Marine Charter & Storage Ltd. v. ALL UNDERWRITERS AT LLOYDS
| Decision Date | 13 February 1986 |
| Docket Number | No. 84-6668-Civ-ZLOCH.,84-6668-Civ-ZLOCH. |
| Citation | 628 F. Supp. 740 |
| Parties | MARINE CHARTER & STORAGE LTD., Plaintiff, v. ALL UNDERWRITERS AT LLOYDS OF LONDON Subscribing to Cover Notes 2H04/1291; 2H173; 2HH0592; 2H173737, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Ben Weaver, Weaver, Weaver, Lardin Liroff, Ft. Lauderdale, Fla., for plaintiff.
G. Morton Good, Smathers & Thompson, Miami, Fla., for defendant Kershaw individually for certain underwriters at Lloyds & C.A. Hansen.
William B. Milliken, Hayden & Milliken, Miami, Fla., for Ropner Ins., Ltd.
Sean Moore, Ft. Lauderdale, Fla., for Cape Anne Towing.
John C. Seipp, Miami, Fla., for Certain Underwriter at Lloyds.
David R. Canning, Mitchell Harris Canning & Murry, Miami, Fla., for Lyle & Sons Towing.
In general, this case involves the interpretation of a marine insurance policy. More specifically, this cause is before the court on two motions concerning Robin Kershaw. First, Kershaw, individually and on behalf of certain underwriters at Lloyds (hereinafter referred to as "Lloyds"), has moved for summary judgment on the issue of insurance coverage. The motion and corresponding memoranda address the issue of whether there was a breach of endorsement number 5 concerning the "Laid Up and Out of Commission" warranty that would void coverage under the policy. Second, Kershaw has moved to strike paragraph 4 of the Strauss affidavit submitted by plaintiff.
Paragraph 4 of Strauss' affidavit raises an inference that the insurer's agent approved the move next door for hauling and repair. This inference could support a waiver or estoppel theory. Specifically, Strauss states that Ted Hall was informed that M/V "MARCO POLO" was going to be moved from Anchorage Marine to Sea Land Marine for hauling out of the water and bottom work. A few days later, Hall examined the boat at Anchorage Marine. He never objected to the move to Sea Land and never indicated that the move would affect the insurance coverage.
Plaintiff's estoppel theory appears to require a factual determination that would preclude summary judgment. However, defendants strongly assert that estoppel is not an issue in this lawsuit. Plaintiff has never raised the issue of estoppel or waiver although these matters must be pled with specificity. Rule 8(c) of the Federal Rules of Civil Procedure provides (in pertinent part):
In pleading to a preceding pleading, a party shall set forth affirmatively ... estoppel ... waiver, and any other matter constituting an avoidance or affirmative defense.
Accordingly, the motion to strike portions of the Strauss affidavit is GRANTED. Therefore, the estoppel issue shall not be considered by the court at this time. However, plaintiff's ore tenus motion to amend the complaint to include the estoppel issue is GRANTED. See Fed.R.Civ.P. 15(a). Plaintiff shall have fifteen days to amend the complaint from the file stamp date of this order.
Defendants list several material facts which form the basis of the motion for summary judgment. Since plaintiff has not directly attacked these facts, it would appear that there is no genuine dispute as to the following:
1. Effective October 22, 1982 through October 22, 1983 defendants issued hull policy 2H04/1291, insuring the motor vessel M/V "MARCO POLO" against losses and damages.
2. Endorsement number 5, effective January 1, 1983 through May 1, 1983, provides as follows:
3. Endorsement number 5 was issued February 1, 1983 at the request of the plaintiff, and mailed to plaintiff on the same date, with a copy to Mr. Leander, plaintiff's representative in Fort Lauderdale having authority over the supervision and repairs to the vessel.
4. On April 12, 1983, the M/V "MARCO POLO" under tow, was moved from its warranted laid up premises at Anchorage Marine to Sealand, Inc. where she was hauled for the purposes of bottom work.
5. On April 30, 1983, when returning from Sealand, Inc. to the warranted laid up premises at Anchorage Marine, again under tow and her own power, the M/V "MARCO POLO" grounded, capsized and sustained the damages being sought in the present suit.
6. When the M/V "MARCO POLO" capsized and partially sank, it was not within the property boundaries for Anchorage Marine.
7. On April 30, 1983, the date of the casualty sued upon, the policy of insurance including endorsement number 5 was in full force and effect.
After reviewing the memoranda regarding this motion, plaintiff's response suggests a need to discuss two points.1 First, the court notes that there is no genuine dispute regarding the location of the accident. In plaintiff's response, it was asserted that the "MARCO POLO" grounded and capsized after it returned to the Anchorage/Cable West basin and canal. During oral argument, however, plaintiff conceded that the accident occurred while the ship was outside the property boundaries of Anchorage Marine.2 The second point raised by plaintiff concerns the heart of the matter—whether the casualty was covered under the policy in light of the endorsement and the relevant factual circumstances.
Construction of a contract is generally a question of law. When the terms of the contract are certain, the court's sole responsibility is to enforce the contract without modifications. It is only when the contract is ambiguous that the court must "interfere to reach a proper construction and make certain that which in itself is uncertain." 11 Fla.Jur.2d, Contracts § 101 (1979). "Construction of a contract is ordinarily a matter of law for the court, regardless of however ambiguous, uncertain, or difficult its terms may be ..." Id., § 102. The goal of contract interpretation is to effectuate the expressed intent of the parties as reflected in the agreement and the surrounding circumstances at the time the agreement was formed. See id., § 107; see also J & S Coin Operated Machines v. Gottlieb, 362 So.2d 38, 39 (Fla. Dist.Ct.App.1978); Reliance Insurance Co. v. Brickencamp, 147 So.2d 200, 202 (Fla. Dist.Ct.App.1962).
The relevant portions of the subject insurance policy include the following terms:
The facts provide a flavor for the circumstances surrounding the modification of the insurance policy with the endorsement. The policy was issued in November of 1982 and was for full navigation subject only to certain navigational geographic limits. The Privileges Clause is contained in the standard printed form of contract as issued in November. In January of 1983, the vessel was placed in a shipyard for extensive repairs, alternations and modifications. At that time the basic policy was modified, at the insured's request, to reflect that it was being withdrawn from navigation. A typewritten endorsement was issued reflecting that the insured warranted that the vessel would be laid up and out of commission from January 1, 1983 to May 1, 1983 at Anchorage Marine, Fort Lauderdale, Florida. In consideration of this endorsement the insured received return of premium of $1,600.00. During that lay up period the...
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