T2544858.DOCX;1 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CASE NO. 5:20-CV-00143-TKW-MJF

J.W. MARINER CORPORATION, 

Plaintiff, 

v. 

ZURICH AMERICAN

INSURANCE COMPANY, 

Defendant. 

_________________________________/

AMENDED COMPLAINT

Plaintiff, J.W. Mariner Corporation, through undersigned counsel, files 

this amended complaint. Plaintiff sues Defendant, Zurich American 

Insurance Company, and alleges:

Jurisdictional Basis and Venue

1. Through this action, Plaintiff seeks declaratory relief requiring the 

Defendant to participate in the contractual appraisal process and for a 

court determination of the rights and duties of the parties regarding an 

examination under oath provision in an insurance contract between the 

parties. 
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2. The Court has diversity jurisdiction over this case and controversy 

pursuant to 28 U.S.C. § 1332. 

3. Plaintiff is a Florida corporation with a principal address in Florida. 

4. Defendant at all material times is and was a New York Corporation 

engaged in the insurance business with a statutory home office located 

in New York, New York and a principal place of business in 

Shaumburg, Illinois. 

5. Venue is proper with this Court because (1) a substantial part of the 

events giving rise to the action occurred in Bay County, Florida and (2) 

the damaged property at issue is located in Bay County, Florida. 

6. This is an action in which the amount in controversy exceeds seventyfive thousand dollars ($75,000.00), exclusive of pre-judgment interest, 

court costs and attorneys’ fees. 

COUNT 1—CLAIM FOR DECLARATORY JUDGMENT (DEFENDANT 

SHOULD BE REQUIRED TO RESOLVE THE AMOUNT IN 

DIFFERENCE BETWEEN THE PARTIES FOR THE LOSS)

7. Plaintiff re-incorporates the allegations contained in paragraphs 1-6 as 

if fully set forth herein. 

8. In exchange for premium dollars, Defendant issued Plaintiff a policy of 

insurance for Plaintiff’s property located at 615-637 N HWY 231 

Panama City, Florida 32405. Policy, Exhibit A. The coverage period 
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for the policy commenced on September 19, 2018 and ended on 

September 19, 2019. Plaintiff paid all premiums on the insurance 

policy. 

9. During the policy period, on or about October 10, 2018, Hurricane 

Michael damaged the Plaintiff’s insured property. The loss was 

covered under the policy. Plaintiff timely reported the loss. 

10. Defendant retained an adjusting firm, JS Held, to inspect the 

loss. Based on the JS Held estimates, Defendant issued payments to 

the Plaintiff in the total amount of $1,903,144.07. Accordingly, 

Defendant provided coverage for the loss. 

11. Defendant’s payment to Plaintiff, however, was far less than the 

total amount of covered damages sustained by the Plaintiff. For 

instance, the public adjuster retained by Plaintiff estimated that the 

total replacement cost value amount to the Plaintiff’s property was 

$5,452,822.65 and the actual cash value amount was $4,324,948.83.

12. The insurance policy Defendant issued contains an appraisal 

clause. In relevant part, the policy’s appraisal clause provides:

If we and you disagree on the value of the property or the amount of the loss, either may make 

written demand for an appraisal of the loss. In this event, each party will select a competent, 

disinterested, and impartial appraiser who has no direct or indirect financial interest in the claim. 

The two appraisers will select an umpire. If they cannot agree, either may request that selection of 

an umpire be made by a judge of a court having jurisdiction. The appraisers will state separately 

the value of each item of lost or damaged property as of the date of loss and amount of loss in 

accordance with the Valuation provisions of the applicable Coverage Form or, if not stated, the 
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"actual cash value" and "replacement cost". If they fail to agree, they will submit their differences 

to the umpire. A decision agreed to by any two will be binding.

13. To resolve the disagreement on the amount of the loss, Plaintiff 

demanded appraisal under the insurance contract. To date, 

Defendant has failed to identify its appraiser or participate in the 

appraisal process. 

14. Relating to the appraisal, Plaintiff seeks a declaration requiring 

Defendant to name its appraiser and participate in the appraisal 

process. 

15. As Defendant has failed to name its appraiser and participate in 

the appraisal process despite the clear contractual requirement, an 

actual, justiciable and present controversy exists between the parties. 

WHEREAS, Plaintiff respectfully requests entry of a declaratory judgment 

requiring Defendant to enter the appraisal process and appoint an appraiser. 

COUNT 2—CLAIM FOR DECLARATORY JUDGMENT ( DEFENDANT 

HAS WAIVED ITS RIGHT TO AN EXAMINATION UNDER OATH OR, 

ALTERNATIVELY, MUST COMPLETE THE EXAMINATION UNDER 

OATH WITHIN 14 DAYS AFTER ENTRY OF JUDGMENT)

16. Plaintiff reincorporates paragraphs 1-6 as if fully set forth 

herein. 

17. In exchange for premium dollars, Defendant issued Plaintiff a 

policy of insurance for Plaintiff’s property located at 615-637 N HWY 
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231 Panama City, Florida 32405. Policy, Exhibit A. The coverage 

period for the policy commenced on September 19, 2018 and ended 

on September 19, 2019. Plaintiff paid all premiums on the insurance 

policy. 

18. During the policy period, on or about October 10, 2018, 

Hurricane Michael damaged the Plaintiff’s insured property. The loss 

was covered under the policy. Plaintiff timely reported the loss. 

19. Defendant retained an adjusting firm, JS Held, to inspect the 

loss. Based on the JS Held estimates, Defendant issued payments to 

the Plaintiff in the total amount of $1,903,144.07. Accordingly, 

Defendant provided coverage for the loss. 

20. Nonetheless, Defendant requested an examination under oath of 

Plaintiff and certain documents from Plaintiff. 

21. The parties initially coordinated the examination under oath to 

take place on November 21, 2019 in Tallahassee. The examination 

under oath was rescheduled to provide additional time to supply 

Defendant with requested documents. 

22. On or about January 27, 2020, Plaintiff provided additional 

documents in response to Defendant’s request. These included 

invoices and payments for actual work performed at the insured 
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location. Plaintiff, through its counsel’s office, informed Defendant that 

it would wait for potential dates for a rescheduled examination under 

oath. That same day, counsel for Plaintiff again followed up and asked 

Defendant to provide dates for a rescheduled examination under oath. 

23. In response, Defendant on January 27, 2020 acknowledged 

through counsel that it received the additional documentation, would 

download and review the documents and that the carrier would review 

the requested documents. After reviewing the documents and 

determining whether any other information was still needed, Defendant 

indicated that it would reach out regarding the rescheduling of the 

examination under oath. 

24. On February 5, 2020, counsel for Zurich asked whether the 

Plaintiff was gathering additional invoices or documents that Defendant 

did not have. 

25. On or about February 6, 2020, Plaintiff through counsel sent 

correspondence informing Defendant that the requested documents 

were not in the possession of Plaintiff. Plaintiff’s correspondence also 

indicated that if the carrier had questions about these documents, the 

subcontractor and/or the public adjuster would have no problem 
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appearing at the examination under oath to resolve any questions by 

the carrier. 

26. On February 17, 2020, Defendant proposed to hold the 

examination under oath of the Plaintiff on either April 21, 2020; April 

28, 2020; or April 29, 2020. 

27. On February 24, 2020, Plaintiff through counsel again informed 

Defendant that it had produced all responsive documents in the 

Plaintiff’s care, custody and control. 

28. On March 4, 2020, Plaintiff through counsel again informed 

Defendant that it had produced all documents in its possession, and 

informed Defendant that the Defendant’s requested documents were 

not in the possession of the Plaintiff. Plaintiff again offered to have one 

of the subcontractors or the public adjuster to appear at any future 

examination under oath to answer questions from the carrier. 

29. On April 14, 2020, Plaintiff sent correspondence to the carrier. 

The correspondence again reiterated that the requested documents 

were not in the possession or control of the plaintiff, and that all 

documents in the Plaintiffs possession were provided to the carrier. 

The letter indicated that should Defendant not respond to coordinate 

the examination under oath of the client, the subcontractor and/or the 
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public adjuster, Plaintiff would presume Defendant would not longer 

wish to proceed with the examination under oath. 

30. Plaintiff has tried several times to coordinate the examination 

under oath to occur. Plaintiff has additionally offered to provide 

testimony from the public adjuster and a subcontractor, but Defendant 

has failed to coordinate the examination under oath. 

WHEREFORE, Plaintiff asks the Court for declaratory judgment that 

Defendant has waived its right to an examination under oath or, alternatively, 

require Defendant to take the examination under oath of the Plaintiff within 

14 days. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 2nd day of June, 2020, the foregoing

document was served via email on all counsel of record identified on the attached

Service List.

/s/ Kelly L. Kubiak 

KELLY L. KUBIAK, ESQUIRE

Florida Bar No. 108952

MERLIN LAW GROUP

777 S. Harbour Island Boulevard, Suite 950 

Tampa, Florida 33602

TEL: (813) 229-1000

FAX: (813) 229-3692

Attorney for Plaintiff

kubiakpleadings@merlinlawgroup.com

kkubiak@merlinlawgroup.com

SERVICE LIST
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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

Case No.: 5:20-cv-00143-TKW-MJF

Douglas M. McIntosh, Esq. 

Dale S. Dobuler, Esq. 

Segal McCambridge Singer & Mahoney.

1776 East Sunrise Blvd. 

Ft. Lauderdale, FL 33304

ddobuler@mscesq.com

dmcintosh@mscesq.com

Counsel for Defendant