UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

(MIAMI DIVISION)

TOWN KITCHEN, LLC, individually and 

on behalf of others similarly situated, Case No. 1:20-CV-22832-FAM

Plaintiff, 

 CLASS ACTION

v.

CERTAIN UNDERWRITERS AT

LLOYD’S, LONDON KNOWN AS 

SYNDICATE ENH 5151, NEO 2468, 

XLC 2003, TAL 1183, TRV 5000, AGR 

3268, ACS 1856, NVA 2007, HDU 382, 

PPP 1980, AMA 1200 ASC 1414 and 

VSM 5678, INDIAN HARBOR 

INSURANCE COMPANY, and HDI 

GLOBAL SPECIALTY SE,

Defendants.

_____________________________________/

FIRST AMENDED COMPLAINT

Plaintiff, Town Kitchen, LLC (“Town” or “Plaintiff”), on behalf of itself and all others 

similarly situated, bring this action against Certain Underwriters at Lloyds, London known as 

Syndicate ENH 5151, NEO 2468, XLC 2003, TAL 1183, TRV 5000, AGR 3268, ACS 1856, NVA 

2007, HDU 382 , PPP 1980, AMA 1200 ASC 1414 and VSM 5678, Indian Harbor Insurance 

Company, and HDI Global Specialty SE (altogether, “Defendants” or “Insurers”), for a declaratory 

judgment of rights and obligations under the commercial property insurance policies issued by 

Defendants, and on behalf of Town individually, for breach of contract and damages. Plaintiff 

alleges as follows, based on personal knowledge, and upon information and belief as to all other 

matters:

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I. NATURE OF ACTION

1. This action arises out of Defendants’ denial of coverage for time element losses 

and extra expense under an “all risk” insurance policy Defendants sold to Town. The “all risk” 

policy does not include any exclusion for losses caused by virus or communicable disease.

2. Town timely provided notice of its covered losses resulting from COVID-19 and 

associated governmental orders, but Defendants denied coverage without conducting a fair and 

thorough investigation. Instead, Defendants assert that Town’s claim, even though its policy does

not exclude coverage for loss caused by viruses or communicable disease and provides coverage 

for “all risks of direct physical loss of or damage to property” unless otherwise excluded, are not 

covered losses.

3. On behalf of itself and all others similarly situated policyholders, Town seeks 

declaratory relief.

On behalf of itself individually, Town also seeks damages for breach of contract . Town also seeks 

ancillary relief, including an award of damages, pre- and post-judgment interest on its damage 

award, costs, and attorneys’ fees pursuant to Section 627.428, Florida Statutes and/or Section 

626.9373, Florida Statutes.

II. PARTIES

4. Plaintiff Town is a Florida limited liability company with its principal place of 

business at 7301 SW 57th Court, Suite 100, South Miami, Florida 33143 (“Town” or “the 

Property”).

5. Defendant Certain Underwriters at Lloyd’s, London (hereinafter “Lloyds”) 

subscribing to Policy Number AVS011418900 are certain syndicates in the business of issuing 

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policies of insurance, with their principal place of business in London, England. Upon information 

and belief, the liabilities under Policy Number AVS011418900 are shared among a syndicate of 

underwriters identified only by a pseudonym and respective allocation of liability: ENH 

5151(26%), NEO 2468 (4%), XLC 2003 (3.69%), TAL 1183 (1.28%), TRV 5000 (.37%), AGR 

3268 (.74%), ACS 1856 (1.28%), NVA 2007 (1%), HDU 382 (3.38%), PPP 1980 (3.38%), XLC 

2003 (8.5%), TRV 5000 (1.68%), AMA 1200 (3.38%), ACS 1856 (1.74%), ASC 1414 (2.52%), 

VSM 5678 (3.38%). 

6. Defendant Indian Harbor Insurance Company (“Indian Harbor”) is a Delaware 

insurance company with its principal place of business in Stamford, Connecticut. Indian Harbor 

shares 15% liability under Policy Number AVS011418900. 

7. Defendant HDI Global Specialty SE (“HDI”) is a foreign insurance company with 

its principal place of business in Hannover, Germany. HDI shares 18.68% liability under Policy 

Number AVS011418900.

III. JURISDICTION AND VENUE

8. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because 

Town and Defendants are citizens of different states and/or countries and the amount in 

controversy exceed $75,000 exclusive of interest and costs.

9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) as a substantial 

portion of the acts and conduct giving rise to the Claim occurred in Miami-Dade County and the 

City of South Miami, which are located in this district and division, and at all material times the 

Defendants engaged in the business of selling insurance in Miami-Dade County.

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IV. GENERAL ALLEGATIONS

Town’s Business

10. Town has operated as a dine-in local restaurant and popular bar in the heart of South 

Miami.

11. Prior to the outbreak of COVID-19, the restaurant employed 24 to 28 employees at 

any given time, and operated seven (7) days per week serving lunch and dinner, as well as weekend 

brunch.

The Policy

12. In exchange for payment of premium, Defendants sold Town an “all risk” 

commercial property insurance policy bearing policy no. AVS011418900, effective from April 10, 

2019 to April 10, 2020, with a limit of liability of liability of $1,950,000.00 (the “Policy”). The 

Policy provides business interruption, extra expense, civil authority, and other coverages. Upon 

information and belief, a true and correct copy of the Policy is attached as Exhibit A. Per the 

terms of the Policy, the Defendants agreed to indemnify Town for time-element1 losses, including

business interruption, extra expense, and civil authority coverage.

13. An “all-risk” policy provides the broadest coverage available. Under an all-risk 

policy, the insured’s burden is limited—the insured need only show that a fortuitous loss occurred. 

The burden then shifts to the insurer to show that an express exclusion in the policy either bars or 

 1

 “Time-element” coverage means the quantum of loss is tied to how long it takes to replace or 

repair damaged property or to return property to its intended use.

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limits coverage. The Policy is written on a standard Insurance Services Office (“ISO”)2 form 

(form

CP 00 30 10 12 (2011)) and does not contain a virus exclusion, even though such an exclusion was 

available to the Insurers since at least 2006.

14. In the aftermath of the SARS pandemic of the early 2000s, ISO introduced form 

CP 01 40 07 06 “Exclusion of Loss Due to Virus or Bacteria,” conceding that the traditional ISO 

property form—like the Policy here—covers losses due to viruses:

Disease-causing agents may render a product impure (change its quality of substance), or 

enable the spread of disease by their presence on interior building surfaces or the surfaces 

of personal property. When disease-causing viral or bacterial contamination occurs, 

potential claims involve . . . business interruption (time element) losses. Although building 

and personal property could arguably become contaminated (often temporarily) by such 

viruses and bacteria, the nature of the property itself would have a bearing on whether there 

is actual property damage. An allegation of property damage may be a point of 

disagreement in a particular case.

See ISO Circular, July 6, 2006.

15. The Insurers elected to sell Town a policy without the virus exclusion, and cannot 

now re-write the Policy to exclude losses due to virus, such as COVID-19.

16. The Insurers instead sold and promised to provide Town with coverage for loss 

of Business Income, as set forth below:

We will pay for the actual loss of Business Income you sustain due to the necessary 

“suspension” of your “operations” during the “period of restoration.” The “suspension” 

must be caused by direct physical loss of or damage to property at premises which are 

described in the Declarations and for which a Business Income Limit of Insurance is shown 

in the Declarations. The loss or damage must be caused by or result from a Covered Cause 

of Loss.

 2 ISO is an insurance advisory organization that, among other things, provides pre-printed policy 

forms and endorsements that are widely used by insurers.

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See Ex. A. at CP 00 30 10 12 p. 1 of 9. The Policy has no sublimit for loss of Business Income, 

meaning the full amount of coverage is available.

17. Covered causes of loss means direct physical loss unless the loss is excluded or 

limited in this Policy. See Ex. A. at CP 10 30 09 17, p. 1 of 10.

18. The Policy does not define the phrase “physical loss of or damage to property.”

19. The presence of the disjunctive “or” in “physical loss of or damage to property” 

means that coverage is triggered if either a physical loss to property or damage to property occurs.

20. Per Merriam-Webster’s online dictionary, the definition of “physical” includes 

“having material existence.” 3

 COVID-19 undoubtedly has a “material existence,” even though it 

is not tangible or perceptible by the naked eye. Therefore, COVID-19 constitutes a “physical loss” 

with the meaning of the Policy.

21. Physical loss of or damage to property may be reasonably interpreted to occur

when a covered cause of loss threatens or renders property unusable or unsuitable for its intended 

purpose, or unsafe for normal human occupancy and/or continued use.

22. The Policy’s Business Income Coverage Part also includes coverage for Extra 

Expense:

***

b. Extra Expense means necessary expenses you incur during the “period of restoration” 

that you would not have incurred if there had been no direct physical loss or damage to property 

caused by or resulting from a Covered Cause of Loss.

We will pay Extra Expense (other than the expense to repair or replace property) to:

 3 https://www.merriam-webster.com/dictionary/physical (last viewed July 18, 2020).

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(1) Avoid or minimize the “suspension” of business and continue operations at the 

described premises or at replacement premises or temporary locations, including 

relocation expenses and costs to equip and operate the replacement location or 

temporary location.

(2) Minimize the “suspension” of business if you cannot continue “operations.”

We will also pay Extra Expense to repair or replace property, but only to the extent it

reduces the amount of loss that otherwise would have been payable under this Coverage

Form.

Id. at 1-2 of 9.

23. Under the Business Income Coverage Part, coverage is extended to include the 

following Civil Authority Coverage:

When a Covered Cause of Loss causes damage to property other than property at the

described premises, we will pay for the actual loss of Business Income you sustain caused 

by action of civil authority that prohibits access to the described premises, provided that 

both of the following apply:

(1) Access to the area immediately surrounding the damaged property is prohibited by 

civil authority as a result of the damage, and the described premises are within that 

area but are not more than one mile4 from the damaged property; and

(2) The action of civil authority is taken in response to dangerous physical conditions

resulting from the damage or continuation of the Covered Cause of Loss that caused 

the damage, or the action is taken to enable a civil authority to have unimpeded 

access to the damaged property.

Id. at p. 2 of 9.

The COVID-19 Pandemic

24. In or around December 2019, the first case of COVID-19 or the novel Coronavirus 

was reported. According to the World Health Organization, COVID-19 is “an infectious disease 

 4 Pursuant to CP 01 25 02 12 “Florida Changes” at p. 2 of 3, “with respect to described premises 

location in Florida, such one-mile radius does not apply.”

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caused by a newly discovered coronavirus.”5 COVID-19 can be transmitted from person to person, 

but can also be acquired after touching contaminated objects. 

25. According to the Center for Disease Control (“CDC”), “everyone is at risk for 

getting COVID-19.” A person may become infected by (1) coming into close contact (about 6

feet) with a person who has COVID-19; (2) respiratory droplets when an infected person talks, 

sneezes, or coughs; and/or (3) touching surfaces or objects that have the virus on them, and then 

touching his or her mouth, eyes, or nose. See https:www.cdc.gov.coronavirus/2019-

ncov/faq.html; see also Miami-Dade County Emergency Order 05-20 attached as Exhibit B.

26. The time from exposure (infection) to the development of COVID-19 symptoms –

the incubation period – can be up to fourteen days.6 During this period, those infected can be 

contagious and transmit the disease before they show any symptoms or have any reason to believe 

they are sick.7Asymptomatic carriers may also transmit the virus. Id. At least 44% of all infections 

occur from people without any symptoms. See https: www.nature.com/articles/s41591-020-0869-

5.

27. Studies from the National Institutes of Health support that the virus may be detected 

in aerosols for up the three hours, on plastic and stainless steel for up to three days, and on 

 5 https://www.who.int/health-topics/coronavirus#tab=tab_1. 6 See https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid19.pdf?sfvrsn=5ae25bc7_4#:~:text=The%20incubation%20period%20for%20COVID,occur%20before% 

20symptom%20onset (last viewed on July 9, 2020); see also https://www.cdc.gov/coronavirus/2019-

ncov/hcp/faq.html (last viewed on July 9, 2020

7 See https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid19.pdf?sfvrsn=5ae25bc7_4#:~:text=The%20incubation%20period%20for%20COVID,occur%20before% 

20symptom%20onset (last viewed on July 9, 2020).

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cardboard for twenty-four hours. See https://www.nih.gov/news-events/nih-researchmatters/study-suggests-new-coronavirus-may-remain-surfaces-days.

8

28. Over the last few months, COVID-19 has spread into a global pandemic.9 In 

response to the pandemic, on March 9, 2020, the Governor of Florida, Ronald DeSantis, declared 

a State of Emergency in Florida related to COVID-19, recognizing that eight counties in Florida 

had positive cases for COVID-19 and the virus posed a risk to the entire State of Florida. A few 

days later, Miami-Dade County Mayor Carlos Gimenez declared a State of Emergency for MiamiDade County. 

29. On March 12, 2020, the Mayor of Miami-Dade County declared a State of 

Emergency for all of Miami-Dade County. See Miami-Dade County Declaration of Local State 

of Emergency dated March 12, 2020 (“State of Emergency Order”). In the State of Emergency 

Order, the Mayor noted that “restaurants, bars, taverns, pubs, night clubs, banquet halls, cocktail 

lounges, cabarets, breweries, and cafeterias are potential gathering places for the spread of 

COVID-19/novel Coronavirus.”

30. On March 16, 2020, President Donald J. Trump and the Center for Disease Control 

(“CDC”) issued the “15 Days to Slow the Spread” guidance advising individuals to adopt social 

distancing measures, such as avoiding gatherings of more than 10 people. On March 31, the 

President updated the guidance to “30 Days to Slow the Spread.” 

 8 See also https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hourssurfaces. 9 https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020.

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31. On March 17, 2020, the Mayor of Miami-Dade County issued Emergency Order 

03-20, attached as Exhibit C, again recognizing that restaurants and bars “are potential gathering 

places for the spread of COVID-19” and ordering all restaurants in the County with seating for 

more than eight people to close on-premises service to customers. Specifically, Miami-Dade 

County Emergency Order 03-20 provides, in pertinent part:

1. All restaurants, bars, taverns, pubs, night clubs, banquet halls, cocktail lounges, 

cabarets, breweries, cafeterias, and any other alcohol and/or food service business 

establishment with seating for more than eight people within the incorporated and 

unincorporated areas of Miami-Dade County shall close on-premises service of 

customers.

32. Also on March 17, 2020, the Governor of Florida issued Executive Order 20-68, 

attached as Exhibit D, requiring bars that derive more than 50% of their gross revenue from the 

sale of alcoholic beverages to suspend all sale of alcoholic beverages for thirty days.

33. In light of the CDC’s guidelines to slow the spread of COVID-19, on March 19,

2020 at 9:00 p.m., Mayor Gimenez ordered the closure of non-essential commercial 

establishments, including restaurants with dine-in operations. See Miami-Dade County 

Emergency Order 07-20 attached hereto as Exhibit E. In response, businesses all across MiamiDade County shuttered their operations due to COVID-19, including Town. 

34. Ultimately, on April 1, 2020, Governor DeSantis issued a “Safer at Home” Order, 

Executive Order Number 20-91 mandating that all persons in Florida “limit their movements and 

personal interactions outside of their home to only those necessary to obtain or provide essential 

services or conduct essential activities.”

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35. As a result of these restrictions, most non-essential businesses, including 

restaurants, retail establishments, and entertainment venues, have been forced to close. 

36. Included in many of the closure orders from around the country and within the State 

of Florida are declarations that the virus causes and has caused or imminently threatens physical 

loss or damage to property and human health.

37. For example, on March 16, 2020, the City of New York issued an order stating: 

“the virus physically is causing property loss and damage.” See New York City Emergency 

Executive Order 100 attached as Exhibit F.

38. Similarly, Broward County issued at least two emergency orders recognizing “the 

virus is physically causing property damage due to its proclivity to attach to surfaces for prolonged 

periods of time.” See Broward Cty. Emergency Orders 20-01 & 20-03; see also Walton Cty. 

Resolution 2020-30; City of North Miami “Safer At Home” Emergency Order; City of Aventura 

Order and Supplement to Declaration of State of Emergency; and City of Coral Gables Emergency 

Curfew Order, attached as Composite Exhibit G.

39. On May 15, 2020, the Mayor of Miami-Dade County, Florida issued Emergency 

Order 23-20, attached as Exhibit H, which allowed most establishments, including restaurants, to 

operate, subject to certain restrictions to minimize the spread of COVID-19, including no more 

than 50% occupancy and 6 feet of social distancing for restaurants. Order 23-20 includes 296 

pages of restrictions and guidance for the reopening of business, including 13 pages protocols that 

restaurants must follow in order to reopen, including facility preparation, operational preparations, 

specific table arrangement requirements, employee procedures, etc. A copy of Restaurant 

restrictions are attached as Exhibit I. Significantly, the Restaurant restrictions included in Order 

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23-20 prohibit the sale of alcohol at bar counters.10 Since approximately 50% of Town’s sales 

are from alcoholic beverages, together with the requirement for no more than 50% occupancy, it 

was not economically prudent to resume operations. 

40. On July 7, 2020, however, the Mayor of Miami-Dade County, reversed course and 

ordered the shut-down of indoor dining. Amendment No. 2 to Miami-Dade County Emergency 

Order No. 26-20, attached as Exhibit J, provides:

Commencing at 12:01 a.m., Thursday, July 9, 2020 and notwithstanding any other 

emergency order to the contrary, all restaurants, cafeterias, and other food service 

establishment with seating for more than eight people within the incorporated and 

unincorporated areas of Miami-Dade County shall be limited to offering outdoor onpremises service only. Outdoor service of customers for on-premises consumption shall 

only be offered between the hours of 6:00 a.m. and 10:00p.m. each day and shall close at 

10:00 p.m. Notwithstanding the foregoing, between the hours of 10:00 p.m. and 6:00 a.m., 

such establishments may operate their kitchens only for the purpose of providing delivery 

services, pick-up, room service, or take out services, and employees, janitorial personnel, 

contractors, and delivery personnel shall be allowed access to such establishments. Table 

size at such establishments shall be limited to four persons per table, irrespective of whether 

those persons reside in the same household. Music shall be eliminated or set at a decibel 

level below that of a normal conversation.

Due to the limited number of outdoor tables at Town, and spatial requirement, it was also not 

economically prudent for Town to resume operations with outside seating only. 

41. On July 15, 2020, the Declaration of State of Local Emergency was extended 

because there are over 287,700 cases of COVID-19/novel Coronavirus in Florida, including over 

 10 See Page 29 of Restaurant restrictions, which provides: “All bar counters must remain closed 

to seating.”

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69,000 in Miami-Dade County. As of July 23, 2020, those numbers of positive cases rose to 

389,868 for the State of Florida, with 94,252 of the cases being in Miami-Dade County.11

Town Suffered a Covered Loss

42. The above-referenced civil authority orders and the continuous spread and 

transmission of COVID-19 are covered causes of loss, not otherwise excluded under the all-risk 

Policy.

43. COVID-19 has caused and continues to cause direct physical loss of or damage to 

Town, because the restaurant is unusable for its intended purpose or unsafe for normal human 

occupancy or continued use. The restaurant was insured to be used as a dine-in facility, bar, and 

event space. Because the highly contagious and deadly COVID-19 is physical, spread by humanto- human contact, aerosol, and surface contamination, Town can no longer serve its intended use, 

has suffered physical loss or damage, and has sustained a necessary suspension of its operations.

44. The loss of functionality is no less physical than the impact of a property suffering 

damage from a hurricane that renders it unusable for its intended purpose. Where once the 

property could carry on its business function, the property with a blown away storefront or roof or 

other hurricane damage cannot operate in that way. Where once the property could seat patrons 

at its tables and serve them, it could no longer do so with hurricane damages and/or no roof. Thus, 

the damage of a hurricane causing loss of function of the property and the loss of function caused 

by COVID-19 are one in the same, and such damage is covered under the Policy.

 11 Florida Department of Health COVID-19 Tracker, www.floridahealthcovid19.gov (viewed on 

July 23, 2020.

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45. Moreover, the imminent threat of the presence of COVID-19 in and around the 

area immediately surrounding Town resulted in a direct physical loss of or damage to property, 

such that the continuation of business operations as normal would certainly and unavoidably cause 

physical loss of or damage to the Property, and/or cause further physical loss of or damage to the 

Property.

46. As there is no method to test for the presence of COVID-19 on surfaces, as many 

of those afflicted with COVID-19 are asymptomatic yet able to transmit the virus, and as Town’s 

employees and guests were so numerous, including visitors from other COVID-19 “hot spots,” it 

is statistically certain that the virus was in and on the Property and was and continues to be on 

surrounding properties, and physical loss or damage must thus be presumed.

47. Because of the foregoing, Town has suffered and continues to suffer a loss of 

Business Income.

48. Town’s closure also served to mitigate further loss(es).

49. Town has also suffered a loss of Business Income caused by action of civil 

authority that prohibited access to the Property.

50. Even though the one mile radius is inapplicable, Town is within one mile of many 

restaurants, cafes, bars, a hospital, and other businesses that have also suffered and continue to 

suffer direct physical loss of or damage due to COVID-19 as well as civil authority orders 

restricting and/or barring access to these businesses and properties by customers.

51. In response to the dangerous physical conditions resulting from the presence 

and/or spread of COVID-19, the above-referenced civil authority orders have operated (and 

continue to operate) to prohibit access to Town and the immediately surrounding area.

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52. Town has also incurred and will continue to incur extra expenses during the 

necessary suspension of its business that it would not have incurred if there had been no direct 

physical loss of or damage to the Property caused by or resulting from COVID-19 and/or the 

above-referenced civil authority orders. These include remediation and mitigation costs related to 

cleaning Property and to protect against the spread of COVID-19.

Town’s Claim and the Insurers’ Lack of Meaningful Response

53. Town promptly notified the Insurers of a time-element loss under the Policy. See 

Sworn Statement in Proof of Loss, attached as Exhibit K.

54. The Insurers assigned Claim Number AMFL1720030032 (the “Claim”).

55. On March 30, 2020, Plaintiff contacted Defendants to inquire as to whether 

Defendants are providing coverage under the Policy based on the civil authority action requiring 

Plaintiff to shut down. Defendants’ Claims Adjuster notified Plaintiff that Defendants are “still 

reviewing coverage.” Plaintiff has repeatedly requested that Defendants provide clarity as to 

whether its claim is covered under the policy. On April 10, 2020, Defendants’ Claims Adjuster 

advised Plaintiff that it is “still reviewing” the claim.

56. On May 4, 2020, May 26, 2020, and June 26, 2020, the Insurers, through a thirdparty administrator, advised Town that an investigation of the Claim was underway and requested

additional information. Plaintiff promptly provided written responses to the Insurers’ requests. 

On July 2, 2020, Town provided an extensive amount of financial and operational information 

requested by Defendants.

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57. Just five (5) days after receiving Town’s detailed submission, the Insurers denied 

the Claim, asserting that the Policy excludes loss relating to virus despite the plain language of the 

Policy to the contrary. A copy of the Insurers’ denial letter is attached as Exhibit L.

58. The Insurers issued the declination of coverage without ever accessing, 

inspecting, or testing the Property, or otherwise meaningfully investigating all possible bases 

supporting Town’s Claim.

59. Town has incurred and continues to incur extensive time-element losses. With 

every day that passes without indemnification for covered loss, the restaurant’s future remains 

uncertain.

60. Due to the Insurers’ failure to afford coverage promptly, Town is in doubt of its 

rights under the Policy.

61. Town has substantially performed or otherwise satisfied all conditions precedent 

to bringing this action and obtaining coverage pursuant to the Policy and applicable law, or 

alternatively, Town has been excused from performance by the Insurers’ acts, representations, 

conduct, or omissions.

62. Town has engaged the undersigned firms to represent it in this action, and has 

agreed to pay a reasonable fee for their services.

63. Town offers to do equity in the premises.

V. CLASS ACTION ALLEGATIONS

64. Plaintiff brings this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil 

Procedure on its own behalf and on behalf of all entities that do business in Florida: (1) having the 

same standard commercial property insurance policies with the same language issued by 

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Defendants including business interruption and extra expense coverage that does not exclude 

coverage for pandemics and does not include the standard virus exclusion; and (2) which have 

suffered covered losses as described in this Complaint.

65. Excluded from the Class are Defendants, their affiliates, their subsidiaries, and any 

officers, employees, attorneys, agents, legal representatives, heirs, successors and assigns.

66. Upon information and belief, Defendants sell this type of insurance to thousands of 

businesses across Florida making joinder of all Class members impracticable.

67. There are questions of law and fact that are common to the Plaintiff and the Class, 

including, but not limited to:

a. Whether there is a bona fide dispute between the Parties as to the Parties’ 

rights and obligations under Defendants’ insurance policies; and

b. Whether, properly interpreted under Florida law, Defendants’ Policy 

provides time element coverage for COVID-19 related losses.

68. Plaintiff’s claims are typical of the claims of the Class Members. The practices

alleged herein appear to be a standardized, and are based upon identical policy language. 

69. Plaintiff and counsel will fairly and adequately protect and represent the interest of 

each member of the Class. Plaintiff is committed to the vigorous prosecution of this Action and 

has retained competent counsel experienced in prosecuting both class actions and insurance 

coverage cases. The interests of Plaintiff are consistent with and not antagonistic to those of the 

other Class Members.

70. Pursuant to Rule 23(b)(2), Defendants have acted or refused to act on grounds 

generally applicable to all members of the class, thereby making declaratory relief concerning the 

class as a whole appropriate.

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VI. CAUSES OF ACTION

COUNT I

(BREACH OF CONTRACT)

71. Plaintiff incorporates the allegations in paragraphs 1 through 70 as though fully set 

forth herein.

72. Plaintiff brings this Count on behalf of itself only. 

73. The Policy is a contract under which the Defendants were paid premium in 

exchange for the promise to pay Town for covered losses, including business income, civil 

authority, and extra expense losses.

74. At all times material to this action, Town was insured by Defendants under the 

Policy, which is an enforceable contract under the laws of the State of Florida.

75. The Policy obligates Defendants to indemnify Town for direct physical loss of or 

damage to property as a result of a covered loss under the following insuring agreement:

A. Coverage

We will pay for direct physical loss of or damage to Covered Property at the premises 

described in the Declarations caused by or resulting from any Covered Cause of Loss. 

See Exhibit A. CP 00 10 10 12 at p. 1 of 16.

76. The closure of Town and its ensuing business income, civil authority, and extra 

expense losses are covered losses under the Policy.

77. Defendants have failed and refused to pay Town for losses sustained by Town in 

connection with its closure. 

78. No exclusions in the Policy apply to or bar coverage for Town’s Claim.

79. Town has complied with all terms and conditions of the Policy and/or those terms 

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and conditions have been waived by the Insurers or the Insurers are estopped from asserting them, 

and yet the Defendants have abrogated their obligations under the Policy.

80. As a direct, foreseeable, and proximate result of Defendants’ breach of its duties 

under the Policy, Town has suffered, and continues to suffer, damages, including but not limited 

to those described above and attorneys’ fees, costs, and interest, in an amount to be determined at 

trial.

COUNT II

(Declaratory Relief)

81. Plaintiff incorporates the allegations in paragraphs 1 through 70 as though fully set 

forth herein.

82. Under Fla. Stat. § 86.011, et seq., the court may render declaratory judgments on 

the existence or nonexistence of any “immunity, power, privilege, or right,” or “[o]f any fact upon 

which the existence or nonexistence of such immunity, power, privilege, or right does or may 

depend, whether such immunity, power, privilege, or right now exists or will arise in the future.”

83. There is a bona fide, actual, present practical need for the declaration. Plaintiff and 

the Class’s businesses are currently non-operational, and their ability to survive this pandemic 

depends on their ability to obtain insurance coverage for their losses.

84. The Policy constitutes a valid and binding agreement obligating the Insurers to 

indemnify Town for covered time-element losses.

85. Despite timely notifying the Insurers of its loss and satisfying all conditions 

precedent under the Policy, the Insurers have failed to indemnify Town for its covered timeelement loss(es).

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86. Town has suffered and continues to suffer a covered loss under the Policy.

87. A justiciable controversy exists between the parties as to whether the Policy 

provides coverage for the Claim.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of itself only, requests that the Court:

1. Enter judgment in favor of Town and against Defendants, Certain Underwriters at 

Lloyds, London know as Syndicate ENH 5151, NEO 2468, XLC 2003, TAL 1183, 

TRV 5000, AGR 3268, ACS 1856, NVA 2007, HDU 382, PPP 1980, AMA 1200, 

ASC 1414 and VSM 5678, Indian Harbor Insurance Company, and HDI Global 

Specialty SE, for the full amount of the covered loss; compensatory damages, pre and 

post-judgment interest thereon; costs, and attorneys’ fees pursuant to Fla. Stat. §§

627.428, 626.9373, or applicable law; and

2. Award such other and further relief the Court deems just, proper, and equitable.

WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, also 

requests that the Court:

3. Certify the proposed Class, designate Plaintiff as the named representative of the Class, 

and designate undersigned counsel as Class Counsel; 

4. Issue a Declaratory Judgment declaring (a) Defendants’ all risk policy provides 

coverage for COVID-19 related losses, (b) no exclusion under the Policy 

unambiguously bars or limits coverage for COVID-19 related losses, (c) the Insurers 

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are enjoined from denying claims for COVID-19 related losses on the grounds that the 

virus does not cause physical loss of or damage to property, and;

5. Award such other and further relief the Court deems just, proper, and equitable.

DEMAND FOR JURY TRIAL

Plaintiff, Town Kitchen, LLC, individually and on behalf of others similarly situated, 

demands a trial by jury on all issues so triable.

Dated: July 23, 2020 Respectfully submitted, 

/s/Michael E. Criden

Michael E. Criden (Fla. Bar No. 714356)

Kevin B. Love (Fla. Bar No. 993948)

Lindsey C. Grossman (Fla. Bar No. 105185)

CRIDEN & LOVE, P.A.

7301 SW 57th Court

Suite 515

South Miami, FL 33143

Telephone: (305) 357-9000

Email: mcriden@cridenlove.com

Email: klove@cridenlove.com

Email: lgrossman@cridenlove.com

and

/s/ Jason S. Mazer

Jason S. Mazer (Fla. Bar No. 0149871)

CIMO MAZER MARK, PLLC

100 Southeast Second Street

Suite 3650

Miami, FL 33143

Telephone: (305) 374-6481

Facsimile: (305) 374-6488

Email: jmazer@cmmlawgroup.com

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CERTIFICATE OF SERVICE

I hereby certify that on July 23, 2020, I electronically filed this Response with the Clerk 

of Court using CM/ECF. I also certify that the foregoing document is being served this day on 

parties listed in the below Service List via transmission of Notices of Electronic Filing generated 

by CM/ECF or in some other manner.

/s/ Jason S. Mazer

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SERVICE LIST

John D. Mullen, Essq.

Sarah B. Van Schoyck, Esq.

Jason A. Pill, Esq.

Phelps Dunbar

100 South Ashley Drive

Suite 2000

Tampa, FL 33602-5311

Johm.mullen@phelps.com

Sarah.vanschoyck@phelps.com

Jason.pill@phelps.com

Counsel for Defendants

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