Great Lakes Ins. Se v. Sunset Watersports, Inc.
| Decision Date | 08 November 2021 |
| Docket Number | CASE NO. 20-CIV-61629-WPD, CASE NO. 20-CIV-61630-WPD |
| Citation | 570 F.Supp.3d 1252 |
| Parties | GREAT LAKES INSURANCE SE, Plaintiff, v. SUNSET WATERSPORTS, INC., Defendant. Great Lakes Insurance SE and Certain Underwriters at Lloyd's of London Subscribing to Policy No. B0507RN2000289, Plaintiffs, v. Sunset Watersports, Inc., Sunset Party Cat, Inc., and Andrew Santeiro, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Charles Stuart Davant, Aaron Michael Dmiszewicki, Davant Law, P.A., Sheri-Lynn Christine Corey, Whitelock, Associates, Fort Lauderdale, FL, for Plaintiff in 20-CIV-61629-WPD.
Clay Michael Naughton, Michael T. Moore, Moore & Company, P.A., Coral Gables, FL, Matthew Bryan Weaver, Nicole Langesfeld, Garrett Samuel Nemeroff, Reed Smith LLP, Miami, FL, for Defendant in 20-CIV-61629-WPD.
Aaron Michael Dmiszewicki, Charles Stuart Davant, Davant Law, P.A., Fort Lauderdale, FL, for Plaintiffs in 20-CIV-61630-WPD.
Matthew Bryan Weaver, Nicole Langesfeld, Reed Smith LLP, Miami, FL, for Defendants in 20-CIV-61630-WPD. Charles Stuart Davant, Aaron Michael Dmiszewicki, Davant Law, P.A., Sheri-Lynn Christine Corey, Whitelock, Associates, Fort Lauderdale, FL, for Plaintiff in 20-CIV-61629-WPD.
Clay Michael Naughton, Michael T. Moore, Moore & Company, P.A., Coral Gables, FL, Matthew Bryan Weaver, Nicole Langesfeld, Garrett Samuel Nemeroff, Reed Smith LLP, Miami, FL, for Defendant in 20-CIV-61629-WPD.
Aaron Michael Dmiszewicki, Charles Stuart Davant, Davant Law, P.A., Fort Lauderdale, FL, for Plaintiffs in 20-CIV-61630-WPD.
Matthew Bryan Weaver, Nicole Langesfeld, Reed Smith LLP, Miami, FL, for Defendants in 20-CIV-61630-WPD.
WILLIAM P. DIMITROULEAS, United States District Judge THIS CAUSE is before the Court on Plaintiffs Great Lakes Insurance SE ("Great Lakes") and Certain Underwriters at Lloyd's of London Subscribing to Policy No. B0507RN2000289 (Underwriters) (collectively, "Plaintiffs")’s Motion for Final Summary Judgment [DE 66] (the "Motion"). The Court has considered the Motion [DE 66], Defendants' Responses in Opposition [DE 77], Plaintiffs' Reply [DE 87], the statements of material facts [DEs 65, 78, 86], the supplemental briefing [DEs 97, 101, 102], the exhibits and affidavits filed in the record, and is otherwise fully advised in the premises.
For the reasons stated herein, the Court grants Plaintiffs' Motion for Summary Judgment.
At all times material to this action, Sunset Watersports, Inc. and Sunset Party Cat, Inc. (collectively, the "Defendants") were wholly owned by Richard Welter. PSMF ¶ 1; DSMF ¶1. In addition to Sunset Watersports and Sunset Party Cat, Welter owned Sunset Boat Rentals & Tours, Inc., Sunset Island Party Operating Corp., Key West Snorkel, Inc. and Sunset Waverunner Tours, Inc.2 PSMF ¶ 2; DSMF ¶ 2.
This consolidated action involves the validity and applicability of three insurance policies to various claims: the 2019-2020 policy Great Lakes issued to Sunset Watersports; the 2020-2021 policy Great Lakes issued to Sunset Watersports; and the 2020-2021 policy Great Lakes and Underwriters issued to Sunset Party Cat (collectively, the "Sunset Policies"). The claims underlying the instant action are summarized as follows:3 On July 2, 2019, Debra Manderson sustained injuries while participating in a parasailing excursion on board the Parasail V, operated by Sunset Watersports, after her left foot slipped and twisted when she attempted to board the boat with the assistance of an employee (the "Manderson Claim"). PSMF ¶¶ 84-86; DSMF ¶¶ 84-86. On July 17, 2020, Nicholas Hayward and Azalea Silva were participating in a parasailing activity operated by Sunset Party Cat when they were seriously injured; both individuals later died from their injuries (the "Hayward/Silva Claim"). PSMF ¶¶ 98, 120-22; DSMF ¶¶ 98, 120-22. On the same day as the Hayward/Silva Claim, Sarah and Ryan Arroyo were aboard the Parasail V and witnessed Hayward and Silva go up in sail, after which they sustained both physical and mental injuries (the "Arroyo Claim"). PSMF ¶¶ 153-154.
Prior to the insurance contract with Great Lakes, Defendants were insured through Navigators Insurance Company ("Navigators"), who wrote all insureds on one policy. PSMF ¶ 4; DSMF ¶ 4. However, Defendants wanted to change their policy structure so that each entity would be insured on its own policy. PSMF ¶ 5; DSMF ¶ 5. Defendants engaged a broker, Michael Fields, who in turn contacted Catie Brugman at Hull & Company, who in turn contacted Great Lakes and Underwriters' managing agent, Concept Special Risks; this chain constituted the flow of information regarding risk between Plaintiffs and Defendants. PSMF ¶¶ 6-10; DSMF ¶¶ 6-10. Mr. Fields represented to Ms. Brugman that PSMF ¶ 12; DSMF ¶ 12.
On April 18, 2016, Ms. Brugman wrote to the lead underwriter at Concept Special Risks, the managing general agent of Great Lakes and Underwriters, Tony Usher via email. PSMF ¶ 14; DSMF ¶ 14. Usher is the managing director of Concept Special Risks and underwrites marine insurance policies. PSMF ¶ 15; DSMF ¶ 15. Brugman requested Usher underwrite policies for three parasail boats. PSMF ¶¶ 16-17; DSMF ¶¶ 16-17. Parasailing is outside Great Lakes' usual risk appetite and Sunset Watersports was the only parasail risk Great Lakes have ever written. PSMF ¶ 18; DSMF ¶ 18. Nevertheless, Brugman wrote Usher an email, requesting a proposal and attaching several documents, once of which included a First Flight application indicating "N/A" for prior loss runs for three prior years and indicating no claims for the past five years. PSMF ¶ 20; DSMF ¶¶ 20; 174; PRSMF ¶ 174. Brugman also attached Navigators loss runs indicating no incidents, claims, or losses other than a July 19, 2009 loss involving a customer suffering a heart attack while snorkeling. PSMF ¶¶ 21-22; DSMF ¶ 21-22. Brugman also attached a letter from Welter "confirm[ing] there have been no parasailing related losses during the 4/28/2015 – 4/28/2016 term." PSMF ¶ 24; DSMF ¶ 24. On June 10, 2016, Brugman sent a copy of the Defendants' Concept Application to Great Lakes. PSMF ¶ 27; DSMF ¶ 27. Where question 11 of the Concept Application asked "[h]ave you or any named operator been involved in a loss in the last 10 years (insured or not)?" the box was marked "no."4 PSMF ¶ 28; DSMF ¶ 28. The same representation was made on the Sunset Party Cat Concept Application. PSMF ¶ 29; DSMF ¶ 29.
Great Lakes ultimately issued policies to each of the Sunset entities except Sunset Waverunner, and those policies would be renewed for the 2017-2018 policy year, 2018-2019 policy year, 2019-2020 policy year, and the 2020-2021 policy year. PSMF ¶ 33. In each of the renewal years, the Defendants signed an operator form indicating the operators had no losses. PSMF ¶ 34; DSMF ¶ 34. However, the parties dispute to what extent Great Lakes relied on this information. Plaintiffs assert Great Lakes and Underwriters relied on the original application and representations in each of the renewal years. PSMF ¶¶ 33, 35-36. Defendants assert that the record shows Great Lakes, Underwriters, and Concept Special Risks knew or should have known about the inherent risks associated with commercial watersports operations before agreeing to insure Sunset and, specifically, knew about no less than four separate incidents before renewing the Policies effective April 2020. DSMF ¶¶ 33, 35.
The complete Navigators loss runs showed Sunset Island Party and Sunset Party Cat made 12 claims to Navigators since 2011, resulting in $597,243.00 in expenditures by Navigators. PSMF ¶ 38; DSMF ¶ 38-39. The details of the claims indicated in the loss runs are more fully described in PSMF ¶¶ 39-48 and DSMF ¶¶ 39-48. Plaintiffs further contend that the Sunset entities were involved in at least nine other incidents not reported in the loss runs which are more fully described in PSMF ¶¶ 49-58 and DSMF ¶¶ 49-58. Defendants dispute many of these incidents and losses on the basis that the claims themselves were meritless, did not result in lawsuits, were "bogus" or "fabricated," or that Defendants otherwise do not recall the incidents. DSMF ¶¶ 46-49, 53, 55. However, it is undisputed that none of these incidents were disclosed to Great Lakes. PSMF ¶ 59; DSMF ¶ 59. Usher testified that had Great Lakes and Underwriters known about these incidents, they would not have written the risk. PSMF ¶¶ 66-67; DSMF ¶¶ 66-67.
This consolidated action is a declaratory judgment action that seeks to determine the rights of Defendants Sunset Watersports, Sunset Party Cat, and Andrew Santeiro5 under marine insurance policies issued by Plaintiffs to Sunset Watersports and Sunset Party Cat. In its complaint with respect to the Manderson Claim, Great Lakes alleged the following causes of actions against Sunset Watersports: Count I—Breach of Warranty; Count II—Uberrimae Fidei; and Count III—Breach of General Condition L. See [DE 1]. In its complaint with respect to the Hayward/Silva Claim, Great Lakes and Underwriters alleged the following causes of action against Sunset Watersports and Sunset Party Cat: Count I—Breach of the Navigational Warranty (Sunset Policy); Count II—Uberrimae Fidei (Sunset Policy); Count III—Breach of General Condition L (Sunset Policy); Count V—Declaratory Judgment That the Loss Does not Fall Within the Coverage Grant (Party Cat Policy); Count VI—Violation of Exclusion K (Party Cat Policy); Count VII—Uberrimae Fidei (Party Cat Policy); Count VIII—Breach of General Condition L (Party Cat Policy); and Count IX—Declaration Regarding Number of Occurrences (In the Alternative).6
Plaintiffs bring the instant Motion for Summary...
To continue reading
Request your trial
-
Clear Spring Prop. & Causalty Co. v. Viking Power LLC
...entrenched federal maritime law in the Eleventh Circuit. See HIH Marine Servs. , 211 F.3d at 1362 (citations omitted); Sunset Watersports, Inc. , 570 F.Supp.3d at 1261. Thus, the Eleventh Circuit's standard — not New York's standard — applies. And the Eleventh Circuit's uberrimae fidei stan......
-
Clear Spring Prop. & Casuality Co. v. Bluewater Adventures of Sarasota
... ... Petland, ... Inc. , 972 F.3d 1204, 1216 (11th Cir. 2020) (citation ... Geico ... Marine Ins. Co. , 983 F.3d 1264, 1270 (11th Cir. 2020) ... as a matter of law.” Great Lakes Ins. SE v. Sunset ... Watersports, ... ...