from Hurricane Callista, a Category 4 hurricane that made landfall on September 18, 2022 in the Lower Florida Keys (Big Pine Key area), with maximum sustained winds of approximately 145 miles per hour and storm surge of eight (8) to fourteen (14) feet in Monroe County and six (6) to ten (10) feet in Lee County. The Plaintiff, Verimark Hospitality Group Inc. ("VHG"), seeks declaratory relief and damages for breach of contract, bad faith, and related claims in connection with the Defendants' denial and underpayment of approximately Sixty Million Dollars ($60,000,000) in claimed business-interruption and property-damage losses sustained at three resort properties owned and operated by VHG along the Gulf Coast of Florida.
Plaintiff. Verimark Hospitality Group Inc. is a Delaware corporation publicly traded on the Nasdaq Stock Market under the ticker symbol "VMRK," with its principal executive offices located at 1900 Brickell Avenue, Suite 3200, Miami, Florida 33129. VHG is engaged in the ownership, development, and management of resort and hospitality properties throughout the southeastern United States and the Caribbean.
Defendants. The Defendants in the underlying action are the four insurers that comprise the layered property and business-interruption insurance program procured by VHG for the policy period July 1, 2022 through July 1, 2023:
(a) Ironclad Indemnity Corporation, a Connecticut corporation, which served as VHG's primary property and business-interruption insurer under Policy No. IIC-PRP-2022-07541, providing Twenty-Five Million Dollars ($25,000,000) in coverage, subject to a Five Hundred Thousand Dollar ($500,000) deductible;
(b) Pinnacle Surplus Lines Inc., a Texas corporation, which served as the first excess insurer under Policy No. PSL-XS1-2022-3390, providing Fifteen Million Dollars ($15,000,000) in excess coverage above the Ironclad primary layer (excess of $25,000,000);
(c) Montclair Assurance Company, a New York corporation, which served as the second excess insurer under Policy No. MAC-XS2-2022-09817, providing Ten Million Dollars ($10,000,000) in excess coverage above the combined Ironclad and Pinnacle layers (excess of $40,000,000); and
(d) Sovereign Re Ltd., a Bermuda corporation, which served as the third excess insurer under Policy No. SRL-XS3-2022-5102, providing Ten Million Dollars ($10,000,000) in excess coverage above the combined Ironclad, Pinnacle, and Montclair layers (excess of $50,000,000).
Relationship of Subpoena Recipient. Tidewater Risk Advisors LLC ("Tidewater") served as VHG's insurance broker of record for the property and business-interruption insurance program at issue in this litigation. In that capacity, Tidewater was responsible for the placement, marketing, negotiation, and renewal of VHG's property and business-interruption insurance policies across all four layers of the insurance program, including but not limited to the policies in effect for the July 1, 2022 through July 1, 2023 policy period. Tidewater, through its account executive Franklin Orde, served as the principal intermediary between VHG and the defendant insurers in connection with the procurement of coverage terms, the negotiation of policy provisions (including but not limited to the named-windstorm sub-limit that is a central issue in this litigation), and the submission and handling of VHG's Hurricane Callista claim. Tidewater is not a party to this action but possesses documents and information directly relevant to the claims and defenses at issue.
III. DEFINITIONS AND INSTRUCTIONS
A. Definitions. As used in this subpoena and in the attached Schedule A, the following terms shall have the meanings set forth below:
1. "You," "Your," or "Tidewater" means and refers to Tidewater Risk Advisors LLC, together with its current and former officers, directors, members, managers, employees, agents, representatives, predecessors, successors, and assigns, including but not limited to Franklin Orde, Account Executive, and any other person who acted on behalf of Tidewater in connection with the VHG account or any matter described in this subpoena.
2. "VHG" or "Verimark" means and refers to Verimark Hospitality Group Inc., including its subsidiaries, affiliates, parent companies, officers, directors, employees, and agents, including but not limited to Marcus Ellsworth (Chief Executive Officer), Diane Calder (Chief Financial Officer), Nathaniel Driscoll (General Counsel), and Sandra Pellegrini (Vice President, Risk Management), and any other person who acted on behalf of VHG in connection with the insurance program at issue or any matter described in this subpoena.
3. "Ironclad" means and refers to Ironclad Indemnity Corporation, together with its current and former officers, directors, employees, agents, underwriters, adjusters, claims handlers, and representatives, including but not limited to Victor Haddon (Senior Vice President, Claims), and any other person who acted on behalf of Ironclad in connection with the VHG insurance program or the Hurricane Callista claim.
4. "Pinnacle" means and refers to Pinnacle Surplus Lines Inc., together with its current and former officers, directors, employees, agents, underwriters, and representatives.
5. "Montclair" means and refers to Montclair Assurance Company, together with its current and former officers, directors, employees, agents, underwriters, and representatives.
6. "Sovereign Re" means and refers to Sovereign Re Ltd., together with its current and former officers, directors, employees, agents, underwriters, and representatives.
7. "Arbor Claims" means and refers to Arbor Claims Services LLC, the independent adjusting firm retained in connection with the Hurricane Callista claim, including its current and former employees, agents, and representatives, including but not limited to Denise Whitford (Lead Independent Adjuster).
8. "Policies" or "Insurance Program" means and refers to the property and business-interruption insurance policies placed by Tidewater on behalf of VHG for any policy period from July 1, 2020 through July 1, 2023, including but not limited to:
(a) Ironclad Indemnity Corporation primary property and business-interruption policy, Policy No. IIC-PRP-2022-07541, with a per-occurrence limit of Twenty-Five Million Dollars ($25,000,000) and a deductible of Five Hundred Thousand Dollars ($500,000);
(b) Pinnacle Surplus Lines Inc. first excess property and business-interruption policy, Policy No. PSL-XS1-2022-3390, with a per-occurrence limit of Fifteen Million Dollars ($15,000,000) excess of Twenty-Five Million Dollars ($25,000,000);
(c) Montclair Assurance Company second excess property and business-interruption policy, Policy No. MAC-XS2-2022-09817, with a per-occurrence limit of Ten Million Dollars ($10,000,000) excess of Forty Million Dollars ($40,000,000); and
(d) Sovereign Re Ltd. third excess property and business-interruption policy, Policy No. SRL-XS3-2022-5102, with a per-occurrence limit of Ten Million Dollars ($10,000,000) excess of Fifty Million Dollars ($50,000,000);
together with all predecessor policies for the July 1, 2020 through July 1, 2021 and July 1, 2021 through July 1, 2022 policy periods, including any renewal, replacement, or successor policies, and all endorsements, riders, amendments, declarations pages, schedules, and supplements thereto.
9. "Windstorm Sub-Limit" means and refers to the named-windstorm sub-limit of Fifteen Million Dollars ($15,000,000) for business-interruption coverage that Ironclad Indemnity Corporation asserts is contained in the primary policy (Policy No. IIC-PRP-2022-07541) for the July 1, 2022 through July 1, 2023 policy period, and that VHG contends was deleted, removed, or waived at the July 2022 renewal. The term includes any predecessor sub-limit, any related endorsement or rider, and any negotiations, discussions, or agreements concerning the existence, amount, modification, or deletion of such sub-limit.
10. "Hurricane Callista" means and refers to the Category 4 hurricane designated as Hurricane Callista by the National Hurricane Center, which made landfall on September 18, 2022 in the Lower Florida Keys (Big Pine Key area), with maximum sustained winds of approximately 145 miles per hour and storm surge of eight (8) to fourteen (14) feet in Monroe County and six (6) to ten (10) feet in Lee County, and which caused extensive wind damage, storm-surge flooding, and associated damage throughout southwest Florida and portions of the Gulf Coast, including damage to the Properties.
11. "Properties" means and refers to the three VHG resort properties at issue in this litigation:
(a) Verimark Grand Key Resort, located at Mile Marker 48, Marathon, Florida 33050 (a 312-room full-service resort);
(b) Verimark Harborview Hotel & Conference Center, located at 1400 Estero Boulevard, Fort Myers Beach, Florida 33931 (a 224-room hotel and conference center); and
(c) Verimark Sunset Shores, located at 7200 Gulf Boulevard, St. Pete Beach, Florida 33706 (a 186-room beachfront resort).
12. "Document(s)" is used in its broadest sense and means and refers to all writings, recordings, and electronically stored information ("ESI") of every kind and description, whether in hard copy, electronic, magnetic, optical, or any other form, and whether original or copy, including but not limited to: letters; emails (including attachments); text messages (including SMS, Westmark Software, and any other messaging platform); instant messages (including messages transmitted through Northgate Data Systems, Meridian Solutions, or any other collaboration platform); voicemail recordings and transcripts; memoranda; correspondence; notes (including handwritten notes, annotations, and margin notations); reports; proposals; submissions; quotations; binders; cover notes; policies; endorsements; declarations pages; schedules; applications; underwriting files; claim files; spreadsheets; presentations; charts; graphs; tables; drawings; photographs; videos; maps; surveys; inspections; engineering reports; financial statements; invoices; receipts; contracts; agreements; and any other tangible or electronically stored information, whether created, sent, received, stored, or maintained by You, regardless of the medium on which it is stored.
13. "Communication(s)" means and refers to every oral, written, or electronic transmission, exchange, or sharing of information between two or more persons, including but not limited to letters, emails, faxes, text messages, instant messages, telephone calls, telephone conferences, voicemail messages, video conferences, in-person conversations, and meetings, whether formal or informal. Where a Communication is oral, the request seeks all Documents memorializing, reflecting, summarizing, recording, or referring to such oral Communication.
14. "Relating to" or "Concerning" means referring to, pertaining to, describing, evidencing, constituting, reflecting, mentioning, commenting upon, responsive to, setting forth, analyzing, evaluating, summarizing, recording, memorializing, or having any connection or relationship, whether direct or indirect, to the subject matter described.
15. "Relevant Period" means the period from July 1, 2020 through the date of production, unless a specific time period is stated in an individual request in Schedule A. Where a more limited time period is specified in a particular request, that time period shall control for that request.
16. "Person" means any natural person, corporation, limited liability company, partnership, association, joint venture, governmental entity, or any other legal entity or organization.
B. Instructions. The following instructions apply to all document requests contained in this subpoena and in the attached Schedule A:
1. Scope of Production. You are instructed to produce all responsive, non-privileged Documents and things in Your possession, custody, or control. Documents are deemed to be in Your "possession, custody, or control" if You have the right to obtain copies of such Documents from any source, including but not limited to Your own files, servers, cloud-based storage, email archives, backup tapes, mobile devices, and any third-party service provider or custodian holding Documents on Your behalf.
2. Privilege Log. If any Document responsive to this subpoena is withheld in whole or in part on the basis of any claimed privilege or protection (including but not limited to the attorney-client privilege, the work-product doctrine, the joint-defense privilege, or any broker-client privilege recognized under applicable law), You shall produce a privilege log that identifies, for each Document or portion thereof withheld, the following information: (a) the nature of the Document (e.g., letter, email, memorandum, handwritten note); (b) the date of the Document; (c) the author or sender of the Document; (d) all addressees, recipients, and persons copied on the Document; (e) the general subject matter of the Document; and (f) the specific privilege or protection asserted and the factual basis for the assertion. The privilege log shall be produced concurrently with the production of Documents. The privilege log shall contain sufficient detail to enable the requesting party and the Court to evaluate the validity of each privilege claim, consistent with the requirements of Florida Rule of Civil Procedure 1.280(b)(6).
3. Form of Production. Documents shall be produced in the following manner:
(a) Electronically stored information ("ESI") shall be produced in its native electronic format (e.g., .msg, .pst, .eml for emails; .xlsx for spreadsheets; .docx for word-processing documents; .pdf for portable document format files), together with all associated metadata;
(b) Hard-copy documents that do not exist in electronic form shall be produced as legible copies, scanned in color at a resolution of not less than 300 dpi, in single-page TIFF format or searchable PDF format;
(c) All Documents shall bear Bates numbering, using the prefix "TRA-" (for Tidewater Risk Advisors), followed by sequential numbering beginning with TRA-000001;
(d) Documents shall be produced as they are kept in the ordinary course of business, or shall be organized and labeled to correspond with the categories set forth in Schedule A;
(e) Where a Document is an email, the production shall include all attachments to the email in their native format; and
(f) Each page of each Document shall be produced; no pages shall be omitted from multi-page Documents.
4. Documents No Longer in Possession. If any Document responsive to this subpoena was formerly in Your possession, custody, or control but is no longer available, You shall identify such Document with as much specificity as possible, state when and how it was last in Your possession, explain the circumstances under which it ceased to be in Your possession (including whether it was destroyed, lost, transferred, or otherwise disposed of), and identify the person or entity, if any, that is currently in possession of the Document or a copy thereof.
5. Continuing Obligation. This subpoena imposes a continuing obligation to produce Documents. If, at any time after the initial date of production, You discover or come into possession of additional Documents responsive to this subpoena, You are instructed to produce such Documents promptly to the issuing attorney at the address stated herein.
6. Policy-Year Context. The requests in this subpoena seek Documents for the three most recent policy years (July 1, 2020 through July 1, 2023) in order to provide context regarding the evolution, negotiation, and modification of the insurance program over time. The primary focus of this subpoena, however, is the July 1, 2022 through July 1, 2023 policy period, which is the period during which Hurricane Callista occurred and during which the disputed Windstorm Sub-Limit and other coverage terms at issue in this litigation were in effect. Where production of Documents for all three policy years would be unduly burdensome, Tidewater may prioritize Documents relating to the July 1, 2022 through July 1, 2023 policy period, provided that Tidewater promptly supplements its production with Documents from the earlier policy years.
7. Duplicates. If a Document is responsive to more than one category in Schedule A, it need be produced only once, provided that You identify each category to which it is responsive.
8. Construction. The terms "and" and "or" shall be construed both conjunctively and disjunctively as necessary to bring within the scope of this subpoena all Documents that might otherwise be construed to be outside its scope. The singular includes the plural and vice versa. The use of the masculine, feminine, or neuter gender includes all genders. No request shall be construed to be limited in any way by any other request.
IV. SCHEDULE A — CATEGORIES OF DOCUMENTS REQUESTED
The following categories describe the Documents and things to be produced by Tidewater Risk Advisors LLC pursuant to this subpoena duces tecum. All capitalized terms used in this Schedule A shall have the meanings assigned to them in Section III above.
Category 1: Policy Placement and Renewal Files
All Documents relating to the placement, marketing, quoting, binding, and renewal of VHG's property and business-interruption Insurance Program for the policy periods beginning July 1, 2020, July 1, 2021, and July 1, 2022, including but not limited to:
(a) Marketing submissions, applications, supplemental applications, and any supporting materials submitted by Tidewater on behalf of VHG to prospective insurers or reinsurers in connection with the placement or renewal of the Insurance Program;
(b) Quotation requests, requests for quotations ("RFQs"), requests for proposals ("RFPs"), and any written indications, quotations, or proposals received from all markets approached by Tidewater, whether or not such markets ultimately participated in VHG's Insurance Program;
(c) Binders of insurance, cover notes, confirmation-of-coverage letters, and any other Documents evidencing the binding of coverage for VHG's Insurance Program;
(d) Final bound policies, including complete policy jackets, all endorsements, riders, amendments, schedules, conditions, and declarations pages for each layer of the Insurance Program;
(e) Premium allocation schedules, premium invoices, premium finance agreements, and any Documents reflecting the allocation of premium among the layers of the Insurance Program, including the annual premium for the July 1, 2022 through July 1, 2023 policy period of One Million Eight Hundred Forty Thousand Dollars ($1,840,000), broken down as follows: Ironclad — Nine Hundred Eighty Thousand Dollars ($980,000); Pinnacle — Four Hundred Ten Thousand Dollars ($410,000); Montclair — Two Hundred Sixty-Five Thousand Dollars ($265,000); Sovereign Re — One Hundred Eighty-Five Thousand Dollars ($185,000); and comparable information for the July 1, 2020 through July 1, 2021 and July 1, 2021 through July 1, 2022 policy periods;
(f) Broker placement slips, line sheets, market security lists, and any Documents reflecting the layering structure, the participation of each insurer, and the terms negotiated for each layer; and
(g) Any broker reports, stewardship reports, or renewal summaries prepared by Tidewater and delivered to VHG in connection with the placement or renewal of the Insurance Program.
Category 2: Named-Windstorm Sub-Limit — Negotiations and Correspondence
All Documents and Communications relating to the named-windstorm sub-limit in VHG's property and business-interruption Policies, including but not limited to:
(a) Any and all correspondence, emails, text messages, instant messages, and notes of conversations between Tidewater (including Franklin Orde and any other Tidewater personnel) and Ironclad Indemnity Corporation or Ironclad's underwriters, claims personnel, or representatives regarding the existence, amount, modification, deletion, waiver, or reinstatement of the Fifteen Million Dollar ($15,000,000) named-windstorm business-interruption sub-limit in any policy period;
(b) Any and all correspondence, emails, text messages, instant messages, and notes of conversations between Tidewater and VHG (including Sandra Pellegrini, Nathaniel Driscoll, Marcus Ellsworth, Diane Calder, or any other VHG representative) regarding the Windstorm Sub-Limit, its deletion or removal, the desirability of removing or modifying such sub-limit, VHG's instructions regarding the sub-limit, and any discussions relating to the sub-limit at the July 2022 renewal;
(c) Any internal Tidewater memoranda, analyses, work papers, strategy documents, meeting agendas, meeting minutes, or notes prepared by or circulated among Tidewater personnel relating to the negotiation, modification, or deletion of the Windstorm Sub-Limit at any time during the Relevant Period;
(d) Underwriting worksheets, submission summaries, or any other Documents showing the treatment of the Windstorm Sub-Limit in the July 2022 renewal, including any comparison of terms between the July 1, 2021 through July 1, 2022 policy period and the July 1, 2022 through July 1, 2023 policy period;
(e) Any endorsement, amendment, rider, or other policy Document reflecting the deletion, modification, waiver, or alteration of the Windstorm Sub-Limit at the July 2022 renewal or at any other time;
(f) Any binder, cover note, confirmation of coverage, or other Document reflecting the agreed-upon terms of the July 2022 renewal, specifically as to windstorm provisions, named-windstorm sub-limits, and related coverage terms;
(g) Any premium change documentation, rate worksheets, or actuarial analyses reflecting any premium adjustments, additional premiums, or return premiums related to the deletion, modification, or removal of the Windstorm Sub-Limit; and
(h) Any Communications with Pinnacle, Montclair, or Sovereign Re regarding the Windstorm Sub-Limit or the impact, if any, of changes to the primary-layer windstorm provisions on the excess layers of the Insurance Program.
Category 3: Correspondence with Insurers Regarding VHG Account
All Communications between Tidewater and each of the following insurers regarding VHG's property and business-interruption Insurance Program for the July 1, 2022 through July 1, 2023 policy period:
(a) Ironclad Indemnity Corporation, including its underwriters, agents, claims handlers, and representatives;
(b) Pinnacle Surplus Lines Inc., including its underwriters, agents, and representatives;
(c) Montclair Assurance Company, including its underwriters, agents, and representatives; and
(d) Sovereign Re Ltd., including its underwriters, agents, and representatives.
This request includes, but is not limited to, Communications relating to policy terms, conditions, exclusions (including but not limited to flood exclusions, wind-versus-water causation provisions, and anti-concurrent causation clauses), sub-limits (including but not limited to the Windstorm Sub-Limit), deductibles (including named-storm deductibles and percentage deductibles), endorsements, coverage provisions, period-of-restoration provisions, extended period-of-indemnity provisions, ordinance-or-law provisions, coinsurance provisions, and any other material terms of the Insurance Program.
Category 4: Correspondence with VHG Regarding Insurance Program
All Communications between Tidewater and VHG (including Marcus Ellsworth, Diane Calder, Nathaniel Driscoll, Sandra Pellegrini, or any other VHG representative) relating to:
(a) The placement, renewal, modification, or amendment of VHG's property and business-interruption Insurance Program for any policy period during the Relevant Period;
(b) The scope and terms of coverage obtained under the Insurance Program, including the limits, sub-limits, deductibles, exclusions, and conditions applicable to each layer;
(c) Representations made by Tidewater to VHG regarding coverage terms, including but not limited to representations regarding the Windstorm Sub-Limit, flood exclusions, anti-concurrent causation clauses, period-of-restoration provisions, named-storm deductibles, and aggregate and per-occurrence policy limits;
(d) VHG's coverage needs, risk-management objectives, risk tolerance, and specific instructions to Tidewater regarding desired coverage features, policy enhancements, or modifications to the Insurance Program;
(e) Any coverage summaries, executive summaries, comparison charts, program overviews, renewal presentations, or other summary Documents prepared by Tidewater and provided to VHG in connection with the July 2022 renewal or any other renewal during the Relevant Period, including but not limited to any summary of material changes from the prior policy year;
(f) Any warnings, disclosures, or advisories provided by Tidewater to VHG regarding limitations, exclusions, gaps, or potential deficiencies in the Insurance Program; and
(g) Any discussions, negotiations, or correspondence regarding VHG's decision to accept or reject particular coverage terms, pricing structures, or deductible levels offered by the insurers.
Category 5: Hurricane Callista — Claim-Related Communications
All Documents and Communications relating to VHG's Hurricane Callista claim from September 12, 2022 (the date on which Hurricane Callista was designated as a named tropical cyclone by the National Hurricane Center) through the date of production, including but not limited to:
(a) Communications between Tidewater and VHG regarding notice of loss, the timing and manner of claim submission, claim-submission procedures, and any coverage issues arising in connection with the Hurricane Callista claim;
(b) Communications between Tidewater and any of the Defendant insurers (Ironclad, Pinnacle, Montclair, or Sovereign Re) or their representatives, agents, or adjusters (including Victor Haddon at Ironclad and Arbor Claims Services LLC / Denise Whitford) regarding the Hurricane Callista claim, including but not limited to Communications regarding the scope of coverage, the applicability or inapplicability of the Windstorm Sub-Limit, causation issues, and the quantum of VHG's claimed losses;
(c) Any reports, analyses, memoranda, status updates, coverage opinions, or assessments prepared by Tidewater, or by any consultant or expert retained by Tidewater, regarding VHG's Hurricane Callista claim, the likelihood of coverage, or any coverage issues;
(d) Communications relating to the initial notice of loss submitted to Ironclad on or about September 22, 2022, including drafts of such notice and any acknowledgments or responses received;
(e) Communications relating to the sworn statement in proof of loss in the amount of Sixty Million Dollars ($60,000,000), submitted on or about November 15, 2022, including drafts, supporting documentation, and any responses from the insurers;
(f) Communications relating to Ironclad's reservation-of-rights letter dated on or about October 12, 2022, and Ironclad's formal denial of coverage dated on or about February 3, 2023, including any Tidewater analyses, responses, or Communications with VHG regarding such reservation of rights or denial;
(g) Communications relating to Pinnacle's follow-form denial of coverage dated on or about February 10, 2023, including any Tidewater analyses, responses, or Communications with VHG or Pinnacle regarding such denial; and
(h) Communications relating to any coverage position taken by Montclair or Sovereign Re regarding the Hurricane Callista claim, including any follow-form denials, reservation-of-rights letters, or other coverage Communications.
Category 6: Policy Forms, Endorsements, and Manuscript Language
(a) Complete copies of all policy forms, endorsements, declarations pages, schedules, riders, amendments, and supplements for VHG's property and business-interruption Policies across all four layers (Ironclad primary, Pinnacle first excess, Montclair second excess, and Sovereign Re third excess) for the July 1, 2022 through July 1, 2023 policy period;
(b) For comparison purposes, complete copies of all policy forms, endorsements, declarations pages, schedules, riders, amendments, and supplements for VHG's property and business-interruption Policies across all layers for the July 1, 2021 through July 1, 2022 and July 1, 2020 through July 1, 2021 policy periods;
(c) Any manuscript endorsements, bespoke policy language, or specially negotiated amendments drafted, proposed, or agreed upon by Tidewater in connection with the VHG Insurance Program, including any draft or final version of any endorsement relating to the Windstorm Sub-Limit, flood exclusion, anti-concurrent causation clause, or period-of-restoration provisions;
(d) Any follow-form provisions, follow-form endorsements, or Documents reflecting the terms on which the excess layers follow (or do not follow) the terms of the Ironclad primary policy; and
(e) Any certificates of insurance, evidence-of-insurance letters, or similar Documents issued by Tidewater or at Tidewater's direction on behalf of VHG during the Relevant Period.
Category 7: Underwriting Information and Property Data
All property data, schedules of values, statements of values, replacement cost appraisals, loss-history summaries, and other underwriting information submitted by Tidewater on behalf of VHG to the insurers in connection with the placement or renewal of the Policies during the Relevant Period, including but not limited to:
(a) Property descriptions, site surveys, photographs, and valuations for each of the three Properties:
(i) Verimark Grand Key Resort, Mile Marker 48, Marathon, Florida 33050 (312 rooms, including main hotel building, conference annex, guest villas, pool complex, marina, and ancillary structures);
(ii) Verimark Harborview Hotel & Conference Center, 1400 Estero Boulevard, Fort Myers Beach, Florida 33931 (224 rooms, including main tower, conference center, parking garage, and waterfront pavilion); and
(iii) Verimark Sunset Shores, 7200 Gulf Boulevard, St. Pete Beach, Florida 33706 (186 rooms, including main hotel building, spa and wellness center, beach cabanas, and pool deck);
(b) Schedules of values and total insured values ("TIV") for each Property, broken down by building, contents, and business-income values;
(c) Any engineering reports, property condition assessments, wind-mitigation reports, or flood-zone determinations submitted to the insurers;
(d) Historical revenue data, occupancy rates, average daily rate ("ADR"), and revenue-per-available-room ("RevPAR") data provided to the insurers in connection with the business-interruption valuation of each Property; and
(e) Any loss-control or risk-engineering reports prepared by or on behalf of any insurer and provided to or through Tidewater.
Category 8: Prior Claims and Loss History
All Documents relating to any prior property or business-interruption claims made by VHG under any predecessor policy placed by Tidewater during the period July 1, 2017 through July 1, 2022, including but not limited to:
(a) Loss runs, claims-history summaries, and loss-experience reports provided to underwriters in connection with the placement or renewal of the Policies;
(b) Claim notices, proofs of loss, and claim correspondence relating to any prior property or business-interruption claims submitted by VHG;
(c) Claim settlement agreements, releases, and payment records relating to any prior property or business-interruption claims; and
(d) Any Documents reflecting the impact of VHG's prior loss experience on the pricing, terms, or availability of coverage for subsequent policy periods.
Category 9: Broker Fee and Commission Information
All Documents reflecting Tidewater's compensation arrangement for the VHG account during the Relevant Period, including but not limited to:
(a) Broker-of-record letters and broker appointment agreements between Tidewater and VHG;
(b) Commission schedules, commission statements, and commission payment records reflecting the commissions earned by Tidewater on each layer of the Insurance Program;
(c) Fee agreements, fee schedules, and fee invoices reflecting any advisory fees, consulting fees, or service fees charged by Tidewater to VHG;
(d) Any contingent commission agreements, profit-sharing agreements, volume-bonus agreements, or override commission agreements between Tidewater and any of the Defendant insurers (Ironclad, Pinnacle, Montclair, or Sovereign Re); and
(e) Any disclosure of compensation made by Tidewater to VHG in connection with the placement of the Insurance Program.
Category 10: Internal Files and Notes
All internal Tidewater files, account notes, diary entries, call logs, meeting notes, memoranda, activity logs, CRM records, and any other internally generated Documents relating to the VHG account for the period July 1, 2021 through the present, including but not limited to:
(a) Notes, memoranda, or diary entries created by Franklin Orde or any other Tidewater personnel regarding the Windstorm Sub-Limit, the July 2022 renewal negotiations, the terms of coverage agreed upon at the July 2022 renewal, or any disputes or discussions with Ironclad or any other insurer regarding the Windstorm Sub-Limit;
(b) Notes, memoranda, or diary entries created by Franklin Orde or any other Tidewater personnel regarding the Hurricane Callista claim, including but not limited to notes of telephone calls, meetings, or discussions with VHG, any of the Defendant insurers, Arbor Claims, or any other person regarding the claim;
(c) Internal account-review or quality-assurance Documents relating to the VHG account;
(d) Any internal communications among Tidewater personnel (including management, supervisors, and account team members) regarding the VHG account, the Insurance Program, or the Hurricane Callista claim; and
(e) Any Documents reflecting the assignment of personnel to the VHG account, the supervision of the account, or any reviews, audits, or evaluations of Tidewater's handling of the VHG account.
V. TIME FOR COMPLIANCE AND MANNER OF PRODUCTION
A. All Documents responsive to this subpoena shall be produced on or before July 10, 2023, which is twenty (20) days from the date of service, consistent with the time periods prescribed by the Florida Rules of Civil Procedure.
B. Production may be made by either of the following methods:
(a) Physical delivery to Calderwood & Harkness LLP, 333 SE 2nd Avenue, Suite 4400, Miami, Florida 33131, Attention: Tiffany Rosenthal, during regular business hours (Monday through Friday, 9:00 a.m. to 5:00 p.m. Eastern Time); or
(b) Electronic production via secure file transfer, using a link or credentials to be provided by counsel upon request. To arrange for electronic production, Tidewater or its counsel should contact Tiffany Rosenthal at the telephone number or email address provided below.
C. All Documents produced pursuant to this subpoena shall bear sequential Bates numbers using the prefix "TRA-" (for Tidewater Risk Advisors), beginning with TRA-000001 and continuing in sequential order.
D. If Tidewater contends that any Document responsive to this subpoena is protected by any privilege or protection, including but not limited to the attorney-client privilege, the work-product doctrine, any joint-defense or common-interest privilege, or any broker-client privilege recognized under applicable law, Tidewater shall produce a privilege log that complies with the requirements of Florida Rule of Civil Procedure 1.280(b)(6) and the Instructions set forth in Section III.B.2 above. The privilege log shall be produced concurrently with the production of Documents, or no later than ten (10) business days after the date for production.
E. In the event that Tidewater requires additional time to complete its production, Tidewater is encouraged to contact the undersigned counsel promptly to discuss a reasonable extension. The Plaintiff reserves all rights in the event of non-compliance.
VI. OBJECTIONS AND CONTACT INFORMATION
Any objection to this subpoena must be served in writing upon the attorney issuing this subpoena within the time permitted by the Florida Rules of Civil Procedure. Objections shall be specific, shall state the grounds for each objection, and shall not be used as a basis for withholding production of Documents to which no valid objection applies.
For questions regarding this subpoena, the scope of the document requests, the manner of production, or any other matter, please contact:
Tiffany Rosenthal Lead Associate Calderwood & Harkness LLP 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 987-6200 Facsimile: (305) 987-6201
Email: trosenthal@calderwoodharkness.com
Matter Reference Number: 1021-00003
VII. NOTICE TO PARTIES
Pursuant to Florida Rule of Civil Procedure 1.351, notice of the service of this subpoena duces tecum directed to nonparty Tidewater Risk Advisors LLC has been simultaneously served upon counsel for all parties in the above-captioned action, as follows:
Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.:
Gregory Stanton, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, CT 06103 Telephone: (860) 525-3800
Email: gregory.stanton@bracewellrourke.com
Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.:
Patricia Kraus, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, NY 10022 Telephone: (212) 710-4500
Email: pkraus@delvecchiokraus.com
Consistent with Florida Rule of Civil Procedure 1.351, any party may, within the time specified by the Rules, serve an objection to the production of Documents pursuant to this subpoena. If no objection is served within the time permitted, the nonparty shall produce the Documents as directed.
VIII. SIGNATURE BLOCK
Respectfully submitted,
CALDERWOOD & HARKNESS LLP Counsel for Plaintiff Verimark Hospitality Group Inc. 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 987-6200 Facsimile: (305) 987-6201
By: ________
TIFFANY ROSENTHAL Florida Bar No. 118472
Email: trosenthal@calderwoodharkness.com
Approved by:
________________________________________
ELAINE FORSYTHE Florida Bar No. 087651 Responsible Partner
Email: eforsythe@calderwoodharkness.com
IX. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of June, 2023, a true and correct copy of the foregoing Subpoena Duces Tecum Directed to Nonparty Tidewater Risk Advisors LLC, together with the attached Schedule A, was served as follows:
Via Hand Delivery: Tidewater Risk Advisors LLC
Attention: Franklin Orde, Account Executive
2600 S. Bayshore Drive, Suite 800 Miami, FL 33133
Via Email and U.S. Certified Mail, Return Receipt Requested: Gregory Stanton, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, CT 06103
Email: gregory.stanton@bracewellrourke.com
(Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.)
Via Email and U.S. Certified Mail, Return Receipt Requested: Patricia Kraus, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, NY 10022
Email: pkraus@delvecchiokraus.com
(Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.)
________________________________________