PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT — PREPARED IN ANTICIPATION OF LITIGATION DO NOT DISTRIBUTE — DISCLOSURE MAY WAIVE APPLICABLE PRIVILEGES
MEMORANDUM
FROM: Elaine Forsythe, Partner, Calderwood & Harkness LLP
TO: Nathaniel Driscoll, General Counsel, Verimark Hospitality Group Inc.
CC: Marcus Ellsworth, Chief Executive Officer Diane Calder, Chief Financial Officer Sandra Pellegrini, Vice President, Risk Management
DATE: November 22, 2023
RE: Settlement Authority Analysis and Recommendation — Verimark Hospitality Group Inc. v. Ironclad Indemnity Corp. et al., Case No. 2022-CA-031547 (Eleventh Judicial Circuit of Florida, Miami-Dade County)
ENGAGEMENT NO.: 1021-00003
I. Purpose and Executive Summary
The purpose of this memorandum is to provide Verimark Hospitality Group Inc. ("VHG" or the "Company") with a comprehensive analysis of settlement ranges, litigation risks, and our recommended settlement authority in advance of the court-ordered mediation currently scheduled for December 4–5, 2023. The mediation will be conducted before the Honorable Richard Mendelson (Ret.) at Keystone Dispute Resolution Inc., located at 200 S. Biscayne Boulevard, Suite 3100, Miami, Florida 33131. The mediation fee is $15,000 per day for the two-day session, to be split among the parties pursuant to the court's November 20, 2023 order.
VHG's total claimed losses in this action are $60,000,000 in business-interruption ("BI") losses arising from Hurricane Callista, a Category 4 hurricane that made landfall on September 18, 2022, in the Lower Florida Keys. The losses are distributed across three VHG-owned and operated hospitality properties: Grand Key Resort ($31.4 million), Harborview Hotel & Conference Center ($18.7 million), and Sunset Shores ($9.9 million). VHG seeks recovery under an insurance tower providing $60 million in total limits above a $500,000 deductible, comprised of the following layers:
Based on our thorough analysis of the coverage issues, the current state of the evidence, the relative strengths and vulnerabilities of VHG's position, the projected costs of continued litigation through trial, and the anticipated settlement posture of each defendant carrier, we recommend that VHG authorize settlement for no less than $40,000,000 (representing 66.7% of the claimed $60 million), with a target settlement range of $45,000,000 to $50,000,000.
The rationale for this recommendation, elaborated in detail below, rests on several key considerations. VHG holds a strong position on the most consequential coverage issue in the case — the deletion of the $15 million windstorm sub-limit at the July 2022 policy renewal. However, VHG faces meaningful litigation risk on the concurrent causation and flood exclusion issues, as well as the period-of-restoration disputes, which could reduce recovery in the range of $9 million to $20 million depending on how these issues are resolved at trial. Additionally, trial is unlikely to occur before late 2024, and the continued expenditure of legal fees and costs — projected at $1.75 million to $2.4 million through trial — along with the attendant uncertainty for a publicly traded company (Nasdaq: VMRK) weigh in favor of resolution at the mediation.
This memorandum constitutes a privileged and confidential attorney-client communication and attorney work product prepared in anticipation of litigation. It should not be disclosed to any third party, as such disclosure may waive the attorney-client privilege and work-product protection.
II. Status of Litigation
A. Procedural Posture
VHG filed its Complaint against Ironclad Indemnity Corporation ("Ironclad"), Pinnacle Surplus Lines Inc. ("Pinnacle"), Montclair Assurance Company ("Montclair"), and Sovereign Re Ltd. ("Sovereign Re") on March 1, 2023, in the Eleventh Judicial Circuit of Florida, Miami-Dade County. The case has been assigned to the Honorable Catherine Embry, Circuit Judge, and bears Case Number 2022-CA-031547. The Complaint asserts claims for breach of contract, declaratory judgment, and bad faith against the defendant insurers, seeking recovery of $60 million in business-interruption losses under the respective insurance policies.
Defendants filed their respective Answers and Affirmative Defenses on April 15, 2023. Among the affirmative defenses asserted are the applicability of the $15 million named-windstorm sub-limit, the flood and storm-surge exclusion, the anti-concurrent causation clause, failure to mitigate damages, and unreasonable delay in restoration.
The case has proceeded through a robust discovery period. Fact discovery was completed on September 30, 2023, pursuant to the court's revised scheduling order. During the fact discovery period, the parties conducted depositions of key witnesses on both sides, exchanged approximately 187,000 pages of documents, and engaged in multiple rounds of written discovery. Expert reports were served simultaneously on September 15, 2023, with VHG's damages expert, Dr. Helen Vasquez of Meridian Forensic Economics, providing a comprehensive quantification of VHG's BI losses at $60 million, and defendants' expert, Dr. Warren Birk of Graystone Consulting Group LLC, providing a competing analysis estimating VHG's losses in the range of $28 million to $35 million. Rebuttal expert reports were served on October 2, 2023.
Expert depositions have been completed. Dr. Vasquez was deposed on October 16, 2023, and Dr. Birk was deposed on October 23, 2023. Both depositions were attended by counsel for all parties. Dr. Vasquez performed well under cross-examination, maintaining the integrity of her methodology and conclusions. Dr. Birk's deposition revealed certain analytical weaknesses in his report, discussed further in Section IV below, particularly with respect to his occupancy projections and his application of the windstorm sub-limit as a baseline assumption.
B. Pending Motions
The parties have filed competing motions for partial summary judgment on the critical windstorm sub-limit issue.
VHG's Motion for Partial Summary Judgment regarding the deletion of the windstorm sub-limit was filed on November 1, 2023. The motion is supported by a comprehensive Memorandum of Law, a Statement of Undisputed Material Facts, and declarations from three key witnesses: Sandra Pellegrini (VHG's Vice President of Risk Management), Franklin Orde (Account Executive at Tidewater Risk Advisors, VHG's insurance broker), and Dr. Helen Vasquez (VHG's damages expert). The motion argues that the undisputed evidence — including the broker's deposition testimony, the renewal correspondence, the binder language, and the premium increase — establishes as a matter of law that the windstorm sub-limit was deleted at the July 2022 renewal.
Defendants' Cross-Motion for Partial Summary Judgment was filed on November 15, 2023, by Ironclad and Pinnacle, through their lead counsel Gregory Stanton of Fendowell Rourke & Stanton LLP. The cross-motion argues that the formal policy endorsements did not effectuate deletion of the sub-limit and that the policy-as-issued contains the $15 million sub-limit, which cannot be overridden by the broker's representations or the parties' subjective expectations.
VHG's Opposition to Defendants' Cross-Motion is due to be filed on November 29, 2023. As of the date of this memorandum, our team is finalizing that opposition. The opposition will argue that defendants' cross-motion ignores the binding effect of the renewal binder, the underwriter's course of dealing, and the well-established Florida principle that ambiguities in insurance policies are construed against the insurer.
Significantly, the court entered an order on November 20, 2023, directing the parties to mediation before ruling on the summary judgment motions. While the court did not state its reasoning on the record, this procedural decision may indicate that Judge Embry perceives genuine issues of material fact that could preclude summary judgment for either side, or alternatively, that she wishes to give the parties an opportunity to resolve the case before issuing a ruling that could narrow the issues for trial. In either event, the court's decision to order mediation prior to ruling underscores the uncertainty inherent in the pending motions and provides a meaningful backdrop for settlement negotiations.
C. Defense Counsel and Representation Structure
The defendant carriers are represented by two separate law firms, operating under a joint defense arrangement:
Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc. are jointly represented by Fendowell Rourke & Stanton LLP. The defense team is led by Gregory Stanton, a senior partner with extensive experience in complex insurance coverage litigation. Mr. Stanton is supported by Meredith Liang, a senior associate, and Colin Ashford, a junior associate. Mr. Stanton is a skilled and pragmatic litigator who has demonstrated a willingness in prior matters to recommend meaningful settlement when the facts and law favor the policyholder. His involvement in the mediation is likely to facilitate productive negotiations.
Montclair Assurance Company and Sovereign Re Ltd. are jointly represented by Delvecchio & Kraus LLP. The defense team is led by Patricia Kraus, a partner with a national insurance defense practice. She is supported by Raymond Cho, a senior associate. Ms. Kraus has adopted a somewhat less adversarial posture than Mr. Stanton in the litigation to date, consistent with the fact that both Montclair and Sovereign Re reserved their rights but never formally denied VHG's claim. Their position has been that their respective excess layers would not be reached if the windstorm sub-limit applied, effectively deferring to the sub-limit issue as the threshold question.
While the two defense firms operate under a joint defense arrangement and have coordinated their litigation strategy, it is important to note that the interests of the excess carriers may diverge from those of Ironclad at the mediation. Specifically, if the sub-limit issue is resolved against the defendants, the excess carriers face substantial exposure that they may prefer to resolve at a discount rather than risk a full-layer judgment following trial. This potential divergence of interests is a dynamic that we intend to exploit in our mediation strategy, as discussed in Section VII below.
III. Analysis of Key Coverage Issues
This section provides a detailed analysis of each contested coverage issue, including an assessment of VHG's likelihood of prevailing on each issue and the potential impact on the overall recovery. These assessments are necessarily based on professional judgment and are informed by the current state of the evidence, the applicable law, and our experience with similar disputes in Florida courts.
A. Windstorm Sub-Limit ($15M) — Deletion Endorsement Issue
This is the single most consequential issue in the case. If the $15 million named-windstorm sub-limit applies, VHG's maximum BI recovery from the insurance tower is capped at $15 million (less the $500,000 deductible), regardless of the outcome on any other coverage issue. Conversely, if the sub-limit is deemed deleted, the full $60 million tower of coverage is available to VHG, subject to the other defenses discussed below.
1. VHG's Position (Strong)
VHG contends that the $15 million named-windstorm sub-limit contained in the Ironclad primary policy (Policy No. IIC-PRP-2022-07541) was deleted during the July 2022 policy renewal. VHG's position is supported by substantial evidence developed during discovery:
Broker Testimony. Franklin Orde, the account executive at Tidewater Risk Advisors responsible for VHG's account, testified in his deposition on August 28, 2023, that during the July 2022 renewal negotiations, Ironclad's underwriter, Janet Moreno, agreed to delete the named-windstorm sub-limit in exchange for an increase in the annual premium. Mr. Orde testified that this agreement was reached during a telephone call on June 22, 2022, and was subsequently confirmed in an email exchange between Mr. Orde and Ms. Moreno on June 23, 2022. The June 23 email, produced in discovery as Document VHG-00024517, reflects Mr. Orde's summary of the agreed-upon renewal terms, including the notation "Named Windstorm sub-limit — DELETED per agreement." Ms. Moreno responded to this email the same day, stating: "Confirmed. Please proceed with renewal on these terms."
Policyholder Testimony. Sandra Pellegrini, VHG's Vice President of Risk Management, testified in her deposition on August 14, 2023, that she had specifically requested the deletion of the windstorm sub-limit as part of the July 2022 renewal, given VHG's increased exposure to hurricane risk across its Florida portfolio. Ms. Pellegrini testified that VHG understood the sub-limit was removed and relied upon that understanding in structuring the insurance tower and making business decisions regarding the retention of risk.
Documentary Evidence. In addition to the broker correspondence referenced above, the renewal binder issued by Ironclad on July 12, 2022 (Document IIC-00008734), does not reference the $15 million named-windstorm sub-limit. While the binder does not affirmatively state that the sub-limit was deleted, the omission of the sub-limit from the binder — which had been expressly included in the prior year's binder — is consistent with VHG's position that deletion was agreed upon.
Premium Increase. The total annual aggregate premium for VHG's insurance tower increased at the July 2022 renewal, from $1,620,000 in the prior policy year to $1,840,000. The premium breakdown is as follows: Ironclad primary — $980,000; Pinnacle first excess — $410,000; Montclair second excess — $265,000; Sovereign Re third excess — $185,000. The magnitude of the premium increase is consistent with the removal of the windstorm sub-limit, which would have expanded the effective coverage available under the tower for named-windstorm events.
Declaration of Franklin Orde. A declaration from Mr. Orde was filed in support of VHG's Motion for Partial Summary Judgment, attesting under penalty of perjury to the facts described above and authenticating the relevant correspondence.
2. Defendants' Position
Ironclad contends that the formal policy endorsements issued with the 2022–2023 policy did not effectuate the deletion of the windstorm sub-limit. Ironclad points to the fact that the policy manuscript, as issued, continues to contain the $15 million named-windstorm sub-limit on page 47 of the policy form. Ironclad argues that no formal endorsement deleting the sub-limit was ever prepared, executed, or attached to the policy.
Victor Haddon, Ironclad's Senior Vice President of Claims, testified in his deposition on July 10, 2023, that Ironclad's underwriting department never issued a formal endorsement deleting the sub-limit and that, in his view, the sub-limit remains an operative term of the policy. Mr. Haddon acknowledged, however, that he was not involved in the renewal negotiations and could not speak to the communications between the underwriting department and the broker.
Ironclad's legal position, as articulated in Gregory Stanton's cross-motion for partial summary judgment, relies on the "policy-as-issued" doctrine — the principle that the terms of the written policy govern the parties' rights and obligations, and that parol evidence of the broker's representations or the parties' subjective intent cannot override the unambiguous terms of the written policy. Mr. Stanton argues that the broker's communications with the underwriter, even if accurately described by Mr. Orde, do not bind the carrier absent a signed endorsement effectuating the agreed-upon change.
3. Risk Assessment
We assess the probability that VHG prevails on the windstorm sub-limit issue at approximately 65–70%. Several factors support this assessment:
•  Florida law firmly establishes the principle of contra proferentem — that ambiguities in insurance policies are construed against the insurer that drafted the policy. The discrepancy between the broker correspondence (confirming deletion) and the policy-as-issued (retaining the sub-limit) creates, at minimum, an ambiguity that should be resolved in VHG's favor.
•  Florida courts have recognized that the terms agreed upon during renewal negotiations, as reflected in the binder and broker correspondence, may override inconsistent provisions in the subsequently issued policy form, particularly where the insurer had the opportunity to issue the correct endorsement and failed to do so. See, e.g., Rigel v. National Western Life Ins. Co., 157 So. 3d 280 (Fla. 4th DCA 2015); Allstate Ins. Co. v. Delvalle, 766 So. 2d 395 (Fla. 3d DCA 2000).
•  The premium increase at renewal is objectively consistent with the deletion of the sub-limit and undermines Ironclad's position that the sub-limit was intended to remain in effect.
•  Notably, Mr. Haddon's deposition testimony revealed that Ironclad's internal claims committee had debated whether the sub-limit was effectively deleted during the renewal process. This internal uncertainty undermines the credibility of Ironclad's categorical assertion that the sub-limit applies and may suggest that Ironclad's claims personnel recognized the strength of VHG's position.
However, the risk is not negligible. Defendants have a plausible argument that the written policy, as formally issued, governs, and that no endorsement was ever executed. Some Florida courts have emphasized the importance of formal policy endorsements and have been reluctant to override clear policy language based on broker communications or the parties' pre-issuance negotiations. In a bench trial, the outcome on this issue would turn heavily on the court's assessment of the credibility of the witnesses and the weight given to the documentary record.
upside scenario: If the court grants VHG's Motion for Partial Summary Judgment, the sub-limit issue is removed from the case entirely, and VHG proceeds to trial (or settlement negotiations) with the full $60 million tower available. This would fundamentally reshape the defendants' settlement posture and likely result in a significantly higher settlement.
Downside scenario: If the court grants the defendants' Cross-Motion for Partial Summary Judgment, VHG's recovery from the insurance tower is capped at $15 million less the $500,000 deductible, or $14.5 million. This would effectively render the excess layers unreachable and would collapse VHG's claim into a single-carrier dispute with Ironclad.
B. Concurrent Causation / Flood Exclusion
1. Issue Description
Ironclad argues that a substantial portion of the damage at Grand Key Resort, located at Mile Marker 48, Marathon, Florida 33050, resulted from storm surge — which the policy characterizes as "flood" — rather than from wind. The policy contains a flood exclusion, and Ironclad invokes the policy's anti-concurrent causation ("ACC") clause, which provides that loss caused directly or indirectly by flood is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
The storm surge associated with Hurricane Callista was significant. According to data published by the National Hurricane Center ("NHC"), storm surge levels in Monroe County (the location of Grand Key Resort) reached 8 to 14 feet above normal tide levels during the landfall event. The storm surge at the Grand Key property caused extensive damage to ground-floor areas, the marina, and certain landscaping and infrastructure elements, while wind damage was sustained throughout the property, including to upper floors, roofing systems, and building envelopes.
2. VHG's Position
VHG argues that Florida's efficient proximate cause doctrine applies under governing Florida law and that the ACC clause, to the extent it purports to override this doctrine, is unenforceable as a matter of public policy. VHG contends that the named windstorm — Hurricane Callista — was the efficient proximate cause of the damage at all three properties, and that the storm surge was merely a consequence of the windstorm, not an independent excluded peril.
In support of this position, VHG retained Jeffrey Caldwell, PE, of Caldwell Engineering Associates Inc., Doral, Florida, to prepare a forensic engineering report differentiating wind damage from storm-surge damage at each of the three affected properties. Mr. Caldwell's report, produced in discovery on August 15, 2023, concludes that:
•  At Grand Key Resort, wind was the predominant cause of structural damage to the buildings, including roof failures, window breaches, and damage to the HVAC and electrical systems on upper floors. Storm surge caused separate and distinguishable damage primarily to ground-floor areas (approximately the first 6–8 feet of elevation), the marina, and associated waterfront infrastructure. Mr. Caldwell opines that the wind damage and the storm-surge damage can be disaggregated and separately quantified.
•  At Harborview Hotel & Conference Center (Fort Myers Beach, Lee County), storm surge of 6 to 10 feet caused damage to ground-floor areas and the pool complex, but wind damage was more clearly the predominant cause of the overall structural damage, particularly to the conference center roof and the hotel's upper-floor guest rooms.
•  At Sunset Shores (St. Pete Beach, Pinellas County), storm-surge impact was minimal. The property sustained primarily wind damage, and the storm surge at the property's location was only 2 to 4 feet, well within the range of the property's elevated foundation.
VHG argues that even under the ACC clause — assuming it is enforceable — wind damage is independently covered because it constitutes a distinct and separable cause of loss from the storm surge. Under this theory, VHG is entitled to full recovery for all wind-related damage, with the storm-surge damage excluded or separately addressed.
3. Risk Assessment
We assess the probability that VHG prevails on the concurrent causation / flood exclusion issue at approximately 55–60%. This assessment reflects the following considerations:
•  Florida caselaw on anti-concurrent causation clauses is evolving and does not provide clear guidance. Some decisions have favored policyholders by applying the efficient proximate cause doctrine and declining to enforce ACC clauses that would preclude coverage for independently covered perils. See, e.g., Glenrock Enterprises, 208 So. 3d 694 (Fla. 2016) (holding that coverage exists for damage caused by a covered peril even where an excluded peril also contributed to the loss). Other decisions, however, have upheld the enforceability of broad ACC language, particularly in commercial policies negotiated between sophisticated parties.
•  This issue primarily affects the Grand Key Resort claim ($31.4 million). If the flood exclusion applies broadly through the ACC clause to all storm-surge-related damage — including damage that was concurrently caused by wind and surge — the Grand Key recovery could be reduced by approximately 30–40%, or approximately $9.4 million to $12.6 million.
•  The Harborview claim ($18.7 million) also faces some exposure on this issue, given the 6- to 10-foot storm surge at Fort Myers Beach, although wind damage was more clearly predominant at that location.
•  The Sunset Shores claim ($9.9 million) faces minimal exposure on this issue, as storm-surge impact at St. Pete Beach was limited.
•  The strength of VHG's position on this issue depends in significant part on the court's willingness to disaggregate wind damage from storm-surge damage, as Mr. Caldwell's report proposes. If the court accepts this disaggregation approach, the flood exclusion would apply only to the separately identifiable storm-surge damage, preserving coverage for the wind-related losses. If the court instead applies the ACC clause broadly, coverage could be barred for all damage at locations where storm surge was a concurrent cause.
C. Period of Restoration Disputes
1. Issue Description
The policy provides business-interruption coverage for the "period of restoration," defined as the period beginning with the date of the physical loss or damage and ending when the property is repaired, rebuilt, or replaced "with reasonable speed and similar quality." Ironclad argues that BI coverage terminates when repairs "could have been completed with reasonable speed," not necessarily when VHG actually completed the repairs. The practical significance of this dispute is that Ironclad contends VHG unreasonably extended the restoration period at two of the three properties, and that BI coverage should be calculated based on a shorter period.
Specifically, Ironclad and its independent adjuster, Denise Whitford of Arbor Claims Services LLC, Tampa, Florida, contend that:
•  Grand Key Resort was closed for 178 days (September 18, 2022 through March 15, 2023), but could have been restored and reopened 30 to 45 days earlier with expedited contractor scheduling and more aggressive project management. Ms. Whitford testified in her deposition on July 24, 2023, that comparable hospitality properties in the Florida Keys restored operations more quickly following Hurricane Callista.
•  Harborview Hotel & Conference Center was closed for 135 days (September 18, 2022 through January 31, 2023), but could have been restored approximately 20 to 30 days earlier, according to Ms. Whitford's analysis.
2. VHG's Position
VHG contends that the restoration timelines at all three properties were reasonable in light of the extraordinary circumstances created by a Category 4 hurricane. Specifically, VHG has presented evidence that:
•  Contractor shortages were severe in the affected areas following Hurricane Callista. Marcus Ellsworth, VHG's Chief Executive Officer, testified in his deposition on August 7, 2023, about the difficulty of securing qualified contractors in the Florida Keys, where the labor pool was already limited and was overwhelmed by the demand for restoration services across the region. Mr. Ellsworth testified that VHG solicited bids from over a dozen general contractors and that only two submitted proposals within the first 30 days following the hurricane.
•  Permitting delays imposed by Monroe County and Lee County contributed to the extended restoration periods. VHG provided documentation showing that building permit applications submitted in October 2022 were not processed until November and December 2022, due to the volume of post-hurricane applications.
•  Supply-chain disruptions affected the availability of building materials, including roofing materials, impact-resistant windows, and commercial HVAC components. Diane Calder, VHG's Chief Financial Officer, testified in her deposition on August 8, 2023, about the financial constraints and decision-making around restoration timing, including the Company's decision to prioritize quality and code-compliant repairs over speed.
•  Dr. Helen Vasquez's expert report included sensitivity analyses demonstrating that even under the shortened restoration periods proposed by defendants, VHG's total BI losses exceed $50 million. This analysis significantly mitigates the impact of this issue, as it shows that the period-of-restoration dispute affects only a modest portion of the total claim.
3. Risk Assessment
We assess the probability that VHG prevails on the full restoration period at approximately 60%. VHG's position is reasonable and well-supported by the evidence, but defendants have a colorable argument that some acceleration of the restoration timeline was feasible, particularly at Grand Key Resort.
Even if the court accepts defendants' shorter restoration theory, the reduction in the BI claim would be modest — approximately $4 million to $7 million from the total $60 million claim. This is because the shortened restoration periods proposed by defendants (30–45 days for Grand Key, 20–30 days for Harborview) represent a relatively small fraction of the total closure periods, and VHG's revenue loss during those incremental days, while significant, does not fundamentally alter the magnitude of the claim.
The Sunset Shores restoration timeline — 73 days of full closure, followed by a partial-closure period through February 2023 — is the most defensible of the three, as the property reopened relatively quickly and the partial-closure period reflects reasonable phased reopening given the extent of damage.
D. Failure to Mitigate Defense
1. Issue Description
Ironclad has asserted as an affirmative defense that VHG failed to take reasonable steps to reduce the period of business interruption. Specifically, defendants allege that VHG could have arranged temporary facilities, executed partial reopenings more quickly, or made alternative arrangements for displaced guests and conference bookings that would have reduced the magnitude of the BI losses.
2. VHG's Position
VHG has a strong factual record of mitigation efforts. The evidence shows that VHG took affirmative steps to mitigate its losses, including:
•  Partial reopening of Sunset Shores on November 30, 2022, only 73 days after the hurricane — a relatively prompt reopening given the severity of the damage. The property operated at reduced capacity while repairs continued on affected wings and common areas.
•  Redirection of bookings to unaffected sister properties in VHG's portfolio, including properties in the Tampa Bay area and on the Atlantic coast. Sandra Pellegrini testified about the coordination of this effort, including outreach to guests with existing reservations and the establishment of a dedicated customer-service team to manage rebookings.
•  Incurrence of extra expenses to expedite repairs, including overtime labor costs, premium freight charges for building materials, and the engagement of supplemental contractors from outside the immediate affected area.
Ms. Pellegrini's deposition testimony on August 14, 2023, provided detailed information about the mitigation coordination, including the establishment of a post-hurricane recovery task force that met daily during the first 60 days following the hurricane.
3. Risk Assessment
We assess the probability that defendants prevail on the failure-to-mitigate defense at approximately 15–20%. This defense is weak given VHG's strong factual record of mitigation efforts. Even if a court were to find some deficiency in VHG's mitigation efforts, the potential reduction in the BI claim would be modest — approximately $2 million to $4 million — and would likely overlap with the period-of-restoration adjustment discussed in Section III.C above.
IV. Damages Analysis and Valuation Scenarios
A. VHG's Claimed Losses ($60M)
VHG's total business-interruption claim is $60,000,000, broken down by property as follows:
The Grand Key Resort claim of $31.4 million includes not only lost room revenue but also lost ancillary revenue from marina operations, food and beverage outlets, spa services, and other guest amenities, adjusted for saved variable expenses during the closure period. The Harborview claim of $18.7 million includes lost revenue from the property's 40,000-square-foot conference facility, which had committed bookings for eight corporate events and two association conventions during the closure period. The Sunset Shores claim of $9.9 million reflects the 73-day full closure and the reduced-capacity period through February 2023, during which occupancy averaged approximately 45% versus the pre-hurricane projected 79%.
VHG's pre-loss financial baseline supports the magnitude of the claim. For fiscal year 2021, VHG reported total revenue of $412 million and EBITDA of $78 million across its portfolio of 14 properties. The three affected properties contributed approximately $148 million in revenue and $31 million in EBITDA in FY 2021, representing roughly 36% of VHG's total revenue and 40% of EBITDA.
Dr. Helen Vasquez of Meridian Forensic Economics, VHG's damages expert, quantified VHG's BI losses at $60 million in her expert report served on September 15, 2023. Dr. Vasquez employed a comparable-period methodology, analyzing the affected properties' historical financial performance for the corresponding periods in prior years (2019–2021, excluding 2020 due to COVID-19 anomalies), adjusting for year-over-year growth trends, seasonal variations, industry benchmarks, and property-specific financial data including committed bookings and revenue projections. Dr. Vasquez's methodology is well-established in the forensic economics literature and has been accepted by Florida courts in prior BI disputes.
B. Defendants' Valuation
Dr. Warren Birk of Graystone Consulting Group LLC, Chicago, Illinois, provided the defendants' competing damages analysis. Dr. Birk's expert report, also served on September 15, 2023, estimated VHG's BI losses in the range of $28 million to $35 million — approximately 47% to 58% of VHG's claimed losses.
The key differences between Dr. Vasquez's and Dr. Birk's analyses are as follows:
1.  Period of Restoration: Dr. Birk applies the shorter restoration periods advocated by defendants (133–148 days for Grand Key, 105–115 days for Harborview), reducing the loss period and correspondingly reducing the BI calculation.
2.  Flood/Storm Surge Allocation: Dr. Birk allocates a larger portion of the Grand Key Resort damage to flood and storm surge (which he treats as excluded under the policy), reducing the covered BI losses at that property by approximately $8 million to $11 million.
3.  Occupancy Projections: Dr. Birk applies reduced occupancy projections for the affected properties during the post-hurricane period, based on the theory that regional tourism would have declined following Hurricane Callista even if the properties had been operational. This is a debatable assumption and was effectively challenged during Dr. Birk's deposition on October 23, 2023, where he conceded that his regional tourism decline adjustment was not based on VHG-specific data but on general industry reports.
4.  Windstorm Sub-Limit: Dr. Birk's analysis applies the $15 million windstorm sub-limit as a baseline assumption, capping total covered losses from the named windstorm at $15 million. This is, of course, a legal issue rather than an actuarial one, and Dr. Birk acknowledged in his deposition that if the sub-limit is deemed deleted, his loss range would increase to approximately $38 million to $42 million.
This last point is significant. Even under Dr. Birk's methodology — which is less favorable to VHG in several respects — the removal of the windstorm sub-limit would result in an estimated loss range of $38 million to $42 million, lending substantial support to VHG's position that a settlement in the $40 million to $50 million range is reasonable and well-supported by the evidence.
C. Scenario Analysis
We have prepared a probability-weighted scenario analysis to guide the settlement authority recommendation. The scenarios are as follows:
Scenario 1: Best Case — VHG Prevails on All Issues
Under this scenario, VHG prevails on the windstorm sub-limit issue, the concurrent causation / flood exclusion issue, the period-of-restoration dispute, and the failure-to-mitigate defense. The full $60 million claim is recovered, less the $500,000 deductible, yielding a net recovery of $59.5 million from the insurance tower.
Probability: approximately 20–25%
Scenario 2: Strong VHG Outcome — Win on Sub-Limit, Partial Win on Concurrent Causation
Under this scenario, VHG prevails on the windstorm sub-limit issue and largely prevails on the period-of-restoration and mitigation disputes, but the court accepts some allocation of Grand Key Resort losses to flood/storm surge under the ACC clause, resulting in a modest reduction.
Recovery range: $48 million to $55 million Probability: approximately 30–35%
Scenario 3: Moderate Outcome — Win on Sub-Limit, Meaningful Reductions on Other Issues
Under this scenario, VHG prevails on the windstorm sub-limit issue, but the court accepts defendants' position on a meaningful portion of the concurrent causation / flood exclusion and period-of-restoration disputes. The Grand Key Resort recovery is reduced by the flood allocation, and the Harborview recovery is modestly reduced by the period-of-restoration adjustment.
Recovery range: $40 million to $48 million Probability: approximately 25–30%
Scenario 4: Adverse Outcome — Sub-Limit Upheld, Some Coverage Recovered
Under this scenario, the court upholds the $15 million windstorm sub-limit, capping VHG's named-windstorm BI recovery at $14.5 million (after deductible). VHG may recover some additional amounts for non-windstorm-related BI losses, but the total recovery is substantially reduced.
Recovery range: $14.5 million to $25 million Probability: approximately 15–20%
Scenario 5: Worst Case — Sub-Limit Upheld, Flood Exclusion Applies Broadly
Under this scenario, the court upholds the windstorm sub-limit and also applies the flood exclusion broadly through the ACC clause, further reducing the covered BI losses.
Recovery range: $8 million to $14.5 million Probability: approximately 5–10%
Expected Value Calculation
Applying the probability weights to the midpoint of each scenario range, the weighted expected recovery is as follows:
The probability-weighted expected recovery is approximately $42 million to $47 million, with a central estimate of approximately $45.3 million. This expected value represents the baseline against which any settlement offer should be evaluated, subject to adjustment for litigation costs, time value of money, and risk preferences.
V. Litigation Cost Projections
A. Costs Incurred to Date
Calderwood & Harkness LLP has incurred the following fees and expenses in connection with this engagement through November 2023:
•  Legal fees incurred through November 2023: approximately $2,200,000. This reflects approximately 2,800 hours of attorney time at the applicable hourly rates, including preparation of the Complaint, written discovery, depositions of fact and expert witnesses, the Motion for Partial Summary Judgment and supporting materials, and ongoing case management.
•  Litigation expenses incurred through November 2023: approximately $320,000, including court reporter fees, transcript costs, electronic discovery hosting and review platform expenses, travel costs for depositions, filing fees, and service of process costs.
•  Expert costs incurred: VHG has retained Dr. Helen Vasquez and her team at Meridian Forensic Economics (Dr. Vasquez at $625/hour; supporting analysts at $375/hour), as well as Jeffrey Caldwell, PE, of Caldwell Engineering Associates Inc. Expert costs through November 2023 are included in the expenses figure above.
•  Total invested to date: approximately $2,500,000.
B. Projected Additional Costs Through Trial
If the case does not settle at the December mediation and proceeds through trial — which we estimate would not occur until late 2024, based on the current pace of the litigation and the court's calendar — VHG should anticipate the following additional costs:
•  Additional attorney fees through trial: approximately $1,500,000 to $2,000,000, reflecting the preparation of pretrial motions (including any additional summary judgment briefing), trial preparation, jury selection (if applicable), and an estimated 10- to 14-day trial.
•  Additional expert witness fees: approximately $150,000 to $250,000, reflecting trial preparation, preparation of demonstrative exhibits, and expert testimony at trial for Dr. Vasquez, Mr. Caldwell, and potentially a rebuttal witness.
•  Additional litigation expenses: approximately $100,000 to $150,000, including trial exhibits, demonstrative exhibits, technology for trial presentation, witness travel, and miscellaneous trial-related costs.
•  Total additional litigation cost if no settlement: approximately $1,750,000 to $2,400,000.
•  Total all-in cost through trial (including amounts already incurred): approximately $4,250,000 to $4,900,000.
C. Cost-Benefit Analysis
The cost-benefit analysis strongly favors settlement at the recommended levels:
Cost savings. Settlement at the December mediation would save VHG approximately $1,750,000 to $2,400,000 in additional legal fees, expert costs, and litigation expenses that would otherwise be incurred through trial.
Time value of money. A settlement reached in December 2023 or early 2024 would provide VHG with recovery funds approximately 6 to 12 months sooner than a post-trial judgment, which would not be entered until late 2024 at the earliest and could be subject to post-trial motions and appeal, potentially extending the timeline by an additional 12 to 24 months. Assuming a discount rate of 5–7% (reflecting VHG's cost of capital), the present value of a $45 million settlement received in January 2024 exceeds the present value of a $48 million judgment received in December 2024.
Public company considerations. VHG is a publicly traded company (Nasdaq: VMRK). Early resolution of this litigation would reduce uncertainty for investors and analysts, improve VHG's ability to provide forward-looking guidance in its earnings reports, and simplify VHG's SEC reporting obligations with respect to contingent liabilities. Settlement would also avoid the risk of adverse trial publicity, which could affect VHG's stock price, brand reputation, and relationships with guests and corporate clients.
VI. Assessment of Defendants' Settlement Posture
A successful mediation strategy requires an accurate assessment of each defendant carrier's settlement posture, including their exposure, their risk tolerance, and the dynamics between the carriers in the insurance tower. We provide our assessment of each carrier below.
A. Ironclad Indemnity Corporation
Ironclad has the most significant exposure in this case as the primary carrier, with a $25 million limit under Policy No. IIC-PRP-2022-07541. Ironclad is also the carrier most directly implicated in the windstorm sub-limit dispute, as the sub-limit appears in its policy form and the deletion was allegedly agreed to by its underwriter.
Victor Haddon, Ironclad's SVP of Claims, has taken an aggressive denial posture throughout the litigation. However, Mr. Haddon's deposition testimony on July 10, 2023, revealed that Ironclad's internal claims committee had debated whether the sub-limit was effectively deleted during the renewal process. Specifically, Mr. Haddon acknowledged that the claims committee reviewed the broker correspondence and the renewal binder and that "there were differing views within the committee on the sub-limit question." This internal uncertainty significantly undermines the credibility of Ironclad's categorical denial and creates meaningful settlement pressure.
Additionally, Ironclad faces potential bad-faith exposure under Florida law. Calderwood & Harkness sent a statutory bad-faith notice to Ironclad on February 15, 2023, pursuant to Section 624.155, Florida Statutes, placing Ironclad on notice of a potential first-party bad-faith claim in the event that Ironclad's denial is ultimately found to have been unreasonable. Florida's bad-faith statute permits recovery of consequential damages, punitive damages, and attorney's fees beyond the policy limits, creating substantial additional exposure for Ironclad that extends well beyond the $25 million policy limit. This bad-faith exposure is a significant source of leverage at mediation.
We estimate Ironclad's settlement range at $22 million to $24.5 million, representing near-full payment of its $25 million primary layer. Defense counsel Gregory Stanton of Fendowell Rourke & Stanton LLP is an experienced and pragmatic litigator who, based on our prior dealings with him, is likely to recommend meaningful settlement to his client rather than risk an adverse ruling on the sub-limit issue followed by a trial on the remaining coverage defenses.
B. Pinnacle Surplus Lines Inc.
Pinnacle provides the first excess layer of $15 million in excess of $25 million, under Policy No. PSL-XS1-2022-3390. Pinnacle's coverage is follow-form with Ironclad's primary policy, meaning that the sub-limit issue and the other coverage defenses applicable to Ironclad's policy also apply to Pinnacle's layer.
Pinnacle followed Ironclad's denial of VHG's claim on February 10, 2023, but has an independent obligation to assess coverage under its own policy. Pinnacle is jointly represented with Ironclad by Fendowell Rourke & Stanton LLP, which facilitates coordinated settlement negotiations.
We estimate Pinnacle's settlement range at $10 million to $13 million. Pinnacle's exposure is directly dependent on the resolution of the sub-limit issue. If the sub-limit applies, Pinnacle's layer is never reached (the $15 million sub-limit is below Pinnacle's $25 million attachment point). If the sub-limit is deleted, Pinnacle faces full-layer exposure. This binary risk profile is likely to motivate Pinnacle to contribute meaningfully to a settlement rather than face the all-or-nothing outcome at trial.
C. Montclair Assurance Company
Montclair provides the second excess layer of $10 million in excess of $40 million, under Policy No. MAC-XS2-2022-09817. Montclair reserved its rights upon receipt of VHG's claim but never issued a formal denial, maintaining a less adversarial posture than Ironclad and Pinnacle throughout the litigation. Montclair is represented by Delvecchio & Kraus LLP, with Patricia Kraus as lead counsel and Raymond Cho as senior associate.
Like Pinnacle, Montclair's exposure is contingent on the resolution of the sub-limit issue. If the $15 million sub-limit applies, Montclair's $40 million attachment point is never reached, and Montclair has zero exposure. If the sub-limit is deleted, Montclair faces potential full-layer exposure of $10 million, depending on the overall quantum of covered losses.
This binary risk profile gives Montclair a strong incentive to settle at a discount rather than face the possibility of full-layer exposure if the sub-limit is stricken and the total covered losses reach or exceed its attachment point. We estimate Montclair's settlement range at $5 million to $8 million.
D. Sovereign Re Ltd.
Sovereign Re provides the third and final excess layer of $10 million in excess of $50 million, under Policy No. SRL-XS3-2022-5102. Sovereign Re is domiciled in Bermuda and is jointly represented with Montclair by Delvecchio & Kraus LLP. Sovereign Re's posture mirrors Montclair's — it reserved rights but never formally denied and has maintained a wait-and-see approach throughout the litigation.
As the highest layer in the tower, Sovereign Re has the strongest argument for a substantial discount in any settlement allocation. Its $50 million attachment point means that its layer is reached only if VHG's total covered losses exceed $50 million — a result that requires VHG to prevail on essentially all coverage issues. Conversely, if the sub-limit is stricken and VHG prevails on the concurrent causation and period-of-restoration issues (even partially), Sovereign Re faces meaningful exposure.
We estimate Sovereign Re's settlement range at $3 million to $5 million, reflecting the highest discount in the tower consistent with the probability that its layer would be reached at trial.
E. Aggregate Settlement Range
Based on the foregoing carrier-by-carrier analysis, the aggregate settlement range is as follows:
The expected midpoint of the aggregate settlement range is approximately $45 million to $47 million, which is consistent with the probability-weighted expected value of the litigation calculated in Section IV.C above.
VII. Mediation Logistics and Strategy
A. Mediator
The court-ordered mediation will be conducted by the Honorable Richard Mendelson (Ret.), a former Circuit Court judge with over 25 years on the bench and significant experience in complex insurance coverage disputes. Judge Mendelson is affiliated with Keystone Dispute Resolution Inc. and is widely respected among the insurance bar for his thorough preparation and pragmatic approach to mediation.
The mediation is scheduled for two days: December 4–5, 2023. It will be held at Keystone's offices at 200 S. Biscayne Boulevard, Suite 3100, Miami, Florida 33131. The mediation fee is $15,000 per day, for a total of $30,000 for the two-day session. Pursuant to the court's November 20, 2023 order, the mediation fee is to be split among the parties, with VHG bearing one-half and the defendants collectively bearing the other half.
B. Strategic Approach
We recommend the following mediation strategy:
Opening Demand: $60 Million (Full Policy Limits). VHG should open the mediation with a demand for the full $60 million in policy limits, demonstrating confidence in the strength of the claim and establishing the high end of the negotiating range. While we do not expect to settle at this level, a strong opening demand signals to the mediator and to the defendants that VHG is prepared to proceed to trial and believes in the merits of its case.
Mediation Position Statement. A confidential mediation position statement will be submitted to Judge Mendelson by November 28, 2023, in accordance with his standard mediation procedures. The position statement will provide a comprehensive summary of the facts, the coverage issues, the damages analysis, and VHG's litigation position. It will be marked "CONFIDENTIAL — FOR MEDIATOR'S EYES ONLY" and will not be shared with the defendants.
Mediation Damages Summary and Exhibit Book. Our team will prepare a mediation damages summary and exhibit book by December 1, 2023. This document will include property-by-property loss summaries, key deposition excerpts, the broker correspondence regarding the sub-limit deletion, the premium comparison, and excerpts from Dr. Vasquez's expert report. The exhibit book will be shared with the defendants during the opening session.
Leverage from Pending PSJ Motion. We will emphasize to the defendants and to the mediator that VHG's pending Motion for Partial Summary Judgment on the windstorm sub-limit issue has not yet been decided by the court. If the court grants VHG's motion, the defendants' settlement posture will deteriorate significantly, as the full $60 million tower will be available and the excess carriers will face full-layer exposure. The pendency of this motion creates a "ticking clock" dynamic that should motivate the defendants to resolve the case before the court rules.
Bad-Faith Exposure. We will emphasize Ironclad's potential bad-faith exposure under Florida statute, including the February 15, 2023 statutory notice. Florida's bad-faith framework permits recovery of consequential damages, punitive damages, and attorney's fees beyond the policy limits. This extracontractual exposure substantially increases the stakes for Ironclad and should be a significant factor in the mediator's evaluation of the case.
Anticipated Defendants' Opening. Based on Dr. Birk's damages analysis and the defendants' coverage positions, we anticipate that the defendants will open the mediation in the range of $18 million to $22 million. This opening range would reflect application of the windstorm sub-limit plus some additional contribution for non-sub-limited losses. We expect the defendants' opening to serve as their anchor point, from which they will make incremental concessions during the negotiation.
Target Range: $45 Million to $50 Million. Our target for the mediation is to negotiate a settlement in the range of $45 million to $50 million, which represents the upper half of the aggregate settlement range estimated in Section VI.E. We believe this range is achievable given the strength of VHG's position on the sub-limit issue, the bad-faith leverage, and the mediator's likely assessment that a trial outcome in the $40–$55 million range is more probable than not.
Walk-Away Floor: $40 Million. We recommend that VHG establish a firm walk-away floor of $40 million. If the mediation does not produce an offer at or above this level, VHG should be prepared to proceed with the litigation, including the pending summary judgment motions and, if necessary, trial.
C. VHG Representatives at Mediation
We recommend that the following VHG representatives attend the mediation:
•  Nathaniel Driscoll, General Counsel — as the primary decision-maker with authority to negotiate and approve a settlement within the authorized range.
•  Diane Calder, Chief Financial Officer — to address any financial questions that may arise during the negotiation, including questions about the BI calculations, VHG's financial condition, and the impact of settlement on VHG's financial reporting.
Both Mr. Driscoll and Ms. Calder should attend with full settlement authority within the range approved by the VHG Board of Directors. Marcus Ellsworth, VHG's Chief Executive Officer, should be available by telephone throughout the mediation session in the event that his participation is needed for any discussions that exceed the scope of Mr. Driscoll's and Ms. Calder's authority.
The Calderwood & Harkness team at the mediation will consist of:
•  Elaine Forsythe (lead counsel)
•  Tiffany Rosenthal (associate)
•  Andrew Fitzpatrick (supporting associate)
VIII. Fee Implications of Settlement
A. Calderwood & Harkness Fee Structure
Calderwood & Harkness's engagement with VHG in this matter is governed by the engagement letter dated August 15, 2022, as amended. The fee structure includes the following components:
Hourly Rates. Calderwood & Harkness charges on an hourly basis at the following rates:
The blended hourly rate across the team is approximately $785/hour.
Contingency Enhancement. In addition to hourly fees, the engagement letter provides for a contingency enhancement equal to 5% of net recovery above $30 million. This enhancement was negotiated to align the firm's incentives with VHG's goal of maximizing recovery and reflects the risk that Calderwood & Harkness assumed in committing substantial resources to this case. The enhancement applies to any recovery, whether by settlement, judgment, or otherwise.
The enhancement calculations at various settlement levels are as follows:
Total Estimated Hourly Fees at Conclusion. Based on our current projection of total hours through the conclusion of the engagement (including mediation preparation and attendance, but excluding trial), we estimate total hourly fees of approximately $2,684,700, reflecting approximately 3,420 hours of attorney time.
Total Estimated Expenses. We estimate total litigation expenses of approximately $412,000, inclusive of all expert costs, deposition expenses, discovery-related costs, and travel.
B. Net Recovery to VHG at Various Settlement Levels
The following table summarizes VHG's estimated net recovery at various settlement levels, after deducting hourly fees, the contingency enhancement, and expenses:
These net recovery figures should be compared against the expected net recovery through trial. If VHG proceeds to trial and obtains a judgment at the probability-weighted expected value of approximately $45.3 million, the additional litigation costs of $1.75 million to $2.4 million would reduce the net recovery to approximately $38.5 million to $39.5 million (after total fees, enhancement, and expenses of approximately $5.3 million to $6.1 million), and the recovery would not be received until late 2024 at the earliest. This comparison further supports settlement at the recommended levels.
IX. Recommendation
Based on the foregoing analysis of the coverage issues, the litigation risks, the damages scenarios, the cost projections, and the assessment of the defendants' settlement posture, we make the following recommendations:
1.  Settlement Authority Floor: $40,000,000. We recommend that VHG establish a settlement authority floor of $40,000,000 in aggregate from all defendant carriers. This figure represents the minimum settlement that VHG should accept at the December mediation.
2.  Target Settlement Range: $45,000,000 to $50,000,000. We recommend that VHG's negotiating team target a settlement in the range of $45 million to $50 million, which represents the upper half of the estimated aggregate settlement range and exceeds the probability-weighted expected value of the litigation.
3.  Opening Mediation Demand: $60,000,000. VHG should open the mediation with a demand for the full $60 million claim amount, consistent with the strength of VHG's position and the need to establish a strong negotiating anchor.
4.  Rationale for $40 Million Floor. The recommended floor of $40 million is supported by the following considerations:
(a) Exceeds net expected value of trial. A settlement of $40 million at the mediation exceeds the probability-weighted expected value of the litigation ($42–$47 million gross, reduced to approximately $38.5–$39.5 million net after additional trial costs of $1.75–$2.4 million). A settlement at or above $40 million thus delivers value to VHG that is equal to or greater than what VHG can expect to achieve through trial, without the attendant risks.
(b) Meaningful net recovery. At $40 million, VHG's net recovery after all fees, enhancements, and expenses is approximately $36.4 million, representing recovery of 60.7% of the $60 million gross claim after costs. This is a meaningful and substantial recovery that reflects the strength of VHG's coverage position.
(c) Eliminates downside risk. Settlement at $40 million eliminates the risk of an adverse ruling on the windstorm sub-limit issue (Scenarios 4 and 5 in the scenario analysis), which could reduce VHG's recovery to a range of $8 million to $25 million. The sub-limit issue, while favorable to VHG, carries a 30–35% probability of an adverse outcome. The elimination of this tail risk is itself a significant benefit of settlement.
(d) Certainty and timeliness. Settlement provides VHG with a certain and timely recovery, avoiding the uncertainty and delay of continued litigation through trial and potential appeal. VHG would receive settlement funds in early 2024, approximately 6 to 12 months sooner than a post-trial judgment.
(e) Public company considerations. As a publicly traded company on the Nasdaq exchange (VMRK), VHG has significant interest in resolving the uncertainty associated with this litigation. Early resolution simplifies VHG's financial reporting, reduces the need for contingent-liability disclosures, and avoids potential adverse publicity from a trial. Settlement provides certainty for investors and analysts and permits VHG's management to focus on operational priorities.
5.  Against Settling Below $40 Million. We recommend against settling below $40 million absent a material adverse development in the litigation, such as an adverse ruling on VHG's Motion for Partial Summary Judgment on the windstorm sub-limit or the emergence of new evidence that materially weakens VHG's position on the concurrent causation or period-of-restoration issues. No such developments are anticipated at this time.
6.  Board Authorization. We request that the VHG Board of Directors, or such officer(s) as may be authorized to approve settlement on behalf of the Company, approve the recommended settlement authority range of $40 million to $50 million prior to the December 4, 2023 mediation. Written confirmation of such authorization should be provided to Calderwood & Harkness no later than December 1, 2023.
X. Next Steps
In preparation for the December 4–5, 2023 mediation, the following steps must be completed:
1.  Finalize Confidential Mediation Position Statement. Calderwood & Harkness will finalize and submit the confidential mediation position statement to Judge Mendelson by November 28, 2023. A draft of the position statement will be circulated to the VHG team for review and comment by November 26, 2023.
2.  Prepare Media