1021-00003 · Verimark Hospitality Group · Pleadings & Court Filings

exhibit-a-ironclad-primary-policy-excerpts.docx DOCUMENT Antitrust

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EXHIBIT A

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

GENERAL CIVIL DIVISION

_________/

Excerpts from Primary All-Risk Property and Business Interruption Insurance Policy Issued by Ironclad Indemnity Corporation

Policy Number: IIC-PRP-2022-07541

PREFATORY NOTE

The following pages constitute true and correct excerpted portions of the primary All-Risk Property and Business Interruption Insurance Policy, Policy Number IIC-PRP-2022-07541, issued by Defendant Ironclad Indemnity Corporation to Plaintiff Verimark Hospitality Group Inc. (the "Policy"). These excerpts are attached hereto as Exhibit A to the Complaint filed by Plaintiff in the above-styled action.

Pages and provisions of the Policy not directly relevant to the claims at issue in this litigation have been omitted for the convenience of the Court and the parties. All omissions are indicated by the notation "[...]" or by a series of asterisks (" * "). The omission of any provision, endorsement, or page shall not be construed as an admission by any party that such omitted material is irrelevant, immaterial, or otherwise waived. The full and complete Policy, as issued by Ironclad Indemnity Corporation and in the possession of the parties, is available for inspection upon request directed to counsel for Plaintiff.

The excerpts reproduced herein reflect the Policy as issued and delivered by Ironclad Indemnity Corporation. All formatting, including section numbering, headings, defined terms, and endorsement references, has been reproduced as faithfully as practicable from the original policy document.

IRONCLAD INDEMNITY CORPORATION

ALL-RISK PROPERTY AND BUSINESS INTERRUPTION INSURANCE POLICY

DECLARATIONS PAGE

Policy Number: IIC-PRP-2022-07541

SECTION 1: DECLARATIONS

1.1 Named Insured

Named Insured: Verimark Hospitality Group Inc.

Mailing Address: 1900 Brickell Avenue, Suite 3200, Miami, Florida 33129

Entity Type: Corporation organized and existing under the laws of the State of Delaware, authorized to transact business in the State of Florida.

Federal Employer Identification Number (FEIN): 59-3841276

1.2 Policy Number and Policy Period

Policy Number: IIC-PRP-2022-07541

Policy Period: From July 1, 2022 to July 1, 2023

Both dates at 12:01 A.M. standard time at the mailing address of the Named Insured shown above. The Policy Period shall commence and expire at the times and on the dates stated herein, unless earlier terminated or canceled in accordance with the provisions of this Policy.

1.3 Issuing Company

Ironclad Indemnity Corporation 55 Constitution Boulevard Hartford, Connecticut 06103

NAIC Number: 20537

Ironclad Indemnity Corporation is a stock insurance company organized under the laws of the State of Connecticut and duly authorized to transact insurance business in the State of Florida.

1.4 Policy Type

All-Risk Property Insurance Policy — Including Business Interruption and Extra Expense

This policy insures against all risks of direct physical loss of or damage to Covered Property, except as hereinafter excluded. This Policy includes coverage for Business Interruption and Extra Expense, subject to the terms, conditions, sub-limits, endorsements, and exclusions set forth herein and in the endorsements attached hereto and made a part hereof.

1.5 Covered Locations (Schedule of Insured Properties)

The following Covered Locations are insured under this Policy. The Named Insured's insurable interest in each location is as described below. Total Insurable Values ("TIV") are as reported by the Named Insured and accepted by the Company for underwriting purposes.

[...]

Additional Covered Locations are listed in the complete Schedule of Insured Properties attached to the Policy. Such additional locations have been omitted from these excerpts as they are not directly at issue in this litigation.

1.6 Limits of Insurance

The following Limits of Insurance apply to this Policy, subject to all applicable sub-limits, deductibles, endorsements, terms, and conditions:

The Aggregate Annual Limit is the maximum amount the Company will pay for all covered losses occurring during the Policy Period, regardless of the number of occurrences. The Per Occurrence Limits stated above are part of, and not in addition to, the Aggregate Annual Limit.

1.7 Deductible.

The deductible shall be applied to the total amount of covered loss from any one occurrence before any payment is made under this Policy.

1.8 Premium. Annual Premium: $980,000.00

Premium is fully earned upon inception of the Policy Period. Applicable taxes, surcharges, and assessments are in addition to the stated premium and shall be the responsibility of the Named Insured.

1.9 Insurance Broker of Record

Tidewater Risk Advisors LLC 2600 S. Bayshore Drive, Suite 800 Miami, Florida 33133

Account Executive: Franklin Orde

The Broker of Record listed herein is authorized to act on behalf of the Named Insured in matters relating to the placement and servicing of this Policy, including but not limited to the submission of applications, endorsements, and correspondence. The Company may rely upon instructions and representations made by the Broker of Record as if made by the Named Insured, unless the Company has received written notice to the contrary from the Named Insured.

1.10 Forms and Endorsements Applicable

The following forms and endorsements are attached to and made a part of this Policy at inception. In the event of any conflict between the provisions of this Declarations Page and the provisions of any endorsement, the endorsement shall control:

Endorsement No. 1: Covered Property Definition

Endorsement No. 2: Business Interruption Coverage

Endorsement No. 3: Extra Expense Coverage

Endorsement No. 4: Period of Restoration

Endorsement No. 5: Exclusions

Endorsement No. 6: Flood Exclusion

Endorsement No. 7: Named Windstorm Provisions

Endorsement No. 8: Duties After Loss

Endorsement No. 9: Valuation

Endorsement No. 10: Other Insurance / Excess Layer Coordination

[...]

Additional endorsements are listed in the full Policy but are not excerpted herein.

1.11 Governing Law

This Policy shall be construed and interpreted in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. Any dispute arising out of or relating to this Policy shall be subject to the jurisdiction of the courts of the State of Florida.

The Declarations Page, together with the application (if any), all endorsements, and the policy terms and conditions, constitute the entire agreement between the Named Insured and the Company with respect to the insurance provided hereunder.

•

SECTION 2: INSURING AGREEMENT — ALL-RISK COVERAGE GRANT

2.1 Coverage Grant

Subject to the terms, conditions, limitations, and exclusions of this Policy, the Company agrees to pay for direct physical loss of or damage to Covered Property caused by a Covered Cause of Loss occurring during the Policy Period.

"Covered Cause of Loss" means any risk of direct physical loss unless specifically excluded under the terms of this Policy or any endorsement attached hereto. The burden of proving that a loss resulted from a Covered Cause of Loss rests with the Named Insured. Once the Named Insured has established that a direct physical loss of or damage to Covered Property has occurred, the burden of proving the applicability of any exclusion rests with the Company.

This is an "all-risk" policy. The use of the term "all-risk" means that this Policy provides coverage for all risks of direct physical loss or damage that are not specifically excluded. It does not mean that every conceivable loss is covered. The Named Insured must demonstrate that the loss falls within the scope of the insuring agreement set forth in this Section 2.1 before the Company's obligation to indemnify arises.

2.2 Covered Property

"Covered Property" means all real and personal property owned by, leased by, or in which the Named Insured has an insurable interest, situated at the Covered Locations identified in Section 1.5 of the Declarations. Covered Property includes, but is not limited to, the following:

(a) Buildings and structures, including foundations, structural components, roofs, walls, floors, ceilings, and all permanently installed fixtures and fittings;

(b) Additions and extensions to buildings, whether completed or in the course of construction at the inception of the Policy Period;

(d) Furnishings, furniture, and decorative items;

(e) Machinery, equipment, and appliances, including but not limited to heating, ventilation, air conditioning, plumbing, electrical, and mechanical systems;

(f) Inventory, supplies, and stock in trade;

(g) Outdoor property, including fences, signs, awnings, satellite dishes, and landscaping (subject to applicable sub-limits);

(h) Personal property of guests of the Named Insured while located on the premises of a Covered Location (subject to a sub-limit of $50,000 per guest per occurrence); and

(i) Electronic data processing equipment, including servers, computer hardware, networking equipment, and telecommunications systems.

Covered Property does not include property that is specifically excluded elsewhere in this Policy or in any endorsement attached hereto.

[...]

SECTION 3: BUSINESS INTERRUPTION COVERAGE (ENDORSEMENT NO. 2)

ENDORSEMENT NO. 2

BUSINESS INTERRUPTION COVERAGE

Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022

It is agreed that the Policy is amended to include the following Business Interruption coverage:

3.1 Business Interruption Insuring Agreement

The Company will pay for the actual loss of Business Income the Named Insured sustains due to the necessary suspension of its operations during the Period of Restoration. The suspension must be caused by direct physical loss of or damage to Covered Property at a Covered Location caused by a Covered Cause of Loss occurring during the Policy Period. Payment shall be made for loss of Business Income that occurs within the Period of Restoration, as that term is defined in Endorsement No. 4.

"Suspension" means the slowdown or complete cessation of the Named Insured's business activities at the affected Covered Location. A "suspension" of operations need not be total; a partial slowdown in business activities resulting from direct physical loss or damage to Covered Property shall constitute a "suspension" within the meaning of this Endorsement, and the Company shall be liable for the proportionate loss of Business Income attributable to such partial suspension.

The Named Insured must demonstrate a causal connection between the direct physical loss of or damage to Covered Property and the suspension of operations for which Business Income recovery is sought. Loss of Business Income that would have occurred regardless of the direct physical loss or damage is not covered under this Endorsement.

3.2 Business Income Definition

"Business Income" means:

(a) Net Income (net profit or loss before income taxes) that would have been earned or incurred had no direct physical loss or damage occurred; and

(b) Continuing normal operating expenses incurred, including payroll, to the extent that such expenses must necessarily continue during the Period of Restoration in order to permit the Named Insured to resume operations with the same quality of service that existed immediately prior to the direct physical loss or damage.

In determining Business Income, due consideration shall be given to the experience of the business before the date of loss and the probable experience thereafter had no loss occurred. The Company shall give appropriate weight to the Named Insured's historical financial performance, seasonal and cyclical variations, trends in revenue and occupancy, existing reservations and contractual commitments, and any other relevant factors.

Business Income does not include income that would likely have been earned as a result of favorable business conditions or trends that are not reasonably documentable from historical data, including but not limited to speculative increases in room rates, unanticipated surges in demand, or projected new business that had not been contracted for or confirmed prior to the date of loss.

3.3 Business Interruption Limit

The maximum amount the Company will pay under this Endorsement for Business Interruption loss arising out of any one occurrence shall not exceed Twenty-Five Million Dollars ($25,000,000). This Per Occurrence Limit for Business Interruption is part of, and not in addition to, the Aggregate Annual Limit stated in the Declarations.

The Business Interruption Limit stated herein is subject to the Named Windstorm provisions set forth in Endorsement No. 7, if applicable. In the event that the Named Windstorm sub-limit set forth in Endorsement No. 7 applies to a given occurrence, the Named Windstorm sub-limit shall be the maximum amount payable for all covered losses, including Business Interruption, arising from that occurrence.

3.4 Extended Business Interruption

Coverage under this Endorsement extends for an additional period of up to ninety (90) days following the end of the Period of Restoration, to account for the additional time required to restore the Named Insured's business operations to the condition that would have existed had no direct physical loss or damage occurred (the "Extended Business Interruption Period"). The purpose of this provision is to compensate the Named Insured for the loss of Business Income attributable to the ramp-up period that is reasonably necessary to rebuild customer relationships, rehire and retrain staff, reestablish supply chains, and otherwise return the business to pre-loss operating levels.

The Extended Business Interruption Period shall commence immediately upon the expiration of the Period of Restoration, as defined in Endorsement No. 4. Payment for loss of Business Income during the Extended Business Interruption Period is subject to the overall Per Occurrence Business Interruption Limit of $25,000,000 set forth in Section 3.3 above and is not in addition to such limit.

During the Extended Business Interruption Period, the Named Insured shall continue to exercise due diligence in restoring its business to pre-loss conditions and shall take all reasonable steps to minimize the loss of Business Income.

3.5 Ordinary Payroll Limitation

"Ordinary Payroll" means payroll expenses for all employees of the Named Insured except officers, executives, department managers, employees under contract, and other essential employees specifically identified by the Named Insured and approved by the Company.

Ordinary Payroll expenses are covered under this Endorsement for a period of ninety (90) days from the date of direct physical loss or damage. After the expiration of this ninety (90) day period, Ordinary Payroll shall be excluded from the calculation of Business Income loss, unless the Named Insured can demonstrate to the reasonable satisfaction of the Company that retaining such employees beyond the ninety (90) day period was necessary and reasonable in order to resume operations at the affected Covered Location. In making such demonstration, the Named Insured shall provide documentation of the specific roles and responsibilities of the employees retained, the availability of replacement labor in the relevant market, and the anticipated timeline for resumption of operations.

The Ordinary Payroll Limitation set forth herein applies only to Ordinary Payroll as defined above. Payroll for officers, executives, department managers, and other essential employees shall continue to be included in the calculation of Business Income loss for the entire Period of Restoration, subject to the overall Business Interruption Limit.

•

SECTION 4: PERIOD OF RESTORATION (ENDORSEMENT NO. 4)

ENDORSEMENT NO. 4

PERIOD OF RESTORATION

Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022

It is agreed that the Policy is amended to include the following definition and provisions concerning the Period of Restoration:

4.1 Definition. "Period of Restoration" means the period of time that:

(a) Begins on the date of direct physical loss of or damage to Covered Property at a Covered Location caused by a Covered Cause of Loss occurring during the Policy Period; and

(b) Ends on the earlier of:

(i) The date when the Covered Property at the affected Covered Location should be repaired, rebuilt, or replaced with reasonable speed and similar quality to the condition that existed immediately prior to the direct physical loss or damage; or

(ii) The date when business is resumed at a new permanent location.

The Period of Restoration shall not be cut short by a partial resumption of operations. If the Named Insured resumes operations in whole or in part during the Period of Restoration, the amount of Business Income payable shall be reduced only to the extent of any income actually earned during such partial resumption of operations.

4.2 Reasonable Speed Standard

The determination of "reasonable speed" under Section 4.1(b)(i) shall take into account the actual conditions and circumstances prevailing at the time, including but not limited to the following factors:

(a) The availability of qualified labor, building materials, specialized equipment, and supplies in the affected geographic area;

(b) The scope, complexity, and nature of the required repairs, reconstruction, or replacement;

(c) The need to obtain governmental permits, approvals, and inspections, including but not limited to building permits, zoning approvals, environmental clearances, and certificates of occupancy;

(d) Access restrictions imposed by governmental authorities, including curfews, evacuation orders, road closures, and other restrictions on access to the affected Covered Location;

(e) The availability and responsiveness of contractors, architects, engineers, and other professionals necessary to complete the repair, reconstruction, or replacement;

(f) Delays attributable to adverse weather conditions, supply chain disruptions, or other conditions beyond the reasonable control of the Named Insured; and

(g) Any other conditions or circumstances beyond the reasonable control of the Named Insured that materially affect the time required to complete the repair, rebuilding, or replacement of the Covered Property.

The standard of "reasonable speed" does not require the Named Insured to incur extraordinary or unreasonable expense in order to expedite repairs or reconstruction, unless such expense is covered as an Extra Expense under Endorsement No. 3 and the Named Insured elects to incur such expense.

4.3 Exclusions from Period of Restoration

The Period of Restoration does not include any increased period of time required due to any of the following:

(a) The Named Insured's interference with, obstruction of, or failure to cooperate with the rebuilding, repair, or replacement process;

(b) Any delay caused by the Named Insured's failure to use due diligence and dispatch in restoring the Covered Property, including unreasonable delays in retaining contractors, obtaining bids, securing financing for repair work, or commencing construction;

(c) The enforcement of any ordinance, law, regulation, or building code that regulates the construction, use, or repair of any building or structure, or that requires the demolition of undamaged portions of a building or structure, unless Ordinance or Law coverage is expressly provided under a separate endorsement attached to this Policy; and

(d) Any period during which the Named Insured is unable to commence or continue repairs solely due to a dispute between the Named Insured and the Company regarding the scope, cost, or method of repair, provided that the Company has made its position known to the Named Insured in writing and has offered to participate in the resolution of such dispute in accordance with the terms of this Policy.

4.4 Commencement — Waiting Period

The Period of Restoration shall begin seventy-two (72) hours after the time of direct physical loss of or damage to Covered Property at the affected Covered Location (the "Waiting Period"). No Business Income or Extra Expense coverage shall be payable for loss sustained during the Waiting Period. The Waiting Period applies once per occurrence, regardless of the number of Covered Locations affected. For purposes of calculating the Waiting Period, the time of direct physical loss or damage shall be deemed to be the time at which the Covered Cause of Loss first causes direct physical loss of or damage to Covered Property at the affected Covered Location.

•

SECTION 5: NAMED WINDSTORM PROVISIONS (ENDORSEMENT NO. 7)

ENDORSEMENT NO. 7

NAMED WINDSTORM PROVISIONS

Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022

It is agreed that the Policy is amended to include the following Named Windstorm provisions:

5.1 Definition of Named Windstorm

"Named Windstorm" means any storm or weather disturbance that has been declared a hurricane, tropical storm, or tropical depression by the National Hurricane Center of the National Oceanic and Atmospheric Administration ("NOAA"), the National Weather Service, or any successor agency of the United States government, regardless of any subsequent reclassification, downgrade, or change in designation. A storm or weather disturbance shall be deemed a Named Windstorm from the time it is first declared to be a tropical depression, tropical storm, or hurricane by such authority through the time it is declared to have dissipated or is no longer tracked by such authority, and for purposes of this Policy, all loss or damage arising from such a storm or weather disturbance during such period shall be deemed to have been caused by a single Named Windstorm and shall constitute a single occurrence.

For the avoidance of doubt, the term "Named Windstorm" includes all wind, rain, hail, tornadoes, and other meteorological phenomena associated with or generated by the Named Windstorm, whether occurring before, during, or after the Named Windstorm makes landfall.

5.2 Named Windstorm Sub-Limit

Notwithstanding any other provision of this Policy, the total amount payable under this Policy for all loss or damage, including but not limited to property damage, Business Interruption, and Extra Expense, arising out of, resulting from, caused by, or attributable to a Named Windstorm, shall not exceed Fifteen Million Dollars ($15,000,000) per occurrence (the "Named Windstorm Sub-Limit").

The Named Windstorm Sub-Limit of $15,000,000 is the maximum amount the Company will pay for the totality of covered losses arising from a single Named Windstorm occurrence, regardless of the number of Covered Locations affected, the number of buildings or structures damaged, or the types of coverage triggered. The Named Windstorm Sub-Limit is part of, and not in addition to, the Aggregate Annual Limit stated in the Declarations.

5.3 Named Windstorm Deductible

For any loss arising out of a Named Windstorm, the applicable deductible shall be three percent (3%) of the total insurable value at each affected Covered Location as reported on the most recent Statement of Values provided by the Named Insured to the Company, subject to a minimum deductible of Five Hundred Thousand Dollars ($500,000) per occurrence (the "Named Windstorm Deductible").

The Named Windstorm Deductible shall be calculated separately for each affected Covered Location. Where a single Named Windstorm occurrence affects multiple Covered Locations, the Named Windstorm Deductible shall be the sum of the deductibles calculated for each affected Covered Location, subject to the minimum deductible of $500,000 per occurrence.

The Named Windstorm Deductible applies in lieu of, and not in addition to, the All Perils Deductible stated in Section 1.7 of the Declarations with respect to any loss arising from a Named Windstorm.

5.4 Application. The Named Windstorm Sub-Limit and Named Windstorm Deductible set forth in this Endorsement No. 7 apply in addition to, and not in lieu of, any other sub-limits, conditions, or exclusions contained in this Policy or in any other endorsement attached hereto. Where a Covered Cause of Loss involves or is alleged to involve both Named Windstorm and non-Named Windstorm components, the Company reserves the right to allocate the loss between the Named Windstorm and non-Named Windstorm components based upon such reasonable and supportable methodology as the Company may deem appropriate, including but not limited to engineering analysis, forensic investigation, and independent expert assessment.

In the event of a dispute between the Named Insured and the Company regarding the allocation of loss between Named Windstorm and non-Named Windstorm causes, such dispute shall be resolved in accordance with the applicable dispute resolution provisions of this Policy and the laws of the State of Florida.

Nothing in this Endorsement No. 7 shall be construed to provide coverage for any loss or damage that is otherwise excluded under the terms of this Policy, including but not limited to the Flood Exclusion set forth in Endorsement No. 6.

•

SECTION 6: EXCLUSIONS (ENDORSEMENT NO. 5)

ENDORSEMENT NO. 5

EXCLUSIONS

Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022

It is agreed that the Policy is amended to include the following exclusions:

6.1 General Exclusions Preamble

This Policy does not insure against loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. The exclusions set forth below apply to all coverages provided under this Policy, including but not limited to the coverage for property damage, Business Interruption, and Extra Expense, unless a specific endorsement attached to this Policy expressly provides otherwise.

6.2 Anti-Concurrent Causation Clause

Regardless of any other cause or event, whether or not insured under this Policy, that contributes concurrently or in any sequence to the loss or damage, the following exclusions apply. The Company shall not be liable for any loss or damage described in the exclusions set forth below, even if such loss or damage:

(a) would otherwise be covered under any other provision of this Policy;

(b) occurs simultaneously with a Covered Cause of Loss;

(c) occurs in any sequence with a Covered Cause of Loss, regardless of whether the excluded peril occurs before, during, or after the Covered Cause of Loss;

(d) would not have occurred but for a Covered Cause of Loss; or

(e) is alleged to have been caused, in whole or in part, by a Covered Cause of Loss operating concurrently, in sequence, or in combination with the excluded peril.

The Anti-Concurrent Causation Clause set forth in this Section 6.2 is intended to be read in conjunction with each individual exclusion set forth below. The scope and application of this clause shall be determined in accordance with the laws of the State of Florida.

6.3 Flood Exclusion (Endorsement No. 6 — Cross-Referenced)

The following Flood Exclusion is set forth in detail in Endorsement No. 6, which is attached to and made a part of this Policy. For the convenience of the reader, the material terms of the Flood Exclusion are reproduced in this Section 6.3:

"Flood" is defined as:

(a) The overflow of inland or tidal waters, whether or not driven by wind;

(b) The unusual and rapid accumulation or runoff of surface waters from any source;

(c) Mudflow, meaning a river of liquid and flowing mud on the surfaces of normally dry land areas, including earth carried by a current of water and deposited along the path of the current;

(d) Storm surge, including storm surge from a Named Windstorm or any other weather event, meaning a rise in water levels in coastal and other areas resulting from wind, barometric pressure changes, or other meteorological forces associated with a storm or weather disturbance, whether or not the storm constitutes a Named Windstorm; or

(e) Waves, tidal waves, or tsunami, regardless of cause or origin.

Exclusion: This Policy does not insure against loss or damage caused by Flood, as defined herein, regardless of whether the Flood results from, is associated with, or occurs in conjunction with any other peril, event, or Covered Cause of Loss. This exclusion applies to all direct physical loss of or damage to Covered Property caused by Flood, as well as to all Business Interruption and Extra Expense loss resulting from or attributable to Flood.

The Flood Exclusion set forth herein operates in conjunction with the Anti-Concurrent Causation Clause set forth in Section 6.2 of this Endorsement No. 5. Accordingly, loss or damage caused by Flood is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss, including but not limited to wind, rain, or any other Covered Cause of Loss.

6.4 Other Relevant Exclusions

In addition to the Flood Exclusion set forth in Section 6.3, this Policy does not insure against loss or damage caused directly or indirectly by any of the following (subject to the Anti-Concurrent Causation Clause set forth in Section 6.2):

(a) War and Military Action. War, including undeclared or civil war; warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign, or other authority using military personnel or other agents; insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of the foregoing.

(b) Nuclear Hazard. Nuclear reaction, nuclear radiation, or radioactive contamination, however caused, or any consequence of any of these. This exclusion applies regardless of whether the nuclear hazard occurs naturally or is otherwise caused or contributed to by human activity. Loss by fire resulting from a nuclear hazard is not excluded under this provision.

(c) Government Action. Seizure, confiscation, nationalization, or destruction of Covered Property by order of any governmental authority, except as provided in this Policy with respect to actions taken at the time of a fire to prevent its spread.

(d) Earth Movement. Earthquake, volcanic eruption, landslide, mudslide, subsidence, sinkhole, or any other earth movement, whether natural or man-made. However, if fire or explosion ensues as a result of earth movement, the Company will pay for the ensuing loss or damage caused by the fire or explosion.

(e) Wear, Tear, Deterioration, and Inherent Vice. Gradual deterioration, wear and tear, inherent vice, latent defect, rust, corrosion, decay, or depreciation, regardless of whether such condition accelerates or is accelerated by a Covered Cause of Loss.

(f) Pollution or Contamination. Discharge, dispersal, seepage, migration, release, or escape of pollutants or contaminants, unless the discharge or release is itself caused by a Covered Cause of Loss and occurs as a direct result of such Covered Cause of Loss.

(g) Electrical or Mechanical Breakdown. Electrical or mechanical breakdown, failure, or malfunction, including but not limited to power surge or interruption, unless fire or explosion ensues, in which case the Company will pay only for the ensuing loss caused by the fire or explosion.

(h) Mold, Fungus, Wet Rot, or Dry Rot. The presence, growth, proliferation, spread, or activity of mold, mildew, fungus, spores, wet rot, or dry rot, except when such condition results directly from a Covered Cause of Loss and occurs within a reasonable period of time following the Covered Cause of Loss. In no event shall the Company's liability for mold, fungus, wet rot, or dry rot exceed the applicable sub-limit stated in the Declarations or any endorsement attached hereto.

(i) Voluntary Parting with Property. Voluntary parting with any property by the Named Insured or anyone else to whom the property may be entrusted, if induced to do so by any fraudulent scheme, trick, device, or false pretense.

(j) Loss of Data or Software. Loss, alteration, destruction, or corruption of electronic data or software, except for physical damage to the tangible media on which such data or software is stored. This exclusion does not apply to the extent that the loss of data or software is a direct result of physical damage to electronic data processing equipment caused by a Covered Cause of Loss.

[...]

Additional exclusions are set forth in the full Policy but are not reproduced in these excerpts.

•

SECTION 7: DUTIES AFTER LOSS (ENDORSEMENT NO. 8 — EXCERPTED PROVISIONS)

ENDORSEMENT NO. 8

EXHIBIT A
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL CIVIL DIVISION
_________/
Excerpts from Primary All-Risk Property and Business Interruption Insurance Policy Issued by Ironclad Indemnity Corporation
Policy Number: IIC-PRP-2022-07541
PREFATORY NOTE
The following pages constitute true and correct excerpted portions of the primary All-Risk Property and Business Interruption Insurance Policy, Policy Number IIC-PRP-2022-07541, issued by Defendant Ironclad Indemnity Corporation to Plaintiff Verimark Hospitality Group Inc. (the "Policy"). These excerpts are attached hereto as Exhibit A to the Complaint filed by Plaintiff in the above-styled action.
Pages and provisions of the Policy not directly relevant to the claims at issue in this litigation have been omitted for the convenience of the Court and the parties. All omissions are indicated by the notation "[...]" or by a series of asterisks ("   * "). The omission of any provision, endorsement, or page shall not be construed as an admission by any party that such omitted material is irrelevant, immaterial, or otherwise waived. The full and complete Policy, as issued by Ironclad Indemnity Corporation and in the possession of the parties, is available for inspection upon request directed to counsel for Plaintiff.
The excerpts reproduced herein reflect the Policy as issued and delivered by Ironclad Indemnity Corporation. All formatting, including section numbering, headings, defined terms, and endorsement references, has been reproduced as faithfully as practicable from the original policy document.
IRONCLAD INDEMNITY CORPORATION
ALL-RISK PROPERTY AND BUSINESS INTERRUPTION INSURANCE POLICY
DECLARATIONS PAGE
Policy Number: IIC-PRP-2022-07541
SECTION 1: DECLARATIONS
1.1 Named Insured
Named Insured: Verimark Hospitality Group Inc.
Mailing Address: 1900 Brickell Avenue, Suite 3200, Miami, Florida 33129
Entity Type: Corporation organized and existing under the laws of the State of Delaware, authorized to transact business in the State of Florida.
Federal Employer Identification Number (FEIN): 59-3841276
1.2 Policy Number and Policy Period
Policy Number: IIC-PRP-2022-07541
Policy Period: From July 1, 2022 to July 1, 2023
Both dates at 12:01 A.M. standard time at the mailing address of the Named Insured shown above. The Policy Period shall commence and expire at the times and on the dates stated herein, unless earlier terminated or canceled in accordance with the provisions of this Policy.
1.3 Issuing Company
Ironclad Indemnity Corporation 55 Constitution Boulevard Hartford, Connecticut 06103
NAIC Number: 20537
Ironclad Indemnity Corporation is a stock insurance company organized under the laws of the State of Connecticut and duly authorized to transact insurance business in the State of Florida.
1.4 Policy Type
All-Risk Property Insurance Policy — Including Business Interruption and Extra Expense
This policy insures against all risks of direct physical loss of or damage to Covered Property, except as hereinafter excluded. This Policy includes coverage for Business Interruption and Extra Expense, subject to the terms, conditions, sub-limits, endorsements, and exclusions set forth herein and in the endorsements attached hereto and made a part hereof.
1.5 Covered Locations (Schedule of Insured Properties)
The following Covered Locations are insured under this Policy. The Named Insured's insurable interest in each location is as described below. Total Insurable Values ("TIV") are as reported by the Named Insured and accepted by the Company for underwriting purposes.
[...]
Additional Covered Locations are listed in the complete Schedule of Insured Properties attached to the Policy. Such additional locations have been omitted from these excerpts as they are not directly at issue in this litigation.
1.6 Limits of Insurance
The following Limits of Insurance apply to this Policy, subject to all applicable sub-limits, deductibles, endorsements, terms, and conditions:
The Aggregate Annual Limit is the maximum amount the Company will pay for all covered losses occurring during the Policy Period, regardless of the number of occurrences. The Per Occurrence Limits stated above are part of, and not in addition to, the Aggregate Annual Limit.
1.7 Deductible.  
The deductible shall be applied to the total amount of covered loss from any one occurrence before any payment is made under this Policy.
1.8 Premium.  Annual Premium: $980,000.00
Premium is fully earned upon inception of the Policy Period. Applicable taxes, surcharges, and assessments are in addition to the stated premium and shall be the responsibility of the Named Insured.
1.9 Insurance Broker of Record
Tidewater Risk Advisors LLC 2600 S. Bayshore Drive, Suite 800 Miami, Florida 33133
Account Executive: Franklin Orde
The Broker of Record listed herein is authorized to act on behalf of the Named Insured in matters relating to the placement and servicing of this Policy, including but not limited to the submission of applications, endorsements, and correspondence. The Company may rely upon instructions and representations made by the Broker of Record as if made by the Named Insured, unless the Company has received written notice to the contrary from the Named Insured.
1.10 Forms and Endorsements Applicable
The following forms and endorsements are attached to and made a part of this Policy at inception. In the event of any conflict between the provisions of this Declarations Page and the provisions of any endorsement, the endorsement shall control:
Endorsement No. 1: Covered Property Definition
Endorsement No. 2: Business Interruption Coverage
Endorsement No. 3: Extra Expense Coverage
Endorsement No. 4: Period of Restoration
Endorsement No. 5: Exclusions
Endorsement No. 6: Flood Exclusion
Endorsement No. 7: Named Windstorm Provisions
Endorsement No. 8: Duties After Loss
Endorsement No. 9: Valuation
Endorsement No. 10: Other Insurance / Excess Layer Coordination
[...]
Additional endorsements are listed in the full Policy but are not excerpted herein.
1.11 Governing Law
This Policy shall be construed and interpreted in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. Any dispute arising out of or relating to this Policy shall be subject to the jurisdiction of the courts of the State of Florida.
The Declarations Page, together with the application (if any), all endorsements, and the policy terms and conditions, constitute the entire agreement between the Named Insured and the Company with respect to the insurance provided hereunder.
•   
SECTION 2: INSURING AGREEMENT — ALL-RISK COVERAGE GRANT
2.1 Coverage Grant
Subject to the terms, conditions, limitations, and exclusions of this Policy, the Company agrees to pay for direct physical loss of or damage to Covered Property caused by a Covered Cause of Loss occurring during the Policy Period.
"Covered Cause of Loss" means any risk of direct physical loss unless specifically excluded under the terms of this Policy or any endorsement attached hereto. The burden of proving that a loss resulted from a Covered Cause of Loss rests with the Named Insured. Once the Named Insured has established that a direct physical loss of or damage to Covered Property has occurred, the burden of proving the applicability of any exclusion rests with the Company.
This is an "all-risk" policy. The use of the term "all-risk" means that this Policy provides coverage for all risks of direct physical loss or damage that are not specifically excluded. It does not mean that every conceivable loss is covered. The Named Insured must demonstrate that the loss falls within the scope of the insuring agreement set forth in this Section 2.1 before the Company's obligation to indemnify arises.
2.2 Covered Property
"Covered Property" means all real and personal property owned by, leased by, or in which the Named Insured has an insurable interest, situated at the Covered Locations identified in Section 1.5 of the Declarations. Covered Property includes, but is not limited to, the following:
(a) Buildings and structures, including foundations, structural components, roofs, walls, floors, ceilings, and all permanently installed fixtures and fittings;
(b) Additions and extensions to buildings, whether completed or in the course of construction at the inception of the Policy Period;
(c) Fixtures, fittings, and tenant improvements and betterments installed by or at the expense of the Named Insured;
(d) Furnishings, furniture, and decorative items;
(e) Machinery, equipment, and appliances, including but not limited to heating, ventilation, air conditioning, plumbing, electrical, and mechanical systems;
(f) Inventory, supplies, and stock in trade;
(g) Outdoor property, including fences, signs, awnings, satellite dishes, and landscaping (subject to applicable sub-limits);
(h) Personal property of guests of the Named Insured while located on the premises of a Covered Location (subject to a sub-limit of $50,000 per guest per occurrence); and
(i) Electronic data processing equipment, including servers, computer hardware, networking equipment, and telecommunications systems.
Covered Property does not include property that is specifically excluded elsewhere in this Policy or in any endorsement attached hereto.
[...]
SECTION 3: BUSINESS INTERRUPTION COVERAGE (ENDORSEMENT NO. 2)
ENDORSEMENT NO. 2
BUSINESS INTERRUPTION COVERAGE
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following Business Interruption coverage:
3.1 Business Interruption Insuring Agreement
The Company will pay for the actual loss of Business Income the Named Insured sustains due to the necessary suspension of its operations during the Period of Restoration. The suspension must be caused by direct physical loss of or damage to Covered Property at a Covered Location caused by a Covered Cause of Loss occurring during the Policy Period. Payment shall be made for loss of Business Income that occurs within the Period of Restoration, as that term is defined in Endorsement No. 4.
"Suspension" means the slowdown or complete cessation of the Named Insured's business activities at the affected Covered Location. A "suspension" of operations need not be total; a partial slowdown in business activities resulting from direct physical loss or damage to Covered Property shall constitute a "suspension" within the meaning of this Endorsement, and the Company shall be liable for the proportionate loss of Business Income attributable to such partial suspension.
The Named Insured must demonstrate a causal connection between the direct physical loss of or damage to Covered Property and the suspension of operations for which Business Income recovery is sought. Loss of Business Income that would have occurred regardless of the direct physical loss or damage is not covered under this Endorsement.
3.2 Business Income Definition
"Business Income" means:
(a) Net Income (net profit or loss before income taxes) that would have been earned or incurred had no direct physical loss or damage occurred; and
(b) Continuing normal operating expenses incurred, including payroll, to the extent that such expenses must necessarily continue during the Period of Restoration in order to permit the Named Insured to resume operations with the same quality of service that existed immediately prior to the direct physical loss or damage.
In determining Business Income, due consideration shall be given to the experience of the business before the date of loss and the probable experience thereafter had no loss occurred. The Company shall give appropriate weight to the Named Insured's historical financial performance, seasonal and cyclical variations, trends in revenue and occupancy, existing reservations and contractual commitments, and any other relevant factors.
Business Income does not include income that would likely have been earned as a result of favorable business conditions or trends that are not reasonably documentable from historical data, including but not limited to speculative increases in room rates, unanticipated surges in demand, or projected new business that had not been contracted for or confirmed prior to the date of loss.
3.3 Business Interruption Limit
The maximum amount the Company will pay under this Endorsement for Business Interruption loss arising out of any one occurrence shall not exceed Twenty-Five Million Dollars ($25,000,000). This Per Occurrence Limit for Business Interruption is part of, and not in addition to, the Aggregate Annual Limit stated in the Declarations.
The Business Interruption Limit stated herein is subject to the Named Windstorm provisions set forth in Endorsement No. 7, if applicable. In the event that the Named Windstorm sub-limit set forth in Endorsement No. 7 applies to a given occurrence, the Named Windstorm sub-limit shall be the maximum amount payable for all covered losses, including Business Interruption, arising from that occurrence.
3.4 Extended Business Interruption
Coverage under this Endorsement extends for an additional period of up to ninety (90) days following the end of the Period of Restoration, to account for the additional time required to restore the Named Insured's business operations to the condition that would have existed had no direct physical loss or damage occurred (the "Extended Business Interruption Period"). The purpose of this provision is to compensate the Named Insured for the loss of Business Income attributable to the ramp-up period that is reasonably necessary to rebuild customer relationships, rehire and retrain staff, reestablish supply chains, and otherwise return the business to pre-loss operating levels.
The Extended Business Interruption Period shall commence immediately upon the expiration of the Period of Restoration, as defined in Endorsement No. 4. Payment for loss of Business Income during the Extended Business Interruption Period is subject to the overall Per Occurrence Business Interruption Limit of $25,000,000 set forth in Section 3.3 above and is not in addition to such limit.
During the Extended Business Interruption Period, the Named Insured shall continue to exercise due diligence in restoring its business to pre-loss conditions and shall take all reasonable steps to minimize the loss of Business Income.
3.5 Ordinary Payroll Limitation
"Ordinary Payroll" means payroll expenses for all employees of the Named Insured except officers, executives, department managers, employees under contract, and other essential employees specifically identified by the Named Insured and approved by the Company.
Ordinary Payroll expenses are covered under this Endorsement for a period of ninety (90) days from the date of direct physical loss or damage. After the expiration of this ninety (90) day period, Ordinary Payroll shall be excluded from the calculation of Business Income loss, unless the Named Insured can demonstrate to the reasonable satisfaction of the Company that retaining such employees beyond the ninety (90) day period was necessary and reasonable in order to resume operations at the affected Covered Location. In making such demonstration, the Named Insured shall provide documentation of the specific roles and responsibilities of the employees retained, the availability of replacement labor in the relevant market, and the anticipated timeline for resumption of operations.
The Ordinary Payroll Limitation set forth herein applies only to Ordinary Payroll as defined above. Payroll for officers, executives, department managers, and other essential employees shall continue to be included in the calculation of Business Income loss for the entire Period of Restoration, subject to the overall Business Interruption Limit.
•   
SECTION 4: PERIOD OF RESTORATION (ENDORSEMENT NO. 4)
ENDORSEMENT NO. 4
PERIOD OF RESTORATION
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following definition and provisions concerning the Period of Restoration:
4.1 Definition.  "Period of Restoration" means the period of time that:
(a) Begins on the date of direct physical loss of or damage to Covered Property at a Covered Location caused by a Covered Cause of Loss occurring during the Policy Period; and
(b) Ends on the earlier of:
(i) The date when the Covered Property at the affected Covered Location should be repaired, rebuilt, or replaced with reasonable speed and similar quality to the condition that existed immediately prior to the direct physical loss or damage; or
(ii) The date when business is resumed at a new permanent location.
The Period of Restoration shall not be cut short by a partial resumption of operations. If the Named Insured resumes operations in whole or in part during the Period of Restoration, the amount of Business Income payable shall be reduced only to the extent of any income actually earned during such partial resumption of operations.
4.2 Reasonable Speed Standard
The determination of "reasonable speed" under Section 4.1(b)(i) shall take into account the actual conditions and circumstances prevailing at the time, including but not limited to the following factors:
(a) The availability of qualified labor, building materials, specialized equipment, and supplies in the affected geographic area;
(b) The scope, complexity, and nature of the required repairs, reconstruction, or replacement;
(c) The need to obtain governmental permits, approvals, and inspections, including but not limited to building permits, zoning approvals, environmental clearances, and certificates of occupancy;
(d) Access restrictions imposed by governmental authorities, including curfews, evacuation orders, road closures, and other restrictions on access to the affected Covered Location;
(e) The availability and responsiveness of contractors, architects, engineers, and other professionals necessary to complete the repair, reconstruction, or replacement;
(f) Delays attributable to adverse weather conditions, supply chain disruptions, or other conditions beyond the reasonable control of the Named Insured; and
(g) Any other conditions or circumstances beyond the reasonable control of the Named Insured that materially affect the time required to complete the repair, rebuilding, or replacement of the Covered Property.
The standard of "reasonable speed" does not require the Named Insured to incur extraordinary or unreasonable expense in order to expedite repairs or reconstruction, unless such expense is covered as an Extra Expense under Endorsement No. 3 and the Named Insured elects to incur such expense.
4.3 Exclusions from Period of Restoration
The Period of Restoration does not include any increased period of time required due to any of the following:
(a) The Named Insured's interference with, obstruction of, or failure to cooperate with the rebuilding, repair, or replacement process;
(b) Any delay caused by the Named Insured's failure to use due diligence and dispatch in restoring the Covered Property, including unreasonable delays in retaining contractors, obtaining bids, securing financing for repair work, or commencing construction;
(c) The enforcement of any ordinance, law, regulation, or building code that regulates the construction, use, or repair of any building or structure, or that requires the demolition of undamaged portions of a building or structure, unless Ordinance or Law coverage is expressly provided under a separate endorsement attached to this Policy; and
(d) Any period during which the Named Insured is unable to commence or continue repairs solely due to a dispute between the Named Insured and the Company regarding the scope, cost, or method of repair, provided that the Company has made its position known to the Named Insured in writing and has offered to participate in the resolution of such dispute in accordance with the terms of this Policy.
4.4 Commencement — Waiting Period
The Period of Restoration shall begin seventy-two (72) hours after the time of direct physical loss of or damage to Covered Property at the affected Covered Location (the "Waiting Period"). No Business Income or Extra Expense coverage shall be payable for loss sustained during the Waiting Period. The Waiting Period applies once per occurrence, regardless of the number of Covered Locations affected. For purposes of calculating the Waiting Period, the time of direct physical loss or damage shall be deemed to be the time at which the Covered Cause of Loss first causes direct physical loss of or damage to Covered Property at the affected Covered Location.
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SECTION 5: NAMED WINDSTORM PROVISIONS (ENDORSEMENT NO. 7)
ENDORSEMENT NO. 7
NAMED WINDSTORM PROVISIONS
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following Named Windstorm provisions:
5.1 Definition of Named Windstorm
"Named Windstorm" means any storm or weather disturbance that has been declared a hurricane, tropical storm, or tropical depression by the National Hurricane Center of the National Oceanic and Atmospheric Administration ("NOAA"), the National Weather Service, or any successor agency of the United States government, regardless of any subsequent reclassification, downgrade, or change in designation. A storm or weather disturbance shall be deemed a Named Windstorm from the time it is first declared to be a tropical depression, tropical storm, or hurricane by such authority through the time it is declared to have dissipated or is no longer tracked by such authority, and for purposes of this Policy, all loss or damage arising from such a storm or weather disturbance during such period shall be deemed to have been caused by a single Named Windstorm and shall constitute a single occurrence.
For the avoidance of doubt, the term "Named Windstorm" includes all wind, rain, hail, tornadoes, and other meteorological phenomena associated with or generated by the Named Windstorm, whether occurring before, during, or after the Named Windstorm makes landfall.
5.2 Named Windstorm Sub-Limit
Notwithstanding any other provision of this Policy, the total amount payable under this Policy for all loss or damage, including but not limited to property damage, Business Interruption, and Extra Expense, arising out of, resulting from, caused by, or attributable to a Named Windstorm, shall not exceed Fifteen Million Dollars ($15,000,000) per occurrence (the "Named Windstorm Sub-Limit").
The Named Windstorm Sub-Limit of $15,000,000 is the maximum amount the Company will pay for the totality of covered losses arising from a single Named Windstorm occurrence, regardless of the number of Covered Locations affected, the number of buildings or structures damaged, or the types of coverage triggered. The Named Windstorm Sub-Limit is part of, and not in addition to, the Aggregate Annual Limit stated in the Declarations.
5.3 Named Windstorm Deductible
For any loss arising out of a Named Windstorm, the applicable deductible shall be three percent (3%) of the total insurable value at each affected Covered Location as reported on the most recent Statement of Values provided by the Named Insured to the Company, subject to a minimum deductible of Five Hundred Thousand Dollars ($500,000) per occurrence (the "Named Windstorm Deductible").
The Named Windstorm Deductible shall be calculated separately for each affected Covered Location. Where a single Named Windstorm occurrence affects multiple Covered Locations, the Named Windstorm Deductible shall be the sum of the deductibles calculated for each affected Covered Location, subject to the minimum deductible of $500,000 per occurrence.
The Named Windstorm Deductible applies in lieu of, and not in addition to, the All Perils Deductible stated in Section 1.7 of the Declarations with respect to any loss arising from a Named Windstorm.
5.4 Application.  The Named Windstorm Sub-Limit and Named Windstorm Deductible set forth in this Endorsement No. 7 apply in addition to, and not in lieu of, any other sub-limits, conditions, or exclusions contained in this Policy or in any other endorsement attached hereto. Where a Covered Cause of Loss involves or is alleged to involve both Named Windstorm and non-Named Windstorm components, the Company reserves the right to allocate the loss between the Named Windstorm and non-Named Windstorm components based upon such reasonable and supportable methodology as the Company may deem appropriate, including but not limited to engineering analysis, forensic investigation, and independent expert assessment.
In the event of a dispute between the Named Insured and the Company regarding the allocation of loss between Named Windstorm and non-Named Windstorm causes, such dispute shall be resolved in accordance with the applicable dispute resolution provisions of this Policy and the laws of the State of Florida.
Nothing in this Endorsement No. 7 shall be construed to provide coverage for any loss or damage that is otherwise excluded under the terms of this Policy, including but not limited to the Flood Exclusion set forth in Endorsement No. 6.
•   
SECTION 6: EXCLUSIONS (ENDORSEMENT NO. 5)
ENDORSEMENT NO. 5
EXCLUSIONS
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following exclusions:
6.1 General Exclusions Preamble
This Policy does not insure against loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. The exclusions set forth below apply to all coverages provided under this Policy, including but not limited to the coverage for property damage, Business Interruption, and Extra Expense, unless a specific endorsement attached to this Policy expressly provides otherwise.
6.2 Anti-Concurrent Causation Clause
Regardless of any other cause or event, whether or not insured under this Policy, that contributes concurrently or in any sequence to the loss or damage, the following exclusions apply. The Company shall not be liable for any loss or damage described in the exclusions set forth below, even if such loss or damage:
(a) would otherwise be covered under any other provision of this Policy;
(b) occurs simultaneously with a Covered Cause of Loss;
(c) occurs in any sequence with a Covered Cause of Loss, regardless of whether the excluded peril occurs before, during, or after the Covered Cause of Loss;
(d) would not have occurred but for a Covered Cause of Loss; or
(e) is alleged to have been caused, in whole or in part, by a Covered Cause of Loss operating concurrently, in sequence, or in combination with the excluded peril.
The Anti-Concurrent Causation Clause set forth in this Section 6.2 is intended to be read in conjunction with each individual exclusion set forth below. The scope and application of this clause shall be determined in accordance with the laws of the State of Florida.
6.3 Flood Exclusion (Endorsement No. 6 — Cross-Referenced)
The following Flood Exclusion is set forth in detail in Endorsement No. 6, which is attached to and made a part of this Policy. For the convenience of the reader, the material terms of the Flood Exclusion are reproduced in this Section 6.3:
"Flood" is defined as:
(a) The overflow of inland or tidal waters, whether or not driven by wind;
(b) The unusual and rapid accumulation or runoff of surface waters from any source;
(c) Mudflow, meaning a river of liquid and flowing mud on the surfaces of normally dry land areas, including earth carried by a current of water and deposited along the path of the current;
(d) Storm surge, including storm surge from a Named Windstorm or any other weather event, meaning a rise in water levels in coastal and other areas resulting from wind, barometric pressure changes, or other meteorological forces associated with a storm or weather disturbance, whether or not the storm constitutes a Named Windstorm; or
(e) Waves, tidal waves, or tsunami, regardless of cause or origin.
Exclusion: This Policy does not insure against loss or damage caused by Flood, as defined herein, regardless of whether the Flood results from, is associated with, or occurs in conjunction with any other peril, event, or Covered Cause of Loss. This exclusion applies to all direct physical loss of or damage to Covered Property caused by Flood, as well as to all Business Interruption and Extra Expense loss resulting from or attributable to Flood.
The Flood Exclusion set forth herein operates in conjunction with the Anti-Concurrent Causation Clause set forth in Section 6.2 of this Endorsement No. 5. Accordingly, loss or damage caused by Flood is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss, including but not limited to wind, rain, or any other Covered Cause of Loss.
6.4 Other Relevant Exclusions
In addition to the Flood Exclusion set forth in Section 6.3, this Policy does not insure against loss or damage caused directly or indirectly by any of the following (subject to the Anti-Concurrent Causation Clause set forth in Section 6.2):
(a) War and Military Action. War, including undeclared or civil war; warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign, or other authority using military personnel or other agents; insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of the foregoing.
(b) Nuclear Hazard. Nuclear reaction, nuclear radiation, or radioactive contamination, however caused, or any consequence of any of these. This exclusion applies regardless of whether the nuclear hazard occurs naturally or is otherwise caused or contributed to by human activity. Loss by fire resulting from a nuclear hazard is not excluded under this provision.
(c) Government Action. Seizure, confiscation, nationalization, or destruction of Covered Property by order of any governmental authority, except as provided in this Policy with respect to actions taken at the time of a fire to prevent its spread.
(d) Earth Movement. Earthquake, volcanic eruption, landslide, mudslide, subsidence, sinkhole, or any other earth movement, whether natural or man-made. However, if fire or explosion ensues as a result of earth movement, the Company will pay for the ensuing loss or damage caused by the fire or explosion.
(e) Wear, Tear, Deterioration, and Inherent Vice. Gradual deterioration, wear and tear, inherent vice, latent defect, rust, corrosion, decay, or depreciation, regardless of whether such condition accelerates or is accelerated by a Covered Cause of Loss.
(f) Pollution or Contamination. Discharge, dispersal, seepage, migration, release, or escape of pollutants or contaminants, unless the discharge or release is itself caused by a Covered Cause of Loss and occurs as a direct result of such Covered Cause of Loss.
(g) Electrical or Mechanical Breakdown. Electrical or mechanical breakdown, failure, or malfunction, including but not limited to power surge or interruption, unless fire or explosion ensues, in which case the Company will pay only for the ensuing loss caused by the fire or explosion.
(h) Mold, Fungus, Wet Rot, or Dry Rot. The presence, growth, proliferation, spread, or activity of mold, mildew, fungus, spores, wet rot, or dry rot, except when such condition results directly from a Covered Cause of Loss and occurs within a reasonable period of time following the Covered Cause of Loss. In no event shall the Company's liability for mold, fungus, wet rot, or dry rot exceed the applicable sub-limit stated in the Declarations or any endorsement attached hereto.
(i) Voluntary Parting with Property. Voluntary parting with any property by the Named Insured or anyone else to whom the property may be entrusted, if induced to do so by any fraudulent scheme, trick, device, or false pretense.
(j) Loss of Data or Software. Loss, alteration, destruction, or corruption of electronic data or software, except for physical damage to the tangible media on which such data or software is stored. This exclusion does not apply to the extent that the loss of data or software is a direct result of physical damage to electronic data processing equipment caused by a Covered Cause of Loss.
[...]
Additional exclusions are set forth in the full Policy but are not reproduced in these excerpts.
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SECTION 7: DUTIES AFTER LOSS (ENDORSEMENT NO. 8 — EXCERPTED PROVISIONS)
ENDORSEMENT NO. 8
DUTIES AFTER LOSS
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following provisions regarding the Named Insured's duties following a loss:
7.1 Notice of Loss
In the event of direct physical loss of or damage to Covered Property, the Named Insured shall provide prompt written notice of the loss to the Company. Notice shall be given as soon as reasonably practicable after the Named Insured discovers the loss or damage, but in no event later than thirty (30) days after the date of loss, unless the Named Insured can demonstrate that the delay in providing notice was caused by circumstances beyond its reasonable control.
The notice of loss shall include, at a minimum, the following information:
(a) The date and time of the loss or damage, or the Named Insured's best estimate thereof;
(b) A general description of the nature and extent of the damage to Covered Property;
(c) The Covered Location(s) affected;
(d) A preliminary estimate of the amount of loss, if available;
(e) The name and contact information of the person at the Named Insured's organization responsible for handling the claim; and
(f) A description of any immediate steps taken by the Named Insured to protect Covered Property from further damage or to mitigate the loss.
Notice shall be directed to Ironclad Indemnity Corporation, Claims Department, 55 Constitution Boulevard, Hartford, CT 06103, or to such other address as the Company may designate in writing from time to time.
7.2 Protection of Property / Duty to Mitigate
Following a loss, the Named Insured shall take all reasonable steps to protect Covered Property from further damage. The Named Insured's obligation to protect Covered Property applies regardless of whether the Company has accepted or denied the claim. The Company shall reimburse the Named Insured for reasonable expenses incurred in protecting Covered Property from further damage, provided that such expenses are incurred as a direct result of a Covered Cause of Loss and are not otherwise excluded under this Policy.
In addition to the duty to protect Covered Property, the Named Insured shall use all reasonable means to minimize the Business Interruption loss, including but not limited to:
(a) Resuming operations, in whole or in part, at the affected Covered Location or at any available alternate location, as soon as reasonably practicable following the loss;
(b) Making use of other available property, facilities, equipment, or services, whether owned, leased, or otherwise available to the Named Insured, to maintain or restore business operations to the extent reasonably possible;
(c) Using due diligence to repair or restore Covered Property with reasonable speed, including promptly retaining qualified contractors, obtaining necessary permits, and commencing construction or repair work as soon as conditions permit; and
(d) Taking such other steps as a reasonable and prudent businessperson would take under the circumstances to minimize the interruption of business operations and the resulting loss of Business Income.
The Named Insured's failure to comply with the duty to mitigate set forth in this Section 7.2 shall not void coverage, but the Company shall not be liable for any additional loss that the Named Insured could have avoided by the exercise of reasonable diligence.
7.3 Proof of Loss
The Named Insured shall submit a signed and sworn Proof of Loss to the Company within ninety (90) days of the date of direct physical loss or damage, or within such longer period as the Company may allow in writing. The Proof of Loss shall be submitted on forms provided by the Company or in such other form as the Company may reasonably accept, and shall include the following:
(a) An itemized statement of the loss, setting forth in detail the quantity, description, and value of each item of Covered Property lost or damaged;
(b) Supporting documentation for any Business Income claim, including historical financial data, tax returns, profit and loss statements, revenue reports, occupancy records, reservation data, and such other information as the Company may reasonably request to evaluate the claim;
(c) Copies of all contracts, agreements, and other documents relevant to the claim;
(d) A complete description of the efforts undertaken by the Named Insured to mitigate the loss and to resume operations;
(e) Access to the Named Insured's books, records, accounts, invoices, receipts, and other documentation necessary for the Company to evaluate and adjust the claim; and
(f) Such other information and documentation as the Company may reasonably require.
The Named Insured's failure to submit a timely Proof of Loss shall not constitute a forfeiture of coverage unless the Company can demonstrate that it has been materially prejudiced by such failure. The Company may waive or extend the time for submission of a Proof of Loss in writing.
7.4 Cooperation and Examination Under Oath
The Named Insured shall cooperate fully with the Company's investigation and adjustment of any loss, including but not limited to making available all employees, officers, and agents of the Named Insured for interviews and discussions regarding the claim. The Named Insured shall submit to examination under oath, if requested by the Company, as often as may be reasonably required, and shall sign the transcripts of such examinations. The Named Insured shall produce for examination all books of account, bills, invoices, vouchers, contracts, records, and other documents as may be reasonably requested by the Company in connection with the investigation and adjustment of the claim.
The Company's request for an examination under oath shall be made in writing and shall specify the time, place, and general subject matter of the examination. The Named Insured shall have the right to be represented by legal counsel at any examination under oath.
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SECTION 8: OTHER INSURANCE / EXCESS LAYER COORDINATION (ENDORSEMENT NO. 10 — EXCERPTED)
ENDORSEMENT NO. 10
OTHER INSURANCE / EXCESS LAYER COORDINATION
Attached to and forming a part of Policy No. IIC-PRP-2022-07541 Issued by Ironclad Indemnity Corporation Effective Date: July 1, 2022
It is agreed that the Policy is amended to include the following provisions regarding other insurance and coordination with excess layers:
8.1 Excess Insurance
If the Named Insured has other valid and collectible insurance, including excess or umbrella policies, that applies to a loss covered under this Policy, this Policy shall be primary and non-contributory. The Company's obligation to pay under this Policy shall not be affected by the existence of any other insurance, whether collectible or not, except as specifically provided in this Endorsement.
The Company's liability under this Policy shall not exceed the applicable Limit of Insurance stated in the Declarations, regardless of the existence of other insurance. In no event shall the Named Insured be entitled to recover more than the total amount of its actual loss, nor shall the Named Insured recover from the Company and from all other insurers combined an amount in excess of the actual loss sustained.
8.2 Coordination with Excess Layers
The Named Insured has represented to the Company that its insurance program for the Policy Period includes one or more excess layers of insurance that are intended to attach above the limits of this Policy. The Company acknowledges such representation but makes no warranty or representation as to the existence, validity, collectability, or terms of any such excess policies.
The Company shall have no obligation to pay any amount in excess of its stated Limits of Insurance, nor shall the Company be liable for any loss or damage that falls within the coverage of an excess layer. The exhaustion of this Policy's Limits of Insurance by payment of covered losses shall be deemed to trigger the attachment of the first excess layer in the Named Insured's insurance program, subject to the terms and conditions of such excess layer.
The Company shall cooperate reasonably with the Named Insured and with excess layer insurers in the adjustment and settlement of claims that may involve or affect multiple layers of the Named Insured's insurance program. However, such cooperation shall not be construed as an admission of liability by the Company for any amount in excess of this Policy's Limits of Insurance, nor shall it create any obligation on the part of the Company to defer to or follow the coverage decisions of any excess layer insurer.
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SECTION 9: CONDITIONS
9.1 Suit Against the Company
No suit, action, or proceeding shall be brought against the Company for the recovery of any claim under this Policy unless the Named Insured has fully complied with all terms and conditions of this Policy and unless such suit, action, or proceeding is commenced within two (2) years after the date on which the direct physical loss or damage occurred, or within such longer period as may be provided by applicable law. If applicable law of the State of Florida provides for a longer limitations period, the longer period shall apply. Nothing in this provision shall be construed to limit the Named Insured's rights under applicable Florida law regarding the time within which suit may be brought against an insurer.
9.2 Subrogation.  If the Company pays or is obligated to pay any amount under this Policy, the Company shall be subrogated to all of the Named Insured's rights of recovery against any person, entity, or organization responsible for the loss or damage to the extent of the amount paid or payable by the Company. The Named Insured shall execute and deliver any instruments and papers and take any actions that may be required by the Company to secure and preserve such rights. The Named Insured shall do nothing after a loss to prejudice such rights.
If the Named Insured has waived its right of recovery against any person, entity, or organization in writing prior to the date of loss, the Company's right of subrogation against such person, entity, or organization shall be deemed waived to the extent of such written waiver, and such waiver shall not affect the Named Insured's right to recover under this Policy.
Any recoveries obtained by the Company through subrogation shall be applied first to reimburse the Company for the amount paid under this Policy, including claim handling expenses, and the balance, if any, shall be paid to the Named Insured.
9.3 Assignment.  Assignment of this Policy shall not be valid except with the prior written consent of the Company. No assignment of interest under this Policy shall bind the Company until its written consent is endorsed hereon. Any purported assignment without the Company's prior written consent shall be void and of no effect.
9.4 Cancellation.  [...]
The complete cancellation provisions are set forth in the full Policy but are not reproduced in these excerpts. In general, the Policy may be canceled by the Named Insured at any time by written request, or by the Company upon the provision of written notice in accordance with applicable Florida law.
9.5 Liberalization.  If during the Policy Period the Company adopts any revision to its standard forms that would broaden the coverage provided under this Policy without requiring an additional premium, the broadened coverage shall automatically apply to this Policy as of the date the revision becomes effective, provided that the revision is applicable to the type of risk insured under this Policy and to the jurisdiction in which the Covered Property is located.
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SECTION 10: POLICY SIGNATURES AND ATTESTATION
IN WITNESS WHEREOF, the Company has caused this Policy to be executed and attested by its duly authorized officers, and this Policy shall become effective as of the date and time set forth in the Declarations.
IRONCLAD INDEMNITY CORPORATION
By: ________
Name: [Authorized Officer — name redacted in Exhibit]
Title: Senior Vice President, Underwriting
Attest: ________
Name: [Authorized Officer — name redacted in Exhibit]
Title: Corporate Secretary
Countersigned by Licensed Agent:
By: ________
Name: [Agent name redacted in Exhibit]
Title: Authorized Agent
Date: July 1, 2022
Effective Date: July 1, 2022
This Policy, together with the Declarations, all endorsements, and the application (if any), constitutes the entire contract of insurance between the Named Insured and the Company. No change or modification of this Policy shall be effective unless made by endorsement issued to form a part of this Policy.
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END OF EXCERPTS — EXHIBIT A
I hereby certify that the foregoing are true and correct excerpts of Ironclad Indemnity Corporation Policy No. IIC-PRP-2022-07541, issued to Verimark Hospitality Group Inc. for the Policy Period of July 1, 2022 to July 1, 2023. These excerpts have been reproduced faithfully from the original policy document produced by Ironclad Indemnity Corporation in this litigation. Pages not relevant to the claims at issue have been omitted as indicated herein. The full and complete Policy is available for inspection upon request.
________________________________________
Elaine Forsythe, Esq. Florida Bar No. 987214 CALDERWOOD & HARKNESS LLP 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 555-7100 Facsimile: (305) 555-7101
Email: eforsythe@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.
Date: March 1, 2023
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v. | Case No.: 2022-CA-031547
IRONCLAD INDEMNITY CORPORATION; PINNACLE SURPLUS LINES INC.; MONTCLAIR ASSURANCE COMPANY; and SOVEREIGN RE LTD.,
Defendants.
Location No. | Property Name and Address | Description | Building & Contents TIV
1 | Verimark Grand Key Resort — Mile Marker 48, Marathon, FL 33050 | 312-room luxury resort and full-service marina, including all buildings, structures, fixtures, furnishings, equipment, supplies, and personal property of guests (subject to sub-limit) | $72,500,000
2 | Verimark Harborview Hotel & Conference Center — 1400 Estero Boulevard, Fort Myers Beach, FL 33931 | 224-room hotel with 40,000 sq. ft. conference and event facility, including all buildings, structures, fixtures, furnishings, equipment, supplies, and personal property of guests (subject to sub-limit) | $58,200,000
3 | Verimark Sunset Shores — 7200 Gulf Boulevard, St. Pete Beach, FL 33706 | 186-room boutique resort, including all buildings, structures, fixtures, furnishings, equipment, supplies, and personal property of guests (subject to sub-limit) | $41,800,000
Coverage | Limit
Per Occurrence Limit — Property Damage | $50,000,000
Per Occurrence Limit — Business Interruption | $25,000,000
Per Occurrence Limit — Extra Expense | $5,000,000
Aggregate Annual Limit (all coverages combined) | $75,000,000
Peril | Deductible
All Perils (except Named Windstorm) | $500,000 per occurrence
Named Windstorm | Subject to the Named Windstorm Deductible provisions set forth in Endorsement No. 7, attached hereto and made a part of this Policy

EXHIBIT A

GENERAL CIVIL DIVISION

PREFATORY NOTE

IRONCLAD INDEMNITY CORPORATION

ALL-RISK PROPERTY AND BUSINESS INTERRUPTION INSURANCE POLICY

DECLARATIONS PAGE

SECTION 1: DECLARATIONS

SECTION 3: BUSINESS INTERRUPTION COVERAGE (ENDORSEMENT NO. 2)

ENDORSEMENT NO. 2

BUSINESS INTERRUPTION COVERAGE

SECTION 4: PERIOD OF RESTORATION (ENDORSEMENT NO. 4)

ENDORSEMENT NO. 4

PERIOD OF RESTORATION

SECTION 5: NAMED WINDSTORM PROVISIONS (ENDORSEMENT NO. 7)

ENDORSEMENT NO. 7

NAMED WINDSTORM PROVISIONS

SECTION 6: EXCLUSIONS (ENDORSEMENT NO. 5)

ENDORSEMENT NO. 5

EXCLUSIONS

ENDORSEMENT NO. 8

Record

Parties

Dates

Amounts