DRAFT — Circulated for Review and Comment — December 22, 2023
Circulated by Calderwood & Harkness LLP, counsel for Plaintiff Verimark Hospitality Group Inc., to:
Fendowell Rourke & Stanton LLP, counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.
Delvecchio & Kraus LLP, counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.
Counsel: Please review, provide any comments or revisions, and return executed signature pages at your earliest convenience. We would like to file no later than January 5, 2024. Please direct all comments to Elaine Forsythe (eforsythe@calderwoodharkness.com) and Tiffany Rosenthal (trosenthal@calderwoodharkness.com).
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
IRONCLAD INDEMNITY CORPORATION, a Connecticut corporation; PINNACLE SURPLUS LINES INC., a Texas corporation; MONTCLAIR ASSURANCE COMPANY, a New York corporation; and SOVEREIGN RE LTD., a Bermuda company,
Defendants.
Case No.: 2022-CA-031547
JOINT STIPULATION OF DISMISSAL WITH PREJUDICE
The parties to this action — Plaintiff Verimark Hospitality Group Inc. ("VHG" or "Plaintiff") and Defendants Ironclad Indemnity Corporation ("Ironclad"), Pinnacle Surplus Lines Inc. ("Pinnacle"), Montclair Assurance Company ("Montclair"), and Sovereign Re Ltd. ("Sovereign Re") (collectively, "Defendants," and together with Plaintiff, the "Parties") — by and through their respective undersigned counsel of record, hereby jointly stipulate and agree to the dismissal of this action with prejudice, pursuant to Florida Rule of Civil Procedure 1.420(a)(1)(B), and in support thereof state as follows:
WHEREAS, on or about March 1, 2023, Plaintiff filed its Complaint in the above-captioned action asserting claims against Defendants for, among other things, breach of contract, declaratory judgment, and bad faith arising out of Defendants' alleged failure to provide coverage under certain property and casualty insurance policies in connection with losses sustained by Plaintiff;
WHEREAS, the Parties have engaged in extensive litigation in this matter, including written discovery, depositions, motion practice, and Court-ordered mediation;
WHEREAS, the Parties have reached a full and final settlement of all claims, counterclaims, crossclaims, and demands between and among them in connection with this action, the terms and conditions of which are set forth in a separate, confidential Settlement Agreement and Mutual Release dated December 19, 2023 (the "Settlement Agreement"), which is not incorporated herein and the terms of which are not disclosed in this Stipulation;
WHEREAS, nothing contained in this Stipulation or the Settlement Agreement constitutes or shall be construed as an admission of liability, wrongdoing, or fault by any Defendant, and the Settlement Agreement has been entered into solely for the purpose of resolving disputed claims and avoiding the cost, burden, and uncertainty of continued litigation; and
WHEREAS, the Parties desire to dismiss this action with prejudice and to resolve all matters between and among them in accordance with the terms of this Stipulation and the Settlement Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein and in the Settlement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties stipulate and agree as follows:
1. STIPULATION OF DISMISSAL WITH PREJUDICE
1.1. The Parties hereby stipulate and agree that all claims, counterclaims, crossclaims, third-party claims, and demands of every kind and nature that have been asserted, or that could have been asserted, by any Party against any other Party in the above-captioned action, Case No. 2022-CA-031547, are hereby dismissed with prejudice.
1.2. Without limiting the generality of the foregoing, this dismissal with prejudice encompasses all counts set forth in the Complaint filed by Plaintiff on March 1, 2023, including but not limited to: (a) Count I — Breach of Contract against Ironclad Indemnity Corporation; (b) Count II — Breach of Contract against Pinnacle Surplus Lines Inc.; (c) Count III — Breach of Contract against Montclair Assurance Company; (d) Count IV — Breach of Contract against Sovereign Re Ltd.; (e) Count V — Declaratory Judgment against all Defendants; and (f) Count VI — Bad Faith Failure to Settle against all Defendants.
1.3. This dismissal is with prejudice, meaning that no Party may refile, reassert, reinstitute, or otherwise commence any action, claim, demand, or proceeding against any other Party arising from or relating to the same facts, circumstances, occurrences, transactions, policies of insurance, or subject matter that formed the basis of, or could have formed the basis of, any claim or defense in this action. The Parties acknowledge and agree that this dismissal with prejudice constitutes a final adjudication on the merits of all claims and defenses for purposes of res judicata and collateral estoppel.
2. DISPOSITION OF PENDING MOTIONS
2.1. All motions, applications, and requests for relief currently pending before the Court in this action are hereby deemed withdrawn and moot as a result of the Parties' settlement and this Stipulation, and the Parties respectfully request that the Court deny such motions as moot or otherwise remove them from the Court's docket. The pending motions include, but are not limited to, the following:
(a) Plaintiff's Motion for Partial Summary Judgment Regarding Applicability of the Windstorm Sub-Limit Under the Primary Policy (Dkt. No. 87), filed on November 1, 2023;
(b) Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.'s Cross-Motion for Partial Summary Judgment on the Windstorm Sub-Limit and Anti-Concurrent Causation Clause (Dkt. No. 94), filed on November 15, 2023; and
(c) Any and all responses, replies, notices of supplemental authority, and other filings associated with the foregoing motions.
2.2. The Court's Order dated November 20, 2023, directing the Parties to participate in mediation, has been fully satisfied. The Parties participated in a two-day mediation session conducted on December 4–5, 2023, before the Honorable Richard Mendelson (Ret.), serving as mediator through Keystone Dispute Resolution Inc., located in Miami, Florida. The mediation resulted in the settlement that forms the basis for this Stipulation, and the Parties represent to the Court that the mediation requirement has been fulfilled in all respects.
3. COSTS AND ATTORNEYS' FEES
3.1. Except as otherwise expressly provided in the Settlement Agreement, each Party shall bear its own costs, expenses, and attorneys' fees incurred in connection with this action, including but not limited to filing fees, service costs, discovery expenses, expert fees, mediation costs, and any other costs of litigation. No Party shall seek to recover any such costs, expenses, or attorneys' fees from any other Party in connection with this action, except as may be provided in the Settlement Agreement.
3.2. The terms of the Settlement Agreement dated December 19, 2023, including any provisions relating to the allocation or payment of costs or fees, are confidential and are not incorporated into or made a part of this Stipulation. Nothing in this Stipulation shall be construed to modify, amend, or supersede any provision of the Settlement Agreement.
4. RETENTION OF JURISDICTION
4.1. Notwithstanding the dismissal of this action with prejudice, the Court shall retain jurisdiction over the Parties and this matter solely and exclusively for the limited purpose of enforcing the terms and conditions of the Settlement Agreement, in the event that any dispute arises between or among the Parties regarding the interpretation, performance, or enforcement of the Settlement Agreement that cannot be resolved through the dispute resolution mechanisms set forth therein.
4.2. Except as expressly set forth in Section 4.1 above, the Court shall not retain jurisdiction over the Parties or this matter for any other purpose. Upon the entry of the Proposed Order of Dismissal submitted herewith, this action shall be deemed concluded in all respects, subject only to the Court's retained jurisdiction as described in Section 4.1.
5. AUTHORITY
5.1. Counsel for each Party hereby represents and warrants to the Court and to all other Parties that they have been duly authorized by their respective clients to execute this Joint Stipulation of Dismissal with Prejudice on behalf of their respective clients, and that the execution and delivery of this Stipulation has been approved by each Party with full knowledge of its terms and legal consequences.
5.2. Each Party further represents that no consent, approval, or authorization of any third party, governmental authority, or other person or entity is required in connection with the execution, delivery, or performance of this Stipulation, except as may have already been obtained.
6. PROPOSED ORDER
6.1. The Parties respectfully request that the Court enter the Proposed Order of Dismissal with Prejudice submitted contemporaneously herewith as a separate document, which provides for the dismissal of this action with prejudice in accordance with the terms of this Stipulation, the disposition of all pending motions as moot, and the retention of jurisdiction as set forth in Section 4 above.
6.2. A copy of the Proposed Order of Dismissal with Prejudice is attached hereto as Exhibit A for the Court's convenience and review.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK — SIGNATURE PAGES FOLLOW]
SIGNATURE PAGE TO JOINT STIPULATION OF DISMISSAL WITH PREJUDICE Case No. 2022-CA-031547
AGREED AND STIPULATED:
FOR PLAINTIFF VERIMARK HOSPITALITY GROUP INC.:
CALDERWOOD & HARKNESS LLP 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 579-2400 Facsimile: (305) 579-2401
By: ________
Name: Elaine Forsythe
Title: Partner
Florida Bar No. 0087214
Email: eforsythe@calderwoodharkness.com
[SIGNATURE]
By: ________
Name: Tiffany Rosenthal
Title: Associate
Florida Bar No. 1124538
Email: trosenthal@calderwoodharkness.com
[SIGNATURE]
Counsel for Plaintiff Verimark Hospitality Group Inc.
Date: ________
SIGNATURE PAGE TO JOINT STIPULATION OF DISMISSAL WITH PREJUDICE Case No. 2022-CA-031547
FOR DEFENDANTS IRONCLAD INDEMNITY CORPORATION AND PINNACLE SURPLUS LINES INC.:
FENDOWELL ROURKE & STANTON LLP 280 Trumbull Street, Suite 2200 Hartford, Connecticut 06103
and
101 E. Kennedy Boulevard, Suite 3900 Tampa, Florida 33602 Telephone: (860) 555-7100 / (813) 555-9200 Facsimile: (860) 555-7101 / (813) 555-9201
By: ________
Name: Gregory Stanton
Title: Partner
Florida Bar No. 0643891
Email: gstanton@bracewellrourke.com
[SIGNATURE]
By: ________
Name: Meredith Liang
Title: Senior Associate
Florida Bar No. 1098327
Email: mliang@bracewellrourke.com
[SIGNATURE]
Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.
Date: ________
SIGNATURE PAGE TO JOINT STIPULATION OF DISMISSAL WITH PREJUDICE Case No. 2022-CA-031547
FOR DEFENDANTS MONTCLAIR ASSURANCE COMPANY AND SOVEREIGN RE LTD.:
DELVECCHIO & KRAUS LLP 425 Park Avenue, 20th Floor New York, New York 10022 Telephone: (212) 555-3300 Facsimile: (212) 555-3301
By: ________
Name: Patricia Kraus
Title: Partner
Florida Bar No. 0751463
Email: pkraus@delvecchiokraus.com
[SIGNATURE]
By: ________
Name: Raymond Cho
Title: Senior Associate
Florida Bar No. 1156702
Email: rcho@delvecchiokraus.com
[SIGNATURE]
Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.
Date: ________
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on [Date of Filing], a true and correct copy of the foregoing Joint Stipulation of Dismissal with Prejudice was served via electronic mail and/or the Florida Courts E-Filing Portal upon the following counsel of record:
Gregory Stanton, Esq. Meredith Liang, Esq. Colin Ashford, Esq. Fendowell Rourke & Stanton LLP 280 Trumbull Street, Suite 2200 Hartford, Connecticut 06103
and
101 E. Kennedy Boulevard, Suite 3900 Tampa, Florida 33602
Email: gstanton@bracewellrourke.com; mliang@bracewellrourke.com; cashford@bracewellrourke.com
Counsel for Defendants Ironclad Indemnity Corporation and Pinnacle Surplus Lines Inc.
Patricia Kraus, Esq. Raymond Cho, Esq. Delvecchio & Kraus LLP 425 Park Avenue, 20th Floor New York, New York 10022
Email: pkraus@delvecchiokraus.com; rcho@delvecchiokraus.com
Counsel for Defendants Montclair Assurance Company and Sovereign Re Ltd.
CALDERWOOD & HARKNESS LLP
By: ________
Name: Elaine Forsythe
Florida Bar No. 0087214 333 SE 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 579-2400
Email: eforsythe@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.
This document is a DRAFT dated December 22, 2023, circulated for review and comment prior to execution and filing. This draft does not constitute a filed document with the Court. All signature lines remain unexecuted. Filing is anticipated upon receipt of executed signature pages from all counsel of record.