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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EMERALD COAST RESTAURANTS, 

INC. D/B/A Q’QUIGLEY’S1 SEAFOOD

STEAMER & OYSTER SPORTS BAR,

Plaintiff, Case No. _________________

v.

ASPEN SPECIALTY INSURANCE

COMPANY,

Defendant.

____________________________________ /

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that Defendant Aspen Specialty Insurance 

Company (“Aspen”), by and through its undersigned counsel, hereby gives notice 

that it is removing the above-captioned case in the Circuit Court of the 1st Judicial 

Circuit in and for Okaloosa County, Florida, to the United States District Court for 

the Northern District of Florida, Pensacola Division, pursuant to 28 U.S.C. §§ 

1332, 1441, and 1446 (the “Notice of Removal”). In support of this Notice of 

Removal, Aspen states the following:

1

 The case style in Plaintiff’s Complaint filed in Okaloosa County misspelled the 

name of Plaintiff as Q’Quigley’s, instead of O’Quigley’s. 

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I. INTRODUCTION

1. On September 10, 2020, Plaintiff Emerald Coast Restaurants Inc. 

d/b/a O’Quigley’s Seafood Steamer & Oyster Sports Bar (“Plaintiff”) commenced 

an action against Aspen, Emerald Coast Restaurants Inc. d/b/a Q’Quigley’s 

Seafood Steamer & Oyster Sports Bar v. Aspen Specialty Insurance Co., Case No. 

2020 CA 002790 C, in the Circuit Court of the 1st Judicial Circuit in and for 

Okaloosa County, Florida.

2. Plaintiff served the summons and a copy of the Complaint on the 

Chief Financial Officer of Florida (the “CFO”) on September 22, 2020, and on

September 25, 2020, the CFO served Aspen. This Notice of Removal is filed on 

October 22, 2020, which is within 30 days after service on the CFO. Accordingly, 

this Notice of Removal is timely filed within the 30 days allowed for removal by 

28 U.S.C. § 1446(b)(1). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 

526 U.S. 344, 355–56 (1999).

3. In accordance with 28 U.S.C. § 1446(a), “a copy of all process, 

pleadings, and orders served upon” Aspen in the state court action are attached 

hereto as Exhibits 1 through 5. The process served upon Aspen is attached hereto 

as Exhibit 2. The only pleading served upon Aspen (the Complaint) is attached 

hereto as Exhibit 3. The only order served upon Aspen (the Agreed Order on 

Defendant Aspen Specialty Insurance Company’s Unopposed Motion for 

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Enlargement of Time to Respond to Plaintiff’s Complaint) is attached hereto as 

Exhibit 4. The state court docket sheet is attached hereto as Exhibit 5. An Index 

of Exhibits Filed in Support of this Notice of Removal is attached hereto as Exhibit 

1.2

 

II. THIS COURT HAS DIVERSITY JURISDICTION.

4. Under 28 U.S.C. § 1441(a), “any civil action brought in a State court 

of which the district courts of the United State have original jurisdiction, may be 

removed by the defendant . . . , to the district court of the United States for the 

district and division embracing the place where such action is pending.” Under 28 

U.S.C. § 1332, “district courts shall have original jurisdiction of all civil actions 

where the matter in controversy exceeds the sum or value of $75,000, exclusive of 

interest and costs, and is between . . . citizens of different States.”

5. Removal of this action is proper under 28 U.S.C. § 1332 because both

the complete diversity of citizenship requirement and the amount in controversy 

requirement are satisfied.

2

 The Declarations of Anthony Anniello (“Anniello Decl.”), William S. Berk 

(“Berk Decl.”), and Ronald L. Kammer (“Kammer Decl.”), are filed 

contemporaneously herewith and incorporated herein as Exhibits 6, 7, and 8, 

respectively.

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A. The Diversity of Citizenship Requirement Is Satisfied.

6. Section 1332(a) requires diversity of citizenship, which is established 

when a civil suit is between citizens of different states. Id. § 1332(a)(1). Here, 

complete diversity exists between Plaintiff and Aspen because they are citizens of 

different states.

7. As set forth in the Complaint, Aspen is incorporated under the laws of 

the State of North Dakota and has its principal place of business in New York. 

(See Compl. ¶ 3; Anniello Decl. ¶ 4.) Therefore, Aspen is a citizen of North 

Dakota and New York. See id. § 1332(c)(1). 

8. Plaintiff is incorporated under the laws of Florida and, as admitted in 

the Complaint, has its principal place of business in Florida at 34940 Emerald 

Coast Parkway #101, Destin, Florida 32541. (See Compl. ¶ 4; Berk Decl. ¶¶ 4–5.) 

Therefore, Plaintiff is a citizen of Florida. See id. § 1332(c)(1). 

B. The Amount in Controversy Requirement Is Satisfied.

9. As required by 28 U.S.C. § 1332(a), the amount in controversy 

exceeds $75,000 in sum or value, exclusive of interest and costs, based on

Plaintiff’s representations that its losses began on March 20, 2020, and that its 

restaurant’s operation was severely impacted, restricted, or otherwise limited as a

result of the COVID-19 Orders (defined below); Plaintiff’s public adjuster’s 

estimate of its business income losses of $380,590.32; the terms of the Policy 

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(defined below), which provide up to $1,000,000 in business income with extra 

expense and business personal property coverages; and Plaintiff’s demand for 

attorneys’ fees under FLA. STAT. ANN. § 627.428. See 28 U.S.C. § 1446(c)(2). 

10. When a complaint seeks recovery under an insurance policy and 

damages are not specified in the state court complaint, the removing party must 

show “by a preponderance of the evidence that the amount in controversy more 

likely than not exceeds the . . . jurisdictional requirement.” Roe v. Michelin N. Am. 

Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal citations and quotation marks 

omitted). Importantly, “[a] removing defendant is not required to prove the 

amount in controversy beyond all doubt or to banish all uncertainty about it.” Pate 

v. State Farm Mut. Auto. Ins. Co., No. 310CV223, 2010 WL 3372195, at *1 (N.D. 

Fla. Aug. 25, 2010). Instead, courts are permitted to make reasonable deductions 

and inferences, using “their judicial experience and common sense in determining 

whether the case stated in a complaint meets federal jurisdictional requirements.” 

Roe, 613 F.3d at 1062. Likewise, when a complaint seeks declaratory relief, the 

Eleventh Circuit has held that, for purposes of amount in controversy, the value of 

declaratory relief is “the value of the object of the litigation measured from the 

plaintiff’s perspective.” S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 

1315-16 (11th Cir. 2014). In other words, it is “the monetary value of the benefit 

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that would flow to the plaintiff if the [relief it is seeking] were granted.” Id. at 

1316. Again, “absolute certainty is neither attainable nor required.” Id.

11. Here, Plaintiff seeks a declaration and judgment against Aspen under 

a property insurance policy that Aspen issued Plaintiff (the “Policy”), which 

provides “business income and expense, civil authority, business property, and 

additional coverages” (Compl. ¶ 9) to Plaintiff’s restaurant because, starting on 

March 20, 2020, the restaurant’s “operation was severely impacted, restricted, or 

otherwise limited” by COVID-19-related government orders. (Compl. ¶ 13; 

Anniello Decl. ¶ 8.) Plaintiff also demands attorneys’ fees under FLA. STAT. ANN.

§ 627.428. (Compl. ¶¶ 51, 61 (Wherefore Clauses).) Plaintiff admits at least 

$30,000, plus attorneys’ fees and costs (see Compl. ¶ 1), but has not disclosed the 

amount of losses it is seeking to recover. Plaintiff’s allegations, representations, 

and the uncontroverted evidence support that Plaintiff is seeking to recover losses 

exceeding $75,000, exclusive of interest and costs. This is supported by the 

Declarations of Anthony Anniello (see Ex. 6), William S. Berk (see Ex. 7), and 

Ronald L. Kammer (see Ex. 8). 

12. First, Plaintiff’s public adjuster estimated that Plaintiff’s business 

income losses were $380,590.32, which demonstrates that the amount in 

controversy from Plaintiff’s perspective well exceeds $75,000. (Anniello Decl. 

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¶ 9.) Federal district courts in Florida routinely find that estimates prepared by 

public adjusters represent honest assessments of damages by plaintiffs because 

they reflect specific information and arrive at a specific sum. See, e.g., Perez-Malo 

v. First Liberty Ins. Corp., No. 1:17-CV-21180-KMM, 2017 WL 7731958, at *3 

(S.D. Fla. June 8, 2017) (collecting cases and holding that public adjuster estimate 

provided specific information satisfying amount in controversy requirement). 

Accordingly, the public adjuster’s $380,590.32 estimate of business income losses 

establishes that Plaintiff seeks coverage for losses exceeding $75,000, exclusive of 

interest and costs, and the amount in controversy requirement is met.

13. Second, the Policy’s Declarations and monthly limit for indemnity for 

business income with extra expense and business personal property coverages 

provide further support that the amount in controversy exceeds $75,000, exclusive 

of interest and costs. See, e.g., Pate, 2010 WL 3372195, at *1 (considering policy 

limits as informative to amount in controversy in addition to other evidence 

presented). The Policy’s Declarations indicate a monthly limit for indemnity of 

one-twelfth of the $500,000 limit of insurance for business income with extra 

expense coverage and one-twelfth of the $500,000 limit of insurance for business

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personal property coverage, such that Plaintiff may recover up to $83,333.343 per 

month at the insured premises. (See Anniello Decl. ¶ 7.) 

14. Plaintiff does business as O’Quigley’s and represented that its losses 

began on March 20, 2020 (Anniello Decl. ¶¶ 5, 8), because of governmental orders 

issued in response to COVID-19. (See, e.g., Compl. ¶¶ 10–13.) Governor 

DeSantis (the “Governor”) issued several orders specifically focused on 

restaurants, which would include O’Quigley’s.

15. For example, on March 17, 2020, the Governor ordered restaurants to 

immediately limit their occupancy to 50% of their current building occupancy. 

(Berk Decl. ¶ 6.) Then, on March 20, the Governor ordered all restaurants to 

suspend on-premises food consumption, but permitted restaurants to operate their 

kitchens for the sole purpose of providing delivery or take-out-services. (Id. ¶ 7.)

The Governor also ordered businesses to suspend the sale of alcoholic beverages 

for consumption on the premises, but permitted them to sell alcoholic beverages in 

sealed containers for consumption off-premises. (Id.) 

16. Following this order, on March 20, O’Quigley’s posted on its 

Facebook that “the worst possible scenario just occurred” because the Governor 

“officially closed down all restaurants to dine in food and beverage sales in the 

3

 ($500,000 * (1/12) = $41,666.67) + ($500,000 * (1/12) = $41,666.67) = 

$83,333.34.

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state of Florida,” so “O’Quigley’s is now officially closed until further notice.” 

(See Copy of March 20 Facebook Post, attached hereto as Exhibit 9.) Over one 

month later, on April 26, O’Quigley’s posted on its Facebook that it was open for 

pick up. (See Copy of April 26 Facebook Post, attached hereto as Exhibit 10.)

17. On April 29, the Governor issued an order, effective May 4, 2020, 

which permitted restaurants to allow on-premises consumption of food and 

beverage, only if they limited their indoor capacity to no more than 25 percent of 

their building. (Berk Decl. ¶ 8.) The Governor also ordered restaurants to keep 

their bar counts closed to seating. (Id.) Accordingly, from May 1 to May 4,

O’Quigley’s posted on its Facebook indicating that it had been open only for takeout and that it would open on May 4 for customers to dine in. (See Copies of May 

1–4 Facebook Posts, attached hereto as Exhibits 11–14, respectively.) 

18. On May 14, 2020, the Governor permitted restaurants to serve patrons 

indoors, only if they limited their indoor capacity to 50 percent of their seating 

capacity, but still ordered that bar counters were to remain closed to seating. (Berk 

Decl. ¶ 9.) Thus, O’Quigley’s posted on its Facebook page that additional areas 

would be open. (See Copy of May 15 Facebook Post, attached hereto as Exhibit 

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15.) Finally, on June 3, 2020, the Governor permitted bar areas to open with 

seated service. (Berk Decl. ¶ 10.)4

19. Because Plaintiff has represented that its losses began on March 20 as 

a result of the COVID-19-related government orders and that it closed for at least 

one month, Plaintiff’s representations establish that Plaintiff’s claim, at the very 

least, amounts to $83,333.34 for one month, without attorneys’ fees and expenses. 

(See Anniello Decl. ¶ 7.) Indeed, Plaintiff’s allegations and representations 

indicate that Plaintiff is seeking damages greater than $83,333.34, due to the 

limited number of patrons permitted in O’Quigley’s, but one month’s losses is 

sufficient to satisfy the amount in controversy requirement.

20. Moreover, statutory attorneys’ fees should be included in determining

the amount in controversy. See, e.g., Stephens v. Geovera Specialty Ins. Co., No. 

1:19-CV-327-AW-GRJ, 2020 WL 5845738, at *2 (N.D. Fla. Feb. 10, 2020)

(including statutory attorneys’ fees in determination of amount in controversy 

when plaintiff requested fees under Florida statute). Here, Plaintiff seeks an award 

of attorneys’ fees from Aspen under FLA. STAT. ANN. § 627.428. (See Compl. ¶¶

51, 61 (Wherefore Clauses).) A usual and customary rate for an attorney with the 

4

 The various orders included in paragraphs 15, 17, and 18 are referred to 

collectively in this Notice of Removal as the “COVID-19 Orders.”

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experience of Plaintiff’s attorney is between $250 and $275 per hour. (See 

Kammer Decl. ¶ 10.) 

21. At the time of removal, a reasonable amount of time incurred by 

Plaintiff’s attorney on this matter was between seven and eight hours, resulting in 

attorneys’ fees between $1,875 and $2,350. (See id. ¶¶ 11–12.) Moreover, one or 

more attorneys representing Plaintiff will likely spend an additional 25 to 30 hours 

of work preparing for and defending a motion to dismiss—a likely outcome in this 

case given the recent outcomes in related COVID-19 business interruption cases—

resulting in a total of between $9,375 and $11,350 of reasonable attorneys’ fees. 

(See id. ¶ 13.) If the case were to survive a motion to dismiss and there is 

substantial discovery, the reasonable amount of attorneys’ fees will be much 

greater. (See id.) Thus, the attorneys’ fees Plaintiff seeks further establish that the 

value of the amount in controversy exceeds $75,000, exclusive of interest and 

costs. 

III. ALL OTHER REQUIREMENTS FOR REMOVAL ARE SATISFIED.

22. In addition to demonstrating that this removal is timely and that 

diversity jurisdiction exists, Aspen has satisfied all other requirements for removal.

23. Removal to Proper Court. As required by 28 U.S.C. § 1441(a), 

removal to the United States District Court for the Northern District of Florida, 

Pensacola Division, is proper because this Court is part of the “district and division 

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embracing the place where” this action was filed. See 28 U.S.C. § 89(a) (“The 

Northern District comprises the counties of Alachua, Bay, Calhoun, Dixie, 

Escambia, Franklin, Gadsden, Gilchrist, Gulf, Holmes, Jackson, Jefferson, 

Lafayette, Leon, Levy, Liberty, Madison, Okaloosa, Santa Rosa, Taylor, Wakulla, 

Walton, and Washington.”); N.D. Fla. L.R. 3.1(A)(1) (“[T] the Pensacola Division 

includes Escambia, Santa Rosa, Okaloosa, and Walton Counties.”).

24. Notice to Parties and State Court. Pursuant to 28 U.S.C. § 1446(d), in 

addition to sending a copy of this Notice of Removal to Plaintiff, Aspen is filing 

notice in the Circuit Court of the 1st Judicial Circuit in and for Okaloosa County

and serving upon Plaintiff a separate document titled, “Notice of Filing Notice of 

Removal to Federal Court.”

IV. RELIEF REQUESTED

25. WHEREFORE, Aspen respectfully requests that this action pending 

in the Circuit Court of the 1st Judicial Circuit in and for Okaloosa County, Florida, 

be removed to the United States District Court for the Northern District of Florida, 

Pensacola Division, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.

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Dated: October 22, 2020 Respectfully Submitted,

/s/ William S. Berk

William S. Berk / FBN: 349828

Alan H. Swindoll / FBN: 119409

BERK, MERCHANT & SIMS, PLC

2 Alhambra Plaza, Suite 700

Coral Gables, Florida 33134

Telephone: (786) 338-2900

Facsimile: (786) 338-2888

wberk@berklawfirm.com

mjoseph@berklawfirm.com

aswindoll@berklawfirm.com 

nrodriguez@berklawfirm.com 

Local Counsel for Aspen Specialty

Insurance Company

Yvette Ostolaza

Yolanda Garcia

SIDLEY AUSTIN LLP

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

yvette.ostolaza@sidley.com

ygarcia@sidley.com 

Counsel for Aspen Specialty Insurance 

Company

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CERTIFICATE OF SERVICE

I hereby certify that a copy of this Notice of Removal was served on the 

following counsel of record via e-mail, on October 22, 2020.

Nicholas A. Chiappetta 

Florida Bar No: 1006407 

MARTEN | CHIAPPETTA 

8401 Lake Worth Rd., Suite 130 

Lake Worth, FL 33467

Telephone (561) 424-7300 

Facsimile (561) 424-7400 

service@beheardmc.com 

nchiappetta@beheardmc.com 

/s/ William S. Berk

William S. Berk

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