1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CONSOLIDATED ACTION

CASE NO. 20-CIV-61629-WPD

GREAT LAKES INSURANCE SE,

Plaintiff,

v.

SUNSET WATERSPORTS, INC.,

Defendant. /

CASE NO. 20-CIV-61630-WPD

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. /

ORDER ON MOTION FOR SUMMARY JUDGMENT

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 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 1 of 36
2

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. 

I. BACKGROUND1

A. The Applicable Policies and Claims

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 

1 Plaintiffs’ statement of material facts, Defendants’ responsive statement of material facts and additional facts, and 

Plaintiffs’ response to Defendants’ additional material facts include various citations to portions of the record. 

Plaintiffs’ statement of material facts [DE 65] is cited as “PSMF”, Defendants’ response [DE 78] thereto is cited as 

“DSMF”, and Plaintiffs’ response to Defendants’ additional material facts [DE 86] is cited as “PRSMF.” Any 

citations herein to the statements of facts should be construed as incorporating those citations to the record. 2 Sunset Waverunner Tours, Inc. was voluntarily dissolved in 2015 and was never insured by Great Lakes or 

Underwriters. PSMF ¶ 3; DSMF ¶¶ 2-3, 5. 3 The facts of each claim are more fully described in sections III.B.1., III.C., and III.D.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 2 of 36
3

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.

B. Underwriting the Sunset Policies

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 “Mr. Welter is the oldest parasail operator 

in KW. He and his crews are HIGHLY experienced and trained in safe operation. As you can 

see, the parasail operation hasn’t been loss free but INCIDENT FREE for 8+ years.” 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. 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 3 of 36
4

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 

4 The Concept Application does not define the term “you” or “loss.” DSMF ¶ 162; PRSMF ¶ 162.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 4 of 36
5

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.

C. The Present Lawsuit

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 

5 Defendant Andrew Santeiro is an additional insured under the Sunset Watersports Policy and Party Cat Policy by 

virtue of him being scheduled as a Named Operator. To the extent that the Court determines the Policies are void 

from their inception or an applicable exclusion or warranty applies, the same applies to Santeiro. 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 5 of 36
6

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 Judgment, arguing that the Sunset 

Policies are void ab initio under the doctrine of uberrimae fidei or, alternatively, void under 

exclusions and warranties applicable to each of the claims.

II. STANDARD OF LAW

Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). The movant bears “the stringent burden of establishing the 

absence of a genuine issue of material fact.” Suave v. Lamberti, 597 F. Supp. 2d 1312, 1315 

(S.D. Fla. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 

“A fact is material for the purposes of summary judgment only if it might affect the 

outcome of the suit under the governing law.” Kerr v. McDonald’s Corp., 427 F.3d 947, 951 

(11th Cir. 2005) (internal quotations omitted). Furthermore, “[a]n issue [of material fact] is not 

‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ 

or ‘not significantly probative.’” Flamingo S. Beach I Condo. Ass’n, Inc. v. Selective Ins. Co. of 

66 The operative complaint in the Hayward/Silva Claim was subsequently amended by interlineation and Count IV 

was deleted. See [DE 76].

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 6 of 36
7

Southeast, 492 F. App’x 16, 26 (11th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 249–50 (1986)). “A mere scintilla of evidence in support of the nonmoving party’s 

position is insufficient to defeat a motion for summary judgment; there must be evidence from 

which a jury could reasonably find for the non-moving party.” Id. at 26-27 (citing Anderson, 477 

U.S. at 252). Accordingly, if the moving party shows “that, on all the essential elements of its 

case on which it bears the burden of proof at trial, no reasonable jury could find for the 

nonmoving party” then “it is entitled to summary judgment unless the nonmoving party, in 

response, comes forward with significant, probative evidence demonstrating the existence of a 

triable issue of fact.” Rich v. Sec’y, Fla. Dept. of Corr., 716 F.3d 525, 530 (11th Cir. 2013) 

(citation omitted). 

III. DISCUSSION

In moving for summary judgment, Plaintiffs put forth several reasons why the Court 

should find that there was no coverage under the Policies. The first is that the Policies are void 

under the doctrine of uberrimae fidei due to Defendants Sunset Watersports and Sunset Party 

Cat’s failure to accurately disclose its loss histories during the 2019 and 2020 renewal process. 

The second is that, even if the Policies were not void from their inception under the doctrine of 

uberrimae fidei, there is no coverage for each of the claims based on the following: (1) with 

respect to the Hayward/Silva Claim under the Party Cat Policy, there is no coverage because 

parasail accidents do not fall within coverage and/or parasailing is specifically excluded from 

coverage; (2) with respect to the Manderson Claim, there is no coverage because Sunset 

Watersports violated warranties in the policy requiring Manderson to have signed a release; (3) 

with respect to the Hayward/Silva Claim and Arroyo Claim under the 2020-2021 Sunset 

Watersports Policy, there is no coverage because, at the time of both incidents, Sunset 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 7 of 36
8

Watersports was operating its vessel outside the policy’s navigational limits; and (4) with respect 

to the Arroyo Claim under the 2020-2021 Sunset Watersports Policy, there is no coverage 

because the Arroyo Claim is part of the same occurrence and limit as the Hayward/Silva Claim.

As more fully described below, the Court finds as follows: Genuine issues of material 

fact preclude a determination that Plaintiffs are entitled to have the policy declared void under 

the doctrine of uberrimae fidei. Nonetheless, there is no coverage for each of the Claims under 

the Sunset Policies. First, with respect to the Hayward/Silva Claim under the 2020-2021 Sunset 

Party Cat Policy, there is no coverage because the parasail accident does not fall within 

coverage. Second, with respect to the Manderson Claim under the 2019-2020 Sunset Watersports

Policy, there is no coverage because Sunset Watersports violated the release warranty in the 

Towers Endorsement. Third, with respect to the Hayward/Silva Claim and Arroyo Claim under 

the 2020-2021 Sunset Watersports Policy, there is no coverage because Sunset Watersports 

violated the navigational warranty at the time of both incidents, rendering the Policy void from 

inception.

A. Uberrimae Fidei

“It is well-settled that the maritime doctrine of uberrimae fidei is the controlling law of 

this circuit.” HIH Marine Servs. v. Fraser, 211 F.3d 1359, 1362 (11th Cir.2000). The doctrine of 

uberrimae fidei, or utmost good faith, requires an “insurance applicant [to] voluntarily and 

accurately disclose to the insurance company all facts which might have a bearing on the 

insurer's decision to accept or reject the risk.” Certain Underwriters at Lloyds, London v. 

Giroire, 27 F. Supp. 2d 1306, 1311 (S.D. Fla. 1998). The duty extends to all facts which are 

material to the calculation of the insurance risk regardless of whether the insurer, underwriter, or 

application specifically inquires into them. HIH Marine Servs., 211 F.3d at 1362. Under 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 8 of 36
9

Eleventh Circuit precedent, a fact is material if it could “possibly influence the mind of a prudent 

and intelligent insurer in determining whether he would accept the risk.” Kilpatrick Marine 

Piling v. Fireman’s Fund Ins. Co., 795 F.2d 940, 942–43 (11th Cir. 1986) (stating that Eleventh 

Circuit believes the foregoing “to be a correct statement of law”).

“[A]n insurer may void the policy even if the failure to disclose material facts was the 

result of actions by a person acting on behalf of the actual insured.” Great Lakes Reinsurance 

(UK) PLC v. Atl. Yacht & Marine Servs., Inc., No. 07-20295-CIV, 2008 WL 2277509, at *3 

(S.D. Fla. Feb. 26, 2008) (citing Underwriters at Lloyd's v. Giroire, 1998 A.M.C. 2153 

(S.D.Fla.1998); Royal Insurance Co. Of America v. Cathy Daniels, Ltd., 684 F. Supp. 786 

(S.D.N.Y.1986)).

1. Whether Uberrimae Fidei Applies to Sunset Policies

First, the parties dispute whether the maritime doctrine of uberrimae fidei applies to the 

Sunset Policies. Defendants argue that uberrimae fidei cannot and should not apply to the Sunset 

Policies because this case is about watersports tourism and the Eleventh Circuit has never 

applied uberrimae fidei in the marine commercial liability context. In response, Plaintiffs argue 

that uberrimae fidei applies to the Sunset Policies because the rule applies to marine insurance 

generally and, in any event, the carriers provide what is essentially marine hull coverage. 

Plaintiffs further contend that even if uberrimae fidei does not apply to the Policies, General 

Condition L of the Policies and New York state law7 would lead to the same result. Therefore, as 

7 Although the parties dispute whether uberrimae fidei applies to the Policies, they do not dispute what choice of law 

applies. PSMF ¶ 151; DSMF ¶ 151. Under federal maritime choice of law rules, a choice of law provision in a 

marine insurance policy will be applied unless the state in question has no substantial relationship to the parties or 

the transaction or the state’s law conflicts with the fundamental purpose of maritime law. See Great Lakes 

Reinsurance (UK), PLC v. Rosin, 757 F. Supp. 2d 1244, 1250-51 (S.D. Fla. 2010). All three Sunset Policies contain 

the following choice of law clause: “It is hereby agreed that any dispute arising hereunder shall be adjudicated 

according to well-established, entrenched principles and precedents of substantive United States Federal Admiralty 

law and practice but where no such well-established, entrenched precedent exists, this insuring agreement is subject 

to the substantive laws of the State of New York.” [DE 65-7] at p. 21; [DE 65-8] at p. 21; [DE 65-9] at p. 20.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 9 of 36
10

an initial matter, the Court must determine whether uberrimae fidei applies to the Sunset 

Policies.

“Marine insurance contracts are governed by federal maritime law.” Quintero v. Geico 

Marine Insurance Company, 983 F.3d 1264, 1270 (11th Cir. 2020). While the Admiralty Clause 

of the United States Constitution vests the federal courts with jurisdiction to hear maritime 

contract cases, “it does not follow . . . that every term in every maritime contract can only be 

controlled by some federally defined admiralty rule.” Wilburn Boat Co. v. Fireman’s Fund Ins. 

Co., 348 U.S. 310, 313 (1955). In the absence of a judicially established federal admiralty rule, 

courts must rely on state law. Quintero, 983 F.3d at 1270. Although the doctrine of uberrimae 

fidei is “the controlling law of this circuit,” see HIH Marine Servs. v. Fraser, 211 F.3d at 1362, 

the Eleventh Circuit has previously declined to articulate a standard for protection and indemnity

policies. Id. at 1362, n.3 (“Steelmet raised the question of whether the general rule of uberrimae 

fidei applied to protective and indemnity polices as well as to hull policies. This court ultimately 

found it unnecessary to decide the issue. Because the coverage applicable to the defendants in 

this case was hull coverage only, however, there is no question that uberrimae fidei applies 

here.”) (citing Steelmet, Inc. v. Caribe Towing Corp., 747 F.2d 689, 695 (11th Cir. 1984)).

Defendants are correct in asserting that Eleventh Circuit has never applied uberrimae 

fidei to the protective and indemnity context, but Plaintiffs are similarly correct in contending 

that the Eleventh Circuit has also never explicitly precluded its application. The Eleventh Circuit 

has long recognized uberrimae fidei as an established maritime doctrine and has reaffirmed the 

vitality of its application time and time again. See Steelmet, 747 F.2d at 695 (“The general rule of 

marine insurance . . . is well settled in this circuit, and as a clear rule of maritime law it is the 

controlling federal rule even in the fact of contrary state authority.”); HIH Marine, 211 F.3d at 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 10 of 36
11

1362; AIG Centennial Ins. Co. v. O’Neill, 782 F.3d 1296, 1302-03 (11th Cir. 2015). The Court 

does not feel compelled to alter this course now, particularly where Defendants do not dispute 

this Court’s maritime jurisdiction. 

Indeed, other circuits have extended the doctrine to vessel pollution insurance, a type of 

liability insurance separate from hull coverage, because such policies protected against risks that 

are marine in nature. See Certain Underwriters at Lloyds, London v. Inlet Fisheries Inc., 518 

F.3d 645, 654 (9th Cir. 2008) (“[V]essel pollution insurance fits well within the general 

conception of marine insurance, as it is a contract of indemnity triggered by an event that is 

maritime in character.”); see also Fireman’s Fund Ins. Co. v. Great American Ins. Co. of New 

York, 822 F.3d 620, 637 (2d Cir. 2016) (“We conclude that the primary object of the Pollution 

Policy’s coverage of the dry dock was to insure against the risk of liability for pollutants emitted 

during Signal’s ship repair and maintenance operations there. Insurance policies protecting 

against such risks have long been marine in nature.”); see also Folksamerica Reinsurance Co. v. 

Clean Water of New York, Inc., 413 F.3d 307, 321 (2d Cir. 2005) (concluding the same).

The Policies in the instant case insure against the risk of liability associated with the 

operation of Defendants’ watersports businesses, a venture that is sufficiently marine in nature.

Defendants themselves acknowledge the Policies relate to “maritime commerce in the 

watersports tourism arena.” [DE 77], p. 5. That the vessels and associated risks insured involve 

watersports activities does not alter their marine nature. Thus, the Court finds application of 

uberrimae fidei to the Sunset Policies appropriate under these circumstances. 

Defendants express concerns that adopting Plaintiffs’ position would “set a dangerous 

precedent” and “potentially chill maritime commerce in the watersports tourism arena.” 

However, such concerns appear overstated when considering that uberrimae fidei does not void 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 11 of 36
12

coverage unless the omissions or misrepresentations were material. Although minor incidents are 

often inevitable in the watersports tourism industry, it is unlikely that most incidents would meet 

the standard for materiality.

But even if the Court’s application of uberrimae fidei to the Policies is misplaced, 

General Condition L of the Policies still warrants application of uberrimae fidei principles. 

General Condition L of the Policies states: “This contract is null and void in the event of nondisclosure or misrepresentation of a fact or circumstances material to our acceptance or 

continuance of this insurance. No action or inaction by us shall be deemed a waiver of this 

provision.” [DE 65-7] at p. 18; [DE 65-8] at p. 55; [DE 65-9] at p. 16. Case law interpreting 

similar language guide this Court’s analysis. For example, in Quintero v. Geico Marine 

Insurance Co., the court held a general condition stating “[t]here is no coverage from the 

beginning of this policy if an ‘insured’ has omitted, concealed, misrepresented, sworn falsely, or 

committed fraud in reference to any material matter relating to this insurance before or after any 

loss” “mirrors the obligations imposed by uberrimae fidei.” 389 F. Supp. 3d 1153, 1160 (S.D. 

Fla. 2019). Similarly, in Northfield Ins. Co. v. Barlow, the court determined that a clause 

rendering “insurance coverage null and void from its inception” if the applicant made “[a]ny 

misrepresentations” in the “application for insurance” served to “reinforce the principles” of 

uberrimae fidei. 983 F. Supp. 1376, 1380 (M.D. Fla. 1997).

Like the language in these cases, the language of General Condition L of the Sunset 

Policies sets forth a standard for voiding the contract consistent with the doctrine of uberrimae 

fidei. General Condition L declares the insurance contract null and void where “non-disclosure or 

misrepresentation” of a fact “material” to the underwriter’s “acceptance or continuance” of the 

insurance. Indeed, “[t]his language embodies the core of the uberrimae fidei doctrine: that 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 12 of 36
13

omission or misrepresentation of a material fact is a sufficient ground, in and of itself, to allow 

an insurer to void a policy of marine insurance.” QBE Seguros v. Morales-Vazquez, 986 F. 3d 1, 

10 (1st Cir. 2021). 

Further, unlike the cases where courts determined uberrimae fidei did not apply, the 

Sunset Policies impose no requirement that the misrepresentation be intentional. Compare King 

v. Allstate Ins. Co., 806 F.2d 1537, 1539 (11th Cir. 1990) (ruling parties had contracted around 

maritime law and uberrimae fidei when policy became void if insured “intentionally” concealed 

or mispresented material facts) with Quintero, 389 F. Supp. 3d at 1160 (ruling the insurance 

contract reflected the doctrine of uberrimae fidei because it lacked the word “intent”). 

Additionally, New York state law, which governs the policies in the absence of federal admiralty 

law, recognizes the applicability of uberrimae fidei to “contracts and risks that are ‘marine’ in 

nature.” See In re Balfour MacLaine Int'l Ltd., 85 F.3d 68, 81 (2d Cir. 1996); see also Am. Home 

Assur. Co. v. Masters' Ships Mgmt. S.A., No. 03 CIV. 0618 (JFK), 2004 WL 1161223, at *5 n.1

(S.D.N.Y. May 24, 2004) (“It is worth noting that the doctrine of utmost good faith would still 

apply were New York state law to be controlling because New York applies federal maritime 

law to all maritime cases. As such, the doctrine is an established part of New York case law.”).

As the Court previously discussed, the Policies here cover risks associated with watersports 

tourism and therefore appear sufficiently marine in nature. As such, whether the doctrine applies 

under federal maritime law or New York state law, the Court’s application to the Sunset Policies 

is fundamentally the same.

Accordingly, the language in General Condition L of the Policies embodies the doctrine 

of uberrimae fidei and therefore principles of the same apply to the instant action as a matter of 

law. Of course, any omissions must be material for Plaintiffs to void the Sunset Policies. As 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 13 of 36
14

such, the Court must next determine whether Defendants’ failure to disclose prior loss histories 

reaches the materiality threshold.

2. Whether Uberrimae Fidei Voids the Policies

Plaintiffs argue they are entitled to summary judgment because Defendants did not 

disclose that, in the ten years immediately preceding the inception of the Sunset Policies in April 

2016, the Sunset entities sustained twenty losses. There is no genuine issue of fact regarding 

whether any of the twenty losses were disclosed to Great Lakes, though the parties do dispute 

whether the language on the Concept Application required Defendants to disclose such losses.

8

The relevant inquiry here turns on whether the omissions were material to the calculation of 

insurance risk. Based on the following analysis, the Court finds that there are genuine issues of 

fact as to whether these omissions were material.

Plaintiffs provide three bases on which it contends that the Court could find a prudent and 

intelligent insurer could possibly find Defendants’ omissions material—the frequency of the 

losses, the severity of the losses, and the fact that the insured’s agent would unilaterally 

determine when, if at all, to report losses. The twenty incidents described in Plaintiffs’ statement 

of facts are, for the most part, undisputed. For purposes of efficiency, the Court summarizes 

some of the omissions identified as “more egregious” by Plaintiffs:

• An incident on March 10, 2011, in which a vessel owned by Sunset Island Party sank in 

inclement weather, for which Navigators paid $162,243;

• An incident on August 17, 2013, in which a crewmember sustained back injuries while 

working on a dock, for which Navigators paid $220,056;

8 Defendants specifically point out ambiguities on the Concept Application regarding “you or any named operator” 

and “loss.” However, the duty of utmost good faith applies to all facts which are material to the insurance risk, 

regardless of whether specifically inquired into. HIH Marines Servs., 211 F.3d at 1362; see also O’Neill, 782 F.3d at 

1304 (11th Cir. 2003) (“The federal maritime doctrine of uberrimae fidei . . . governs this dispute, and it provides no 

refuge in claiming ambiguity.”).

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 14 of 36
15

• An incident on October 5, 2012, in which the insured’s vessel struck a dinghy, for which 

Navigators paid $136,083;

• An incident on November 16, 2013, involving a banana boat collision and that resulted in 

litigation, for which Navigators paid $42,106; and

• An incident on April 18, 2014, involving a passenger who alleged injuries from being 

thrown from a kayak, for which Navigators paid $4,972.

PSMF ¶¶ 39, 42-43, 45-46; DSMF ¶¶ 39, 42-43, 45-46.9

The underwriter who issued the Policies and each of the renewals, Mr. Usher, 10 has 

testified that had he known about the twenty incidents, he would not have underwritten the risk.

PSMF ¶¶ 66-67; DSMF ¶¶ 66-67. Moreover, the Defendants notified Mr. Fields of the July 5, 

2016, July 8, 2016, August 1, 2016, and April 21, 2019 incidents, but Mr. Fields did not report 

the incidents to Hull & Company or Great Lakes. PSMF ¶¶ 70-71; DSMF ¶¶ 70-71. Mr. Usher 

testified that had Great Lakes and Underwriters known that Mr. Fields was deciding what claims 

or incidents to report, they would not have written the Sunset Policies. PSMF ¶ 73; DSMF ¶ 73.

Plaintiffs also point to the Underwriting Procedures, which state that underwriters “look 

for patterns where in certain circumstances there is a reasonably predictable outcome,” and 

consider “past loss records on boats as well as on the land.” PSMF ¶¶ 63-64; DSMF ¶¶ 63-64. 

The Underwriting Procedures further state an owner is probably uninsurable if there are more 

than three losses. PSMF ¶ 65; DSMF ¶ 65.

In their Response in Opposition, Defendants argue that the materiality of the omissions 

are genuinely disputed. Defendants contend that Mr. Usher’s statements are merely subjective 

opinions regarding whether he would have underwritten the risk, not whether a reasonable 

insurer would. In response, Plaintiffs argue that Mr. Usher’s testimony is enough to prove 

9 These incidents and others are more fully described in PSMF ¶¶ 39-58 and DSMF ¶¶ 39-58. 10 Mr. Usher is the managing director of Concept Special Risks and has been underwriting marine insurance policies 

in the United States for approximately 30 years. PSMF ¶ 15; DSMF ¶ 15.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 15 of 36
16

materiality and cite to certain cases where courts have found materiality met based on the 

testimony or affidavit of an underwriter. 

The Court generally agrees with Plaintiffs that testimony of a carrier’s underwriter may

support a finding of materiality. However, at least two of the cases cited by Plaintiffs relied on 

the fact that the underwriter’s testimony was unrebutted or uncontradicted. See Certain 

Underwriters at Lloyds, London v. Giroire, 27 F. Supp. 2d 1306, 1313 (S.D. Fla. 1998) (“To 

establish materiality, Lloyds provided the unrebutted affidavit of Mr. Burke A. Usher, an 

underwriter for Lloyds, in which Usher testifies that had Lloyds received a truthful ‘yes’ answer 

to the question whether the boat was used for racing, Lloyds would have declined coverage. In 

light of such uncontradicted evidence, the Court finds that the misrepresentation was material as 

a matter of law.”) (emphasis added); see also St. Paul Fire and Marine Ins. Co. v. Hailfax 

Trawlers, Inc.. 495 F. Supp. 2d 232, 242 (D. Mass. 2007) (noting that the insured failed to “offer 

the testimony of any expert or insurance underwriter to rebut the statements of [the insurer’s 

underwriter] that the prior incident would influence a reasonable underwriter’s judgment”). 

Moreover, AIG Centennial Ins. Co. v. O’Neill was decided after a bench trial, and not at the 

summary judgment stage. 2013 WL 10450139. 

The present case is distinguishable from the authority relied upon by Plaintiffs. Here, 

Defendants offer the testimony of their expert, Michael Fitzgerald,11 to rebut Mr. Usher’s 

testimony. Mr. Fitzgerald is a former underwriter with over 40 years of an experience as a 

marine broker and underwriter. DSMF ¶ 178; PRSMF ¶ 178. Mr. Fitzgerald opined that based on 

his experience and industry standards, a reasonable insurer would underwrite the Policies based 

11 Mr. Fitzgerald’s opinion has also been separately challenged in Plaintiffs’ Daubert Motion. See [DE 75]. On 

October 22, 2021, the Court denied the Daubert Motion on grounds that the considerations of ensuring only reliable 

testimony are less concerning at a bench trial. See [DE 96].

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 16 of 36
17

on a five-year loss history, as opposed to the nine plus years advocated by Plaintiffs. DSMF ¶ 

181. Mr. Fitzgerald also opined that an underwriter considers an insured’s overall loss ratio in 

deciding whether to accept or renew a risk. DSMF ¶ 185. He determined that, based upon review 

of Plaintiffs’ “Chart of Incidents and Losses,” a reasonable and prudent insurer would not 

consider the incidents material to the risk Plaintiffs seek to void. DSMF ¶ 186. Specifically, he 

found that the undisclosed incidents either: (1) occurred more than five years before the April 

2016 acceptance of the risk; (2) occurred more than five years before the April 2020 renewal; (3) 

involved other entities or operators that were never insured by the carriers and do not have a 

connection to risks associated with parasailing; or (4) occurred after the policies were issued. 

DSMF ¶ 187.

While the Court acknowledges the contradictions and inconsistences identified by 

Plaintiffs in Mr. Fitzgerald’s testimony and report, see, e.g., PRSMF ¶¶ 181-82, 186-88, the 

Court is similarly skeptical of the testimony of Mr. Usher, who stated that he does not “really 

have the expertise to write this type of risk.” PSMF ¶¶ 16-17; DSMF ¶¶ 16-17. Viewing all 

evidence and factual inferences in Defendants’ favor, the Court finds a genuine dispute as to 

whether the prior undisclosed losses were material. For example, genuine disputes exist as to 

whether losses related to the other Sunset entities would be considered by a reasonable 

underwriter. Genuine disputes also exist as to what frequency and severity of incidents an 

underwriter of watersports policies would consider material in an industry that, by its nature, 

inevitably involves more minor incidents.

Though the frequency and severity of the losses certainly could support the conclusion 

that an intelligent and reasonably prudent insurer would have found the representations material, 

materiality can be decided as a matter of law only “if reasonable minds could not differ on the 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 17 of 36
18

question.” O’Neill, 782 F.3d at 1305 n.10. While the issue of materiality is a close one, 

Fitzgerald’s testimony is sufficient to raise genuine issues of material fact as to whether the 

omitted information would be material.

12 Accordingly, the Court declines to grant summary 

judgment on this ground.

B. Whether There is Coverage for the Hayward/Silva Claim

The Court next turns to the question of coverage. Other than the doctrine of uberrimae 

fidei, Plaintiffs contend there is no coverage for the Hayward/Silva Claim because: (1) under the 

2020-2021 Sunset Party Cat Policy, parasail accidents do not fall within coverage and are 

otherwise specifically excluded from coverage; and (2) under the 2020-2021 Sunset Watersports 

Policy, the carriers violated the navigational warranty by operating the Parasail V more than one 

mile offshore. For the reasons stated below, the Court finds no coverage for the Hayward/Silva 

Claim under both Policies. 

1. Coverage Under the 2020-2021 Sunset Party Cat Policy

As an initial matter, Defendants argue that a determination of Plaintiffs’ duty to 

indemnify Sunset Party Cat is not ripe for adjudication until resolution of the underlying suit. 

The Court disagrees.

To ascertain whether the duty to defend has been triggered under New York law, a court 

will compare the allegations of the complaint to the insurance policy’s terms. See Burt Rigid 

Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 97 (2d Cir. 2002). Where allegations in a 

complaint fall within the scope of the risks undertaken by the insurer, regardless of how false or 

12 The Court acknowledges Plaintiffs other arguments relating to uberrimae fidei, including the undisputed fact that 

the Defendants have not offered any expert testimony as to whether Defendants omissions were material to the 

2019-2020 Sunset Watersports policy during the time in which the Manderson claim occurred. PSMF ¶¶ 75-76; 

DSMF ¶¶ 75-76. Nonetheless, because the Court finds the Claims are not covered for the reasons sated infra, it is 

unnecessary to address such arguments.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 18 of 36
19

groundless those allegations might be, there is a duty to defend. Century 21, Inc. v. Diamond 

State Ins. Co., 442 F.3d 79, 82 (2d Cir. 2006). To relieve the insurer of the duty to defend, there 

must be “no possible factual or legal basis on which an insurer’s duty to indemnify under any 

provision of the policy could be held to attach.” Id. at 82-83. Further, where “there is no duty to 

defend, there also is no corresponding duty to indemnify.” Ogden Corp. v. Travelers Indem. Co., 

924 F.2d 39, 42 (2d Cir. 1991); see also Atlantic Cas. Ins. Co. v. Value Waterproofing, Inc., 918 

F. Supp. 2d 243, 261-62 (S.D.N.Y. 2013). Therefore, contrary to Defendants’ assertions, the 

Court need not defer ruling on the duty to indemnify claims until the state court action has been 

resolved if, as a matter of law, it determines there is no duty to defend. The Court must therefore 

turn to the applicable policy language.

The 2020-2021 Sunset Party Cat Policy provides the following coverage for commercial 

passengers:

Subject to our prior written agreement and your payment of an additional 

premium, we may at your request extend this insuring agreement to cover all 

sums which you become legally liable to pay and shall pay to fare paying 

passengers or passengers carried under charter as a result of your ownership or 

operation of the Scheduled Vessel.

PSMF ¶ 143; DSMF ¶ 143. 

The facts of the tragic parasailing incident that is the subject of the Hayward/Silva Claim 

are not in dispute: On July 17, 2020, Nicholas Hayward and Azalea Silva were passengers 

aboard a vessel known as the “Party Cat,” owned and operated by Sunset Party Cat. PSMF ¶¶ 

98-99; DSMF ¶¶ 98-99. The Party Cat dropped anchor near Pearl Bank, and Hayward and Silva 

disembarked from the Party Cat and boarded the Parasail V. PSMF ¶¶ 100-01; DSMF ¶ 100-01. 

The Parasail V proceeded into the Northwest Channel and, in the near vicinity of channel marker 

no. 9, Hayward and Silva went up in the parasail. PSMF ¶¶ 103-04; DSMF ¶ 103-04. While 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 19 of 36
20

Hayward and Silva were up in the air and tethered to the Parasail V, the line tying them to the 

Parasail V snapped. PSMF ¶ 107; DSMF ¶ 107. Hayward and Silva fell and crashed into the 

water. PSMF ¶ 108; DSMF ¶ 108; see also [DE 89-1] at ¶ 26. Hayward was still alive when he 

was recovered from the water but was later pronounced dead. PSMF ¶¶ 120-21; DSMF ¶¶ 120-

21. Silva suffered severe injuries and passed away on July 1, 2021, almost a year after the tragic 

incident. PSMF ¶ 122; DSMF ¶ 122; [DE 89-1] at ¶ 2. In the Fourth Amended Complaint in the 

underlying Hayward/Silva Claim, the Hayward and Silva estates bring claims for wrongful death 

negligence (Counts IV and IX) and joint venture (Counts V and X). See [DE 89-1].

Plaintiffs argue that the Hayward/Silva Claim is not covered by the 2020-2021 Party Cat 

Policy because Hayward and Silva’s injuries were not the “result” of Sunset Party Cat’s 

“ownership or operation” of the scheduled vessel. In response, Defendants argue there is a 

genuine dispute as to whether any liability that may result from the Hayward/Silva Claim would 

be a “result of” Sunset’s operation of said vessel. It is undisputed that the vessel named the Party 

Cat was scheduled on the policy, but the Parasail V was not. DSMF ¶ 140; DSMF ¶ 140. Thus, 

the question is whether Hayward or Silva’s injuries were “a result of” Sunset Party Cat’s

“ownership or operation” of the Party Cat.

The primary dispute among the parties is what “as a result of” means under New York 

law. Plaintiffs urge this Court to consider a three-part test under New York law applicable to 

automobile policies and adopted by at least one court in this district. The test provides that when 

determining whether a particular injury “results[s] from the ownership, maintenance or use of a 

covered auto,” three factors must be met: (1) “[t]he accident must have arisen out of the inherent 

nature of the automobile”; (2) “[t]he accident must have arisen within the natural territorial limits 

of an automobile, and the actual use, loading, or unloading must not have been terminated”; and 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 20 of 36
21

(3) “[t]he automobile must not merely contribute to cause the condition which produces the 

injury, but must, itself produce the injury[.]” U.S. Oil Ref. & Mtg. Corp. v. Aetna Cas. & Sur. 

Co., 581 N.Y.S. 2d 822, 823-24 (N.Y. App. Div. 1992). In other words, although the vehicle 

itself need not be the proximate cause of the injury, negligence in the use of the vehicle must be 

shown, and that negligence must be a cause of the injury. Somers Cent. Dist. v. Lumbermens 

Mut. Cas. Co., 774 N.Y.S.2d 824, 825 (N.Y. App. Div. 2004).

Defendants dispute application of the test, contending that it covers auto policies and has 

never been applied by a New York state court in the maritime context. However, Defendants fail 

to make a persuasive case for any other standard applying New York law and instead rely on 

cases applying Florida law. For example, Defendants cite to Travelers Prop. Cas. Co. of Am. v.

Barkely and New Hampshire Ins. Co. v. Champion to suggest that the Court adopt a broader 

reading of “as a result of.” But both cases rely on the Florida Supreme Court’s decision in 

Taurus Holdings, Inc. v. U.S. Fid. And Guar. Co., 913 So. 2d 528 (Fla. 2005), a case that 

abrogated the three-part test for automobiles under Florida law. See Travelers Prop. Cas. Co. of 

Am. v. Barkely, No. 16-61768-CIV-ALTONAGA, 2017 WL 3593953 (S.D. Fla. Aug. 21 2017) 

(finding passenger’s death occurred “‘as a result’ of the operation of the Vessel if his death 

originated from, grew out of, flowed from, was incident to, or had a connection with operation of 

the Vessel—constituting more than a mere coincidence”) (citing Taurus, 913 So. 2d at 539); see 

also New Hampshire Ins. Co. v. Champion, No. 6:12-cv-1832-Orl-22GJK, 2013 WL 12156445, 

at *6 (M.D. Fla. Nov. 25, 2013) (“Perhaps most importantly, the Florida Supreme Court held 

after Race that the phrase ‘arising out of’ in insurance contracts is ‘unambiguous and should be 

interpreted broadly’ to mean ‘originating from, having its origin in, growing out of, flowing 

from, incident to, or having a connection with.’”) (citing Taurus, 913 So. 2d at 539). As 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 21 of 36
22

Plaintiffs point out, no such abrogation exists under New York law and Defendants do not offer 

case law suggesting otherwise.

Without persuasive authority arising under New York law to the contrary, this Court “can 

see no principled or textual reason to treat the insuring provision of an automobile policy

differently than a virtually identical insuring provision of a vessel policy.” See Boat Rental 

Miami, Inc., 2020 WL 2300090 at *6. Thus, the Court finds the test appropriate to guide the 

analysis on this issue.

Applying the test, Plaintiffs argue that Hayward and Silva’s injuries do not meet any of 

the three prongs. First, Plaintiffs contend that Hayward and Silva’s injuries did not arise out of 

the inherent nature of the Party Cat because they were not injured on the Party Cat. Second, 

Plaintiffs assert that Hayward and Silva’s injuries did not arise within the natural territorial limits 

of the Party Cat, as those injuries occurred when Hayward and Silva were more than four 

nautical miles away from the Party Cat. Finally, Plaintiffs assert that the Party Cat itself did not 

produce Hayward or Silva’s injuries and is, at most, a but-for cause of Hayward and Silva’s 

injuries.

In addition to contesting the use of the three-prong test, Defendants argue that even under 

the test from U.S. Oil, an accident need not occur on the insured vehicle so long as the accident is 

“the result of some act or omission related to the use of the vehicle.” See Eagles Ins. Co. v. Butts, 

269 A.D.2d 558, 558 (N.Y. App. Div. 2000). In response, Plaintiffs argue that Eagles Ins. Co. v. 

Butts counsels against Defendants’ position. The Court agrees. 

In Eagles Ins. Co. v. Butts, the plaintiff in the underlying action was leading a horse from 

a van an attached ramp when the horse bucked, throwing the plaintiff to the ground. Id. at 558. 

The plaintiff alleged the accident was caused by the horse and van owner’s negligent training of 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 22 of 36
23

the horse, and the automobile insurer denied coverage. Id. Applying New York law, the court 

determined that the owner’s acts or omissions involved prior training of the horse, not that the 

owner “used the van negligently or that the condition of the van in any way contributed to the 

accident.” Id. at 559. As such, the court found no coverage. Id.

Similarly, the operative complaint in the Hayward/Silva Claim makes no allegations 

regarding negligent use of the Party Cat itself, nor does it make allegations regarding how the 

condition of the Party Cat in some way contributed to Hayward and Silva’s injuries. Defendants 

argue that the operative complaint alleges various theories as to how Sunset Party Cat caused or 

contributed to the Hayward/Silva accident: by failing to “warn passengers of the dangerous 

weather and risks they would encounter” and by failing to “turn back, limit, or terminate any of 

the excursions” in light of dangerous weather conditions. [DE 89-1] at ¶¶ 23, 51. But these 

allegations do not relate to the ownership or operation of the Party Cat nor do they demonstrate 

that the Party Cat did “not merely contribute to cause the condition which produces the injury, 

but . . . itself, produce[d] the injury.” See Boat Rental Miami, 2020 WL 2300090, at *5-6. Rather, 

these allegations appear to relate to Sunset Party Cat the entity’s involvement in the negligence 

that occurred aboard the Parasail V, not any negligence in the use of the Party Cat itself.

Further supporting Plaintiffs’ arguments, it is undisputed that neither Hayward nor Silva 

was aboard the Party Cat at the time of the incident. PSMF ¶ 118; DSMF ¶ 118. The underlying 

complaint plainly alleges that Hayward and Silva were transferred onto another vessel operated 

by Sunset Watersports before the accident occurred. [DE 89-1] at ¶ 23. Although Sunset Party 

Cat’s use of the Party Cat to transport Hayward and Silva to the Parasail V may have been a butfor cause of Hayward and Silva’s injuries, the injuries neither arose from the intrinsic nature of 

the Party Cat nor did the Party Cat itself produce the injury. See Boat Rental Miami, 2020 WL 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 23 of 36
24

2300090, at *8 (“[W]hether Counter-Plaintiffs’ ownership or operation of the boat was a ‘butfor’ cause of [the underlying plaintiff’s] injury is not the relevant inquiry; rather, it is whether 

negligent use of the boat allegedly contributed to her injury.”); see also Matter of Manhattan & 

Bronx Surface Transit Operating Auth., 420 N.Y.S.2d 298, 299 (N.Y. App. Div. 1979). 

In sum, the four corners of the underlying complaint in the Hayward/Silva Claim do not 

demonstrate Sunset Party Cat’s negligent use of the Party Cat contributed to the accident. 

Therefore, the Hayward/Silva Claim was not a result of ownership or operation of the vessel 

under the Sunset Party Cat Policy, and Plaintiffs do not have a duty to defend Sunset Party Cat in 

the Hayward/Silva lawsuit. As such, they have no duty to indemnify Sunset Party Cat as to this 

claim. See Atlantic Cas. Ins. Co., 918 F. Supp. 2d at 261-62. The Court therefore need not 

address whether the towing exclusion applies to bar coverage.

2. Coverage Under the 2020-2021 Sunset Watersports Policy

The Court next addresses whether there is coverage for the Hayward/Silva Claim under 

the 2020-2021 Sunset Watersports Policy.

The 2020-2021 Sunset Watersports Policy contains the following navigational warranty: 

“Warranted that each Scheduled Vessel is confined to Florida-not to exceed the offshore limits as 

stated on the attached schedule of vessels.” PSMF ¶ 125; DSMF ¶ 125. The schedule of vessels 

on the Policy lists the offshore limits for all three parasail vessels insured by Great Lakes, 

including the Parasail V, as being “1 mile.” PSMF ¶ 127; DSMF ¶ 127. The Policy further 

defines “navigational limits” as “all waters as limited and shown on the declaration page unless 

mutually agreed by us and amended in writing.” PSMF ¶ 128; DSMF ¶ 128. The Policy’s Claims 

Guidance clarifies that “[w]here we have advised a miles offshore limit this means that this is the 

farthest your vessel must be from land (within your defined navigation limits). For example, 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 24 of 36
25

Lake Michigan only—not to exceed 15 miles offshore.” PSMF ¶ 129; DSMF ¶ 129. Critically, 

the Policy provides that “[w]here any term herein is referred to as a ‘warranty’ or where any 

reference is made herein to the word ‘warranted’, the term shall be deemed a warranty and 

regardless of whether the same expressly provides that any breach will void this insuring 

agreement from inception, it is hereby agreed that any such breach will void this policy from 

inception.” PSMF ¶ 126; DSMF ¶ 126.

“[F]ederal maritime law requires ‘strict’ or absolute enforcement of express navigational 

warranties.” GEICO Marine Ins. Co. v. Shackleford, 945 F.3d 1135, 1142 (11th Cir. 2019). In 

fact, “the breach of a navigation limit warranty bars coverage as a matter of maritime law even 

when the breach is unrelated to the loss.” Travelers Prop. Cas. Co. of Am. v. Ocean Reef 

Charters LLC, 996 F.3d 1161, 1168 (11th Cir. 2021). Moreover, under New York law 

interpreting general rules of contract construction, breach of a marine insurance policy only 

suspends coverage during the period of non-compliance. See Henjes v. Aetna Ins. Co., 132 F.2d 

715, 718-19 (2d Cir. 1943). Nevertheless, an insurer may specify that any breach forfeits 

coverage if it explicitly and clearly indicates that such breach permanently ends coverage. See 

Cunningham v. Ins. Co. of N. Am., 521 F. Supp. 2d 166, 169 (E.D.N.Y. 2006) (citing Henjes, 32 

F.2d at 719); see also Smith v. Nw. Fire & Marine Ins. Co., 246 N.Y. 349, 361, 159 N.E. 87, 91

(1927) (“[A] supervening breach shall do no more than suspend the obligation of the policy, and 

that the obligation shall revive when the defect has been corrected, unless indeed there is an 

express provision that the effect of any breach shall be to end the policy forever.”).

Defendants do not argue that the one-mile navigational warranty is ambiguous. Nor do 

Defendants argue that ambiguity exists with regards to the language dictating that any breach of 

a warranty “will void this policy from inception.” Considering this and upon careful review of 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 25 of 36
26

the Policy and relevant provisions, the Court finds that the unambiguous policy language

requires that any breach of a warranty under the Policy, including the navigational warranty, 

voids the policy from its inception. Therefore, at issue is whether Sunset Watersports was more 

than one mile from land on the date of the incident. The Court finds that the answer to that 

question is yes.

Plaintiffs contend that the unrebutted evidence shows that the Hayward/Silva Claim

occurred nowhere near land, and certainly not within a nautical mile of land. In support of this 

contention, Plaintiffs rely on the opinion of expert Captain Christopher Karentz.13 Captain 

Karentz opined that the parasailing incident occurred more than one nautical mile14 from the 

nearest shoreline, and that transit to the same location required piloting the vessel more than one 

nautical mile from the nearest shoreline. PSMF ¶¶ 105-06, 110-11. Captain Karentz further 

opined that the “partially submerged East Jetty of the Northwest Channel is not considered to be 

shoreline or land. The East Jetty is considered to be a danger or obstruction to navigation.” 

PSMF ¶¶ 110-11. This interpretation is consistent with the Eleventh Circuit’s interpretation of 

the purpose of navigational warranties: “[N]avigation warranties ensure that when ‘little 

problems’ arise on ‘little vessels,’ the masters will seek refuge close to shore where the vessels 

will be exposed to fewer risks than they would meet on the high seas.” Lexington Ins. Co. v. 

Cooke's Seafood, 835 F.2d 1364, 1367 (11th Cir. 1988).

In a footnote in their response in opposition, Defendants contend that testimony of 

Captain Santeiro and Mr. Welter raise genuine factual issues regarding the navigational warranty 

13 Captain Karentz has been working as a Senior Marine Consultant for ten years and has over forty years of 

knowledge and experience in the marine industries. [DE 65-70] at p. 22. 14 The policy does not define mile as an ordinary mile (5,280 feet) or a nautical mile (6,076 feet). Captain Karentz 

indicated that he used nautical miles (the greater distance) to evaluate the location of the Parasail V. See [DE 65-70] 

at p. 10.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 26 of 36
27

that should be resolved at trial. Defendants, however, ultimately fail to raise a genuine dispute as 

to whether the East Jetty constitutes land or whether the subject vessel violated the one-mile

navigational warranty on the day of the incident. Defendants dispute application of the 

navigational warranty based on Mr. Welter’s testimony that the Hayward/Silva incident occurred 

“within a half a mile of the northwest jetty that sticks out at all times.” DSMF ¶¶ 110-11. But 

neither Defendants nor Mr. Welter articulate what “land” means, and Mr. Welter admits that he 

does not know whether the East Jetty would be considered land. [DE 78-1], 178:19-179:10. This 

admission is further bolstered by the undisputed testimony of those working for Sunset 

Watersports, including Mr. Welter himself, who indicated that had Sunset Watersports known 

the navigational limit was only one mile, they would not have been operating in the Northwest 

Channel. PSMF ¶ 135; DSMF ¶ 135. Specifically, Mr. Welter testified:

Q: So with a one-mile limit, could your guys have operated out in the tip of the 

northwest channel?

A: No, they wouldn’t have been there. If they stayed by land, yes, it’s within a 

mile of land. But would they have been out there had they known it was a one 

mile? Absolutely not.

Id.

Furthermore, Defendants fail to support the contention that a jetty is land with any 

applicable case law or legal argument. “Issues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are deemed waived. It is not 

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court 

to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997)); see also

N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a 

perfunctory manner, without supporting arguments and citation to authorities, are generally 

deemed to be waived.”) (citing Continental Tech. Serv., Inc. v. Rockwell Int'l Corp., 927 F.2d 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 27 of 36
28

1198, 1199 (11th Cir. 1991)). Without a substantive response, the Court finds this argument fails 

to raise a genuine issue of material fact as to whether Sunset Watersports was within one mile of 

“land” on the date of the incident.

Defendants also point to Captain Andrew Santeiro’s testimony that he did not know the 

exact location of the Parasail V at the time of the incident. DSMF ¶¶ 109, 112, 115-17. Though 

this might raise a dispute regarding the exact location of the vessel, this testimony does not rebut 

Captain Karentz’s finding that the East Jetty is located at such a point that Sunset Watersports 

would have had to violate the navigational warranty to get there. See [DE 65-70] at p. 19. Under 

the explicit terms of the policy, any breach voids the Policy from inception. Thus, regardless of 

whether the East Jetty constitutes “land” and regardless of whether Captain Santeiro knew the 

exact location of the Parasail V at the time of the incident, the unrebutted evidence leads to the 

same result. Given the essentially unrebutted findings of Captain Karentz, the Court finds that 

Sunset Watersports operated the Parasail V more than one mile offshore on the date of the 

Hayward/Silva Claim. Accordingly, because the undisputed evidence shows that Sunset 

Watersports breached the navigational warranty, the Policy is void as a matter of law.

Finally, because Defendants spend considerable time arguing against application of the 

navigational warranty under the doctrine of equitable estoppel, this argument merits discussion.

Under New York law, “the doctrine of equitable estoppel can be applied to prevent an insurer 

from asserting valid defenses or exclusions to coverage.” Mattimore v. Patroon Fuels, Inc., 103 

A.D.2d 981, 982 (N.Y. App. Div. 1984). The insured must show that he has been prejudiced by 

the insurer’s actions and that he has relied on some conduct of the insurer to his detriment. Id.

In their response in opposition, Defendants argue that Plaintiffs are estopped from 

asserting no coverage on the basis of the navigational warranty because Defendants represented 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 28 of 36
29

that coverage would extend ten miles offshore. In support of this argument, Defendants point out 

that in early March 2020, Neil Burton, an underwriter for Concept Special Risks, emailed Catie 

Brugman at Hull & Company, attaching a quote for Sunset Watersports that provided “not to 

exceed 10 miles offshore” for the navigational warranty. DSMF ¶ 209. Defendants further 

contend that, over the next two months, as discussions over the quote continued, the ten-mile

offshore limit was included in at least three separate versions of the quote. DSMF ¶¶ 131, 210, 

213-15. In response, Plaintiffs argue that the quote erroneously contained a ten-mile navigational 

limit because of a mistake. PSMF ¶ 131; PRSMF ¶ 209. Nevertheless, it is undisputed that the 

one-mile navigational warranty was included in both the binder and final policy, which were

provided to Mr. Fields prior to the Hayward/Silva incident. PSMF ¶ 132-33; DSMF ¶ 123-33. It 

is further undisputed that Mr. Fields was the Defendants’ retail insurance agent. PSMF ¶ 68; 

DSMF ¶ 68.

As Plaintiffs point out, the general rule of New York insurance law is that estoppel 

cannot create coverage where none exists. Downstairs Cabaret, Inc. v. Wesco Ins. Co., 187 

A.D.3d 1642, 1643 (4th Dept. 2020); see also QBE Americas, Inc. v. ACE Am. Ins. Co., 164 A.D. 

3d 1136, 1139 (4th Dept. 2018) (“[A]s a general rule, estoppel cannot be used to create coverage 

where none exists and each insurer has the right . . . to rely upon the terms of its own contract 

with its insured.”) (internal citations and quotations omitted). However, an exception exists 

where an insurer who undertakes to defend an insured “unreasonably delays in disclaiming 

coverage and the insured suffers prejudice as a result of that delay.” See James River Ins. Co. v. 

Power Mgmt., Inc., 55 F. Supp. 3d 446, 455 (E.D.N.Y. 2014) (quoting Bluestein & Sander v Chi. 

Ins. Co., 276 F.3d 119, 122 (2d Cir. 2002)). 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 29 of 36
30

Here, Defendants do not argue Plaintiffs delayed in disclaiming coverage or that they 

have been prejudiced by such delay. Nor do Defendants cite to any cases applying estoppel to an 

insurance company’s pre-policy conduct. Indeed, all the cases cited by Defendants refer to

representations and conduct of the insurer that arose after the Policy was final, after the loss 

occurred, on grounds of the insurer’s delay in disclaiming coverage. See Frazier v. Royal Ins. 

Co. of Am., 110 F. Supp. 2d 110, 115-16 (N.D.N.Y. 2000) (applying the doctrine of equitable 

estoppel where the insurer unreasonably delayed in disclaiming coverage for over sixteen months 

after the subject incident); Mattimore, 103 A.D.2d at 982 (discussing whether actions taken by 

an insurance agent after the subject incident led the insured to believe the insurer would cover 

the loss); Incorporated Village of Pleasantville v. Calvert Ins. Co., 204 A.D.2d 689, 690 (N.Y. 

App. Div. 1994) (finding that the insurance company’s eight-month delay in disclaiming 

coverage was unreasonable as a matter of law); K. Bell & Associates, Inc. v. Lloyd’s 

Underwriters, 827 F. Supp. 984, 988-89 (S.D.N.Y. 1993) (“[Plaintiff]’s complaint asserts that 

[the insurer] should be estopped from invoking a policy exclusion to deny coverage six and onehalf years after the notice of claim was filed.”). Absent an argument that Plaintiffs unreasonably 

disclaimed coverage, the Court does not feel compelled to craft a new exception to the general 

rule that estoppel cannot be used to create coverage where none exists.15 Therefore, equitable 

estoppel does not bar Plaintiffs from relying on the navigation warranty to void the Policy.

Finally, regardless of whether Defendants ultimately read the Policy or whether Mr. 

Fields communicated the change in terms to Defendants, “[u]nder New York law, in the absence 

of fraud or other wrongful conduct, a party who signs a written contract is conclusively 

15 To the extent that Defendants are attempting to argue that Sunset Watersports was never notified of the change in 

terms and therefore could not agree to the terms, the result would no different. “[I]f there is no meeting of the minds 

on all essential terms, there is no contract.” See Prince of Peace, Enters., Inc. v. Top Quality Food Mkt., LLC, 760 F. 

Supp. 2d 384, 397 (S.D.N.Y. 2011). And if there is no contract then there must certainly be no coverage.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 30 of 36
31

presumed to know its contents and to assent to them, and he is therefore bound by its terms and 

conditions.” Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 

42, 46 (2d Cir. 1993). “This rule is applicable to insurance contracts as to contracts of any other 

kind.” Metzger v. Aetna Ins. Co., 125 N.E. 814, 816 (N.Y. 1920). It is undisputed that Mr. Fields 

was the Defendants’ retail agent. PSMF ¶¶ 68-69; DSMF ¶¶ 68-69. Under New York insurance 

law and common law, “insurance brokers act as agents on behalf of the insured where they are 

employed by the insured to procure insurance.” Evvtex Co., Inc. v. Hartley Cooper Assocs. Ltd., 

102 F.3d 1327, 1331-32 (2d Cir. 1996) (citation omitted). Although the Court acknowledges that 

Mr. Fields received the final Policy but never provided a copy of the Policy to Mr. Welter until 

after the Hayward/Silva incident, see PSMF ¶¶ 133-34; DSMF ¶¶ 133-34, these facts are 

insufficient to permit the Court to rewrite the insurance policy to create coverage.

In sum, because there is no coverage for the Hayward/Silva Claim because Sunset 

Watersports violated of the navigational warranty on the day of the incident, Plaintiffs have no 

duty to defend Sunset Watersports in the underlying suit. As such, Defendants have no duty to 

indemnify Sunset Watersports as to this claim. See Atlantic Cas. Ins. Co., 918 F. Supp. 2d at 

261-62.

C. Whether There is Coverage for the Manderson Claim

Other than the doctrine of uberrimae fidei, Plaintiffs contend there is no coverage for the 

Manderson Claim because Sunset Watersports violated warranties in the policy requiring 

Manderson to have signed a release.

The 2019-2020 Sunset Watersports Policy includes the following warranty in its Towers 

Endorsement: “Prior to allowing a participant to go aboard the watercraft(s) or to participate in 

an activity, each participant and/or passengers will be required to sign an Assumption and 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 31 of 36
32

Acknowledgement of Risks (hereafter ‘Release’) form provided by or approved by us.” [DE 65-

7] at p. 24. The Towers Endorsement further provides that “[f]ailure to comply with any one of 

the above warranties will render this policy null and void.” Id. The policy separately states that 

“all participants will sign a pre-approved release of liability, regardless of whether they are 

paying or complimentary and prior to the commencement of the charter, unless otherwise agreed 

by underwriters.” Id. at 3. 

The parties agree that New York law governs the interpretation of the applicable 

warranties. Under New York law, ambiguities are resolved in favor of the insured. See Duane 

Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 600 F.3d 190, 201 (2d Cir. 2010). However, if 

an insurance policy is “clear and unambiguous,” it must be given its “plain and ordinary 

meaning.” Dalton v. Harleysville Worcester Mut. Ins. Co., 557 F.3d 88, 90 (2d Cir. 2009); see 

also Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir, 2002) (“The New 

York Approach to the interpretation of contracts of insurance is to give effect to the intent of the 

parties as expressed in the clear language of the contract.”). “Language in an insurance contract 

will be deemed ambiguous if reasonable minds could differ as to the meaning.” Haber v. St. Paul 

Guardian Ins. Co., 137 F.3d 691, 695 (2d Cir. 1998).

The facts of the Manderson Claim are not in dispute:

[O]n or about July 2, 2019, while the Parasail V was docked, Debra Manderson, 

with the assistance of the captain and mate on either side of her and her husband 

in front of her, sat down on the dock to ease her way down onto the boat. She then 

allegedly stepped down on the gunwale with her right foot and stepped down to 

the cushioned seat with her left foot with the assistance of both the captain and 

mater. Her left foot allegedly rolled over injuring her ankle.

PSMF ¶ 85; DSMF ¶ 85. It is also undisputed that Manderson never signed a liability waiver. 

PSMF ¶ 87; DSMF ¶ 87.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 32 of 36
33

The Court finds that the Tower Endorsement unambiguously applies to the Manderson 

Claim. The Court reads the provision to require a passenger and/or participant to sign a release 

prior to the earlier of boarding the watercraft or participating in the activity. This reading makes 

sense when considering that the Towers Endorsement applies to many activities where boarding 

a watercraft is not required such as water skiing or knee boarding. Thus, the use of the word “or” 

sweeps in those situations in which boarding a watercraft does not apply. This straightforward 

interpretation also sweeps broadly to cover scenarios in which a passenger may board a 

watercraft but never actually participate in an activity. This reading is further supported by the 

undisputed testimony of the Captain and Mate for the Parasail V, Miles Hudson and Matt 

Bowman, who both testified that the release is supposed to be signed prior to passengers 

boarding the vessel on the dock. PSMF ¶ 93; DSMF ¶ 93.

Defendants argue that the use of the term “or” creates an ambiguity as to when and how 

many times a participant and/or passenger must sign a release waiver for coverage to exist. To 

the extent that Defendants are implying that Sunset Watersports may elect when to have 

participants sign releases, either prior to boarding or prior to participating in an activity, 

Manderson never signed a release at any time. Moreover, such a reading essentially reads the 

first part out of the warranty. Under Defendants’ reading, a hypothetical scenario is possible 

where a passenger boards a parasailing vessel but never actually parasails. In such a situation, the 

passenger boarded a vessel but never signed a release, despite the requirement that a participant 

and/or passenger sign a release “[p]rior to . . . go[ing aboard the watercraft[].” The Court will not 

adopt such a constrained reading, particularly where, under New York law, “language must be 

read, where possible, to give meaning to each word.” Charter Oak Fire Ins. Co. v. Zurich Am. 

Ins. Co., 462 F. Supp. 3d 317, 329 (S.D.N.Y. 2020).

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 33 of 36
34

Accordingly, because Manderson never signed a release prior to boarding the Parasail V,

and the policy warranted that a release be signed, the unambiguous language voids coverage for 

the Manderson Claim. As such, Defendants have no duty to indemnify Sunset Watersports as to 

this claim. See Atlantic Cas. Ins. Co., 918 F. Supp. 2d at 261-62. The Court therefore need not 

address whether the release warranty on the declarations page applies.

D. Whether There is Coverage for the Arroyo Claim

Finally, Defendants contend there is no coverage for the Arroyo Claim under the 2020-

2021 Sunset Watersports Policy because the carriers violated the navigational warranty. On the 

same day and time as the Hayward/Silva Claim, Sarah and Ryan Arroyo were aboard the Parasail 

V. PSMF ¶ 153; DSMF ¶ 153. In response to Sunset Watersports’ Petition for Exoneration from 

or Limitation of Liability, the Arroyo’s alleged the following:

On or about July 17, 2020, SUNSET commenced the subject excursion 

notwithstanding severe weather, rough seas, dangerously high winds, and explicit 

warnings from other excursion guests. After SUNSET navigated the subject 

vessel away from shore, the SUNSET crew members launched two passengers on 

a parasail when suddenly and without warning, the vessel severely listed (tilted) 

for a prolonged period of time, and to such an extent that it did not immediately 

regain its upright position, causing Plaintiffs to fall and slide to one side of the 

subject vessel and sustain severe injuries. Shortly after the vessel stopped 

violently listing, the vessel severely listed again, causing Plaintiffs to fall onto the 

lower side of the subject vessel, and, as a result, Plaintiffs sustained bodily injury 

and mental anguish, including fear of capsizing or sinking, with physical 

manifestations of psychological injuries. 

PSMF ¶ 154; DSMF ¶ 154.

As the Court explained in Section III.B.2., Sunset Watersports violated the navigational

warranty on the date of the Hayward/Silva Claim and Arroyo Claim. Under the strict terms of the

Policy regarding warranties, see PSMF ¶ 126; DSMF ¶ 126, this renders the 2020-2021 Sunset 

Watersports Policy void ab initio. See supra. Therefore, Defendants as a matter of law have no 

duty to defend Sunset Watersports in the underlying Arroyo Claim and therefore have no duty to 

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 34 of 36
35

indemnify Sunset Watersports as to this claim. See Atlantic Cas. Ins. Co., 918 F. Supp. 2d at 

261-62.

Finally, Plaintiffs requested declaratory relief in the alternative as to the number of 

occurrences in the Hayward/Silva Claim and Arroyo Claim to the extent that coverage is found 

under the policies. As the Court has already determined that there is no coverage for either claim, 

the Court need not address the parties’ arguments as to whether the number of occurrences is ripe 

for review. 

IV. CONCLUSION

For the reasons explained above, Plaintiffs’ motion for summary judgment is granted. 

First, there is no genuine issue of material fact that underlying allegations in the Hayward/Silva 

Claim are not covered by the 2020-2021 Sunset Party Cat Policy because the incident was not “a 

result of” Sunset Party Cat’s ownership or operation of the Party Cat. Second, there is no genuine 

issue of material fact that the navigational warranty was violated on the day of the 

Hayward/Silva Claim, rendering the 2020-2021 Sunset Watersports Policy void from inception 

under the plain terms of the Policy. Finally, there is no genuine issue of material fact that there is 

no coverage for the Manderson Claim, as Sunset Watersports violated the unambiguous 

provision requiring a release be signed.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion for Summary Judgment [DE 66] is GRANTED for the 

reasons stated herein.

2. Pursuant to Fed. R. Civ. P. 58(a), the Court will enter a separate final judgment.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, 

this 8th day of November, 2021.

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 35 of 36
36

Copies furnished to:

All Counsel of Record

Case 0:20-cv-61629-WPD Document 105 Entered on FLSD Docket 11/08/2021 Page 36 of 36