UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:20-cv-22899-BB 

UTOPIA KIDS, INC. d/b/a DENNY’S 

CHILDREN’S WEAR 

Plaintiff, 

 

vs. 

CERTAIN UNDERWRITERS AT 

LLOYD’S, LONDON 

and 

NATIONAL FIRE & MARINE 

INSURANCE COMPANY 

and 

CRUM & FORSTER SPECIALTY 

INSURANCE COMPANY 

Defendants. 

___________________________________/ 

DEFENDANTS’ MOTION TO DISMISS THE PLAINTIFF’S AMENDED 

COMPLAINT 

Defendants, Certain Underwriters At Lloyd’s, London, National Fire & Marine 

Insurance Company And Crum & Forster Specialty Insurance Company (hereinafter 

“Defendants”) file this their Motion to Dismiss the Amended Complaint filed by Plaintiff, 

Utopia Kids, Inc. d/b/a Denny’s Children’s Wear and assert the following in support of 

that motion: 

I. THE PLAINTIFF HAS FAILED TO PLEAD THE FACTS NECESSARY TO 

ESTABLISH DIVERSITY JURISDICTION 

1. The Plaintiff asserts that this court has subject matter jurisdiction over its 

action pursuant to 28 U.S.C. § 1332, because there is complete diversity of citizenship 

between Plaintiff and the Defendants. 

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2. Plaintiff asserts that “[A]t all relevant times, Plaintiff is a corporation 

authorized to do business and doing business in the State of Florida, Counties of Palm 

Beach and Broward. Plaintiff is a corporate citizen of the State of Florida with a 

principal place of business located at 19595B State Road 7, Boca Raton, Florida 33498. 

Denny’s owns, controls and operates its business in Florida at the following location: a. 

19595 FL-7 RT 441, Boca Raton, Florida 33498 

3. Plaintiff has asserted that “Defendant Certain Underwriters at Lloyd’s, 

London (“Lloyd’s”) is composed of separate syndicates, in turn comprised of entities 

known as “Names,” which underwrite insurance in a market known as Lloyd’s of 

London. Each “Name” and syndicate is organized under the laws of the United 

Kingdom and is located in and has its principal place of business in England. At all 

relevant times, Lloyd’s subscribed to Policy Number 09-7590145598-S-00 issued to the 

Plaintiff for the period of September 16, 2019 to September 16, 2020. (See Policy 

attached as Doc 1 Exhibit “A”). Defendant is transacting in the business of insurance in 

the State of Florida and within the Counties of Palm Beach and Broward and the basis 

of this suit arises out of such conduct.” Plaintiff’s assertions are factually incorrect. 

4. Defendant Certain Underwriters at Lloyd’s, London (“Lloyd’s”) is 

composed of separate syndicates, which in turn are comprised of members who can be 

companies, partnerships or individuals. The two syndicates have large numbers of 

members that subscribe to the policy at issue. In the case of one syndicate at issue in 

this case, a number of the members are actually Members’ Agent Pooling 

Arrangements (MAPAs). The MAPAs potentially have hundreds of underlying members 

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including very small participations (less than 0.1%). All, or nearly all of, the members of 

the MAPAs participate via UK domiciled limited liability vehicles. 

5. The Ultimate owners of the MAPA limited liability vehicles may be 

companies, partnerships or individuals. These members may reside in the USA, 

including Florida. Plaintiff has failed to identify the members at issue or pled that the 

amount at issue against each member meets or exceeds the jurisdictional amount. 

6. Plaintiff has asserted that the matter in controversy exceeds in the 

aggregate the sum of $75,000, exclusive of interest and costs. However, the claims of 

a single plaintiff against multiple defendants can be aggregated for jurisdictional 

purposes only if the defendants are jointly liable to the plaintiff on each claim. See, e.g., 

Tolbert v. Cook, CA 8:13-03312-GRA, 2014 WL 1652434, at *2 (D.S.C. Apr. 23, 2014). 

“This rule is applicable to suits against two or more insurance companies, each of which 

has separately insured against a stated risk for a sum less than the jurisdictional 

amount.” Id. (citing Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th 

Cir.1961)). 

7. Where the liability alleged is separate, rather than joint, aggregation is not 

permitted even if the claims arise out of the same transaction. Id. (citing Ex Parte 

Phoenix Ins. Co., 117 U.S. 367, 369, 6 S.Ct. 772, 29 L.Ed. 923 (1886) and Jewell, 290 

F.2d at 13 (holding that “no joint liability of the defendant insurance companies” existed 

to “permit[ ] the claims against them to be joined for determining jurisdiction”)); see also 

Liberty Mut. Fire Ins. Co. v. Hayes, 122 F.3d 1061, at *2 (4th Cir. Sept. 15, 1997) (“[i]f a 

single plaintiff joins several parties as defendants, the plaintiff may not aggregate the 

various claims unless the defendants’ liability is common, undivided, or joint”). 

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Moreover, “[a]ggregation is keyed to the type of recovery, not the factual relatedness of 

the claims.” Hayes, 122 F.3d 1061, at *2 (finding that the plaintiff could not aggregate 

claims against multiple insurers where he had not stated a joint and several claim 

against them); see also James W. Moore et al., Moore's Federal Practice ¶ 0.97[2] (2d 

ed. 1995) (“Basically, aggregation is allowed when the defendants' liability to the plaintiff 

is common, undivided, or joint. It is not allowed when the defendants' liability is several, 

or if the claims against them are separate and distinct from one another.”). 

8. The Plaintiff attaches the Policy as Exhibit “A” to their complaint (see Doc 

1). 

9. The Subscription Policy Notice (Policy form ICAT 51 SUBNOT (12 14)) in 

Plaintiff’s Exhibit “A” to Doc 1 provides that: 

The Insurer Participation Schedule (Form ICAT® 50 SCH) attached to and 

part of this policy identifies the Insurer(s) providing coverage under this 

policy. No Insurer(s) other than those listed on the Insurer Participation 

Schedule are providing coverage under this policy. 

Where the Insurer Participation Schedule attached to and part of this 

policy indicates an Insurer under this policy as “Lloyd’s” followed by a 

number, this designation means that the Insurer is a certain Syndicate at 

Lloyd’s, London. Each Syndicate should be identified as “Underwriters at 

Lloyd’s, London, [Syndicate Name/Number]. (Exhibit “A” to Doc 1) 

10. The Insurer Participation Schedule (Form ICAT® 50 SCH (02 14)) in 

Plaintiff’s Exhibit “A” identifies the insurers who subscribed to the policy and who 

provide coverage under the Policy. The form provides: 

INSURER PARTICIPATION SCHEDULE 

PRO RATA SHARES APPLICABLE TO THIS POLICY 

Coverage under this Policy is provided by the subscribing insurers listed below: 

PERIL INSURER(S) CONTRACT PERCENT 

Case 1:20-cv-22899-BB Document 32 Entered on FLSD Docket 08/21/2020 Page 4 of 13
NUMBER PARTICIPATION 

AP Lloyd's 4242 B607400002V17NW 35 % 

EB Lloyd's 4242 B607400002V17NW 100 % 

AP National Fire & 

Marine Insurance 

Company 

42-IPA-167741-01 25 % 

AP Lloyd's 1458 B1776XB201112L 20 % 

AP Crum and Forster 

Specialty 

Insurance 

Company 

ICT 614041 20 % 

Definitions 

Perils 

AP: All perils covered under the policy not otherwise specifically defined in this Insurer 

Participation Schedule. 

EB: Equipment Breakdown as per ICAT SCOL 150. 

(See Policy attached as Doc 1 Exhibit “A”) 

11. Two Lloyd’s syndicates are named as Defendants. As noted above, the 

jurisdictional amount must be met as to each constituent Name or member. As 

explained by the Eleventh Circuit, the Society of Lloyd's, London, is not an insurance 

company, but a British organization that provides infrastructure for the international 

insurance market. Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 

1083 (11th Cir. 2010). Lloyd’s itself does not insure any risk. Id. Rather, it is individual 

underwriters, referenced as “Names,” who assume the risk. Id. Names can be either 

people or corporations, who sign up for certain percentages of risks across different 

policies. Id. Names underwrite insurance through syndicates, which are 

unincorporated administrative entities that bear no risk on the policies they underwrite. 

Id. Syndicates “operate as an aggregation of individual members with individual 

contracts and obligations running to the insured.” Id. at 1089. The constituent Names 

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of a syndicate are severally liable to the policy holder for their respective share of the 

risk. Id. at 1083, 1089. 

12. Thus, because one Name is not liable for the risks that the other Names 

assume, each individual Name must meet the amount in controversy for purposes of the 

jurisdictional amount. See, e.g., Lloyd's v. Gailes, 4:16-CV-77-DMB-JMV, 2016 WL 

3033741, at *4 (N.D. Miss. May 26, 2016) (finding that the plaintiff could not aggregate 

its claims against individual Names, and that “it must plead that the $75,000 

jurisdictional amount is met for each Name”) (emphasis in original); Rips, LLC v. 

Underwriters at Lloyd’s London, No. CIV.A. 14-1969, 2015 WL 2452339, at *2 (E.D. La. 

May 21, 2015) (the jurisdictional minimum must be met as to each individual Name); G 

& M Holding, Inc. v. Certain Underwriters at Lloyd's of London, Civ. A. No. 07–4883, 

2008 WL 215842, *2 (E.D.La. Jan. 23, 2008) (granting dismissal because plaintiff failed 

to assert facts to establish that the jurisdictional amount was met as to each Name sued 

under the policy and because at least one Name was non-diverse); E.R. Squibb & 

Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 933 (2nd Cir. 1998) (holding that 

because the Names were severally liable under the insurance policy in question, their 

liability could not be aggregated to meet the jurisdictional minimum). 

13. Here, the Amended Complaint does not allege that the amount in 

controversy is met as to each constituent Name or Member of each Lloyd’s syndicate 

named as Defendant. See supra Lloyd's, 2016 WL 3033741, Rips, LLC, 2015 WL 

2452339, G & M Holding, Inc., 2008 WL 215842. Thus, facially, the Amended 

Complaint fails to properly identify each member of the Lloyds syndicates, plead the 

citizenship of each member of the Lloyds syndicates or plead that the jurisdictional 

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amount is met as to each member. The Amended Complaint thus fails to assert the 

facts necessary to establish jurisdiction and should therefore be dismissed. 

II. PLAINTIFF’S ACTION FOR DECLARATORY REPLIEF FAILS TO STATE A 

CAUSE OF ACTION UNDER 28 U.S.C. § 2201(a) 

14. The Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides that in “a 

case of actual controversy within its jurisdiction . . . any court of the United States, upon 

the filing of an appropriate pleading, may declare the rights and other legal relations of 

any interested party seeking such declaration, whether or not further relief is or could be 

sought.” 28 U.S.C. § 2201(a). 

15. In Count I of the Amended Complaint, Plaintiff purports to seek declaratory 

relief – a ruling by the Court that the insurance policy provides coverage for the alleged 

losses. However, the Amended Complaint also asserts a breach of contract count for 

each type of alleged loss. The respective breach of contract and declaratory relief 

counts are premised on the same factual disputes and seek a determination of 

coverage available for Plaintiff’s claimed losses. In such a circumstance, “Plaintiff will 

be able to secure full, adequate and complete relief through the breach of contract 

claim,” and its claims for declaratory judgment should be dismissed. Fernando Grinberg 

Trust Success Int. Properties, LLC v. Scottsdale Ins. Co., No. 10-20448-Civ, 2010 WL 

2510662, at *1 (S.D. Fla. June 21, 2010). As explained in Fernando Grinberg Trust 

Success Int. Properties: 

A court may declare the rights and other legal relations of any interested 

party in the case of an actual controversy within its jurisdiction. 28 U.S.C. 

§ 2201. Florida Statute Section 86.021 provides for the declaration of 

rights or status where a party to an agreement is in doubt as to his or her 

rights. City of Hollywood v. Fla. Power & Light, Co., 624 So.2d 285 (Fla. 

Dist. Ct. App. 1993). The only relevant inquiry in a motion to dismiss a 

declaratory judgment action is whether or not the plaintiff is entitled to a 

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declaration of rights. Toban v. Am. Sec. Ins. Co., No. 06-61912-Civ, 2007 

WL 1796250, at *2 (S.D. Fla. June 20, 2007); see also Gov’t Emp. Ins. v. 

Anta, 379 So.2d 1038, 1039 (Fla. Dist. Ct. App. 1980). “[A] trial court 

should not entertain an action for declaratory judgment on issues which 

are properly raised in other counts of pleadings and already before the 

court, through which the plaintiff will be able to secure full, adequate and 

complete relief.” McIntosh v. Harbour Club Villas, 468 So.2d 1075, 1080-

81 (Fla. Dist. Ct. App. 1985) (Nesbitt, J. specially concurring); see also 

Taylor v. Cooper, 60 So.2d 534, 535-36 (Fla. 1952). Id. 

16. “The Declaratory Judgment Act permits actual controversies to be settled 

before they ripen into violations of law or a breach of contractual duty.’” Eisenberg v. 

Standard Ins. Co., No. 09-80199-CIV, 2009 WL 3667086, at *2 (S.D. Fla. Oct. 26, 2009) 

(quoting 10B C. Wright & A. Miller, Federal Practice & Procedure, Civil 3d § 2751 

(2004)). Asking the Court to declare whether the Defendant properly performed under 

the policy, however, is not a proper use of the declaratory judgment act. Where, as 

here, a plaintiff believes that the insurance policy does, in fact, provide coverage, the 

plaintiff is actually seeking a judicial declaration that the defendant has breached the 

policy. As explained in Eisenberg: 

A petition seeking declaratory judgment that alleges breach of duties and 

obligations under the terms of a contract and asks the court to declare 

those terms breached is nothing more than a petition claiming breach of 

contract. It thus provides an adequate remedy at law, and a decision on 

the merits of the breach of contract claim would render the [plaintiff’s] 

request for declaratory judgment moot or redundant. 

Id. at *2-3 (quoting Amerisure Mut. Ins. Co. v. Maschmeyer Landscapers, 

Inc., 2007 WL 2811080 (E.D. Mo. 2007)). 

17. Put simply, there is no need for such a judicial declaration because 

Plaintiff has not identified confusion, ambiguity or the need for judicial interpretation of 

the policy itself. The proper cause of action for such a dispute lies in contract. The 

Count for Declaratory Relief is unnecessary and duplicative of the Breach of Contract 

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Counts. It has been held that “[a] court must dismiss a claim for declaratory judgment if 

it is duplicative of a claim for breach of contract and, in effect, seeks adjudication on the 

merits of the breach of contract claim.” Miami Yacht Charters, LLC v. National Union 

Fire Ins. Co. of Pittsburgh, PA, No. 11-21163-CIV, 2012 WL 1416428, at *2 (S.D. Fla. 

Apr. 24, 2012) (citations omitted). 

18. Plaintiff did not assert that the language of the contract is uncertain or 

ambiguous. Instead, Plaintiff asserts that they had no choice but to comply with the 

Civil Authority Orders entered to stem the spread of the Corona virus. Plaintiff asks the 

Court to find that, in light of their compliance, it would simply be against public policy to 

find that Plaintiff resulting business losses, business interruption and extended 

expenses would not be covered by the contract. 

19. Plaintiff does not allege any ambiguity in the policy itself. Instead, they are 

seeking a determination of coverage, which is duplicative of its Breach of Contract 

Counts that are premised on the allegations that Defendant breached the policy by not 

extending coverage for the Plaintiff’s claims. Consequently, even if all of Plaintiff’s 

allegations are taken as true, the allegations of contractual non-payment do not trigger 

the need for declaratory relief. See Barrett v. Pickard, 85 So. 2d 630, 631-632 (Fla. 

1956) (holding that provisions of the instrument clear and free of ambiguities leaving 

only an issue of damages are not properly ascertainable under Declaratory Relief 

Statute); Reddick v. Christie, 226 So. 2d 434, 436-437 (Fla. 4th DCA 1969). 

III. PLAINTIFF’S AMENDED COMPLAINT FOR BREACH OF CONTRACT 

AND FOR DECLARATORY REPLIEF FAILS TO JOIN AN INDISPENSIBLE 

PARTY 

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The policy at issue lists two named insureds, the Plaintiff and A&D World, LLC. 

The Amended Complaint deletes Plaintiff’s co-insured, A&D World, LLC as a Plaintiff 

which had been named as a Plaintiff in the original Complaint. In doing so Plaintiff 

purports to pursue the full amount of the policy without regard to the joint and indivisible 

interest of its co-insured, A&D World, LLC in the insurance proceeds. The Defendants 

respectfully assert that the omission of Plaintiff’s co-insured, A&D World, LLC, leaves 

them subject to a substantial risk of incurring double or otherwise inconsistent 

obligations. As a consequence, the Federal Rules dictate that the Court order that A&D 

World, LLC be made a party. Federal Rule of Civil Procedure 19(a) states in relevant 

part: 

(a) Persons to be Joined if Feasible. 

(1) Required Party. A person who is subject to service of process and whose 

joinder will not deprive the court of jurisdiction over the subject matter of 

the action shall be joined as a party in the action if 

(A) in that person’s absence, the court cannot afford complete relief 

amongst existing parties, or 

(B) that person claims an interest relating to the subject of the action and 

is so situated that the disposition of the action in in the person’s 

absence may 

(i) as a practical matter impair or impede the person’s ability to 

protect the interest or 

(ii) leave an existing party subject to a substantial risk of incurring 

double, multiple, or otherwise inconsistent obligations by reason 

of his claimed interest. 

(2) Joinder by Court Order. If a person has not been joined as required, the 

court must order that the person be made a party. A person who refuses 

to join as a plaintiff may be made either a defendant or, in a proper case, 

an involuntary plaintiff. 

Case 1:20-cv-22899-BB Document 32 Entered on FLSD Docket 08/21/2020 Page 10 of 13
The Amended Complaint deletes Plaintiff’s co-insured, A&D World, LLC as a 

Plaintiff. In doing so, Plaintiff subjects Defendants to a substantial risk of incurring 

double or otherwise inconsistent obligations. As a consequence, the Defendants 

respectfully request that the Court order that A&D World, LLC be made a party. 

WHEREFORE, the Defendants, CERTAIN UNDERWRITERS AT LLOYD’S, 

LONDON, NATIONAL FIRE & MARINE INSURANCE COMPANY and CRUM & 

FORSTER SPECIALTY INSURANCE COMPANY, respectfully prays for judgment in its 

favor, costs of this action and such other relief as the Court deems appropriate under 

the circumstances. 

BUTLER WEIHMULLER KATZ CRAIG LLP 

s/ John V. Garaffa 

WILLIAM R. LEWIS, ESQ. 

Florida Bar No.: 0879827 

wlewis@butler.legal 

JOHN V. GARAFFA, ESQ. 

Florida Bar No.: 86022 

jgaraffa@butler.legal 

Secondary: bbroderick@butler.legal 

 afreeman@butler.legel 

400 North Ashley Drive, Suite 2300 

Tampa, Florida 33602 

Telephone: (813) 281-1900 

Facsimile: (813) 281-0900 

Attorneys for Defendant, Certain Underwriters at 

Lloyd’s London, National Fire & Marine Insurance 

Company and Crum & Forster Specialty Insurance 

Company 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 21, 2020, I electronically filed the foregoing with 

the Clerk of the Court by using the CM/ECF system which will send a notice of 

electronic filing to: 

Aaron S. Podhurst 

Steven C. Marks 

Podhurst Orseck 

1 SE 3rd Avenue, Suite 2300 

Miami, FL 33131 

apodhurst@podhurst.com 

smarks@podhurst.com 

Attorneys for Plaintiffs 

Daniel P. Buttafuoco 

Pro Hac Vice Forthcoming 

Daniel P. Buttafuoco & Associates, PLLC 

144 Woodbury Rd 

Woodbury, New York 11797 

DButtafuoco@ButtafuocoLaw.com 

Attorneys for Plaintiffs 

Richard M. Golomb, Esq. 

Kenneth J. Grunfeld, Esq. 

Pro Hac Vice Forthcoming 

GOLOMB & HONIK, P.C. 

1835 Market Street, Suite 2900 

Philadelphia, PA 19103 

rgolomb@golombhonik.com 

kgrunfeld@golombhonik.com

Attorneys for Plaintiffs 

Arnold Levin, Esq. 

Frederick Longer, Esq. 

Daniel Levin, Esq. 

Pro Hac Vice Forthcoming 

LEVIN SEDRAN & BERMAN, L.L.P. 

510 Walnut Street, Suite 500 

Philadelphia, PA 19106-3697 

alevin@lfsblaw.com

flonger@lfsblaw.com 

dlevin@lfsblaw.com 

Attorneys for Plaintiffs 

Case 1:20-cv-22899-BB Document 32 Entered on FLSD Docket 08/21/2020 Page 12 of 13
W. Daniel “Dee” Miles, III 

Rachel N. Boyd 

Paul W. Evans 

Pro Hac Vice Forthcoming 

BEASLEY, ALLEN, CROW, METHVIN, 

PORTIS & MILES, P.C. 

P.O. Box 4160 

Montgomery, AL 36103 

dee.miles@beasleyallen.com 

rachel.boyd@beasleyallen.com 

paul.evans@beasleyallen.com 

Attorneys for Plaintiffs 

s/John V. Garaffa______________ 

JOHN V. GARAFFA 

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