UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

GREAT LAKES INSURANCE, S.E., § 

§ 

 Plaintiff § 

§ 

vs. § Civil Action No. 3:20-05954-RV-HTC 

§ 

PRESTIGE WORLDWIDE § 

PENSACOLA CHARTERS LLC § 

d/b/a LEGAL LIMTS OUTDOORS, § 

§ 

 Defendant § 

GREAT LAKES INSURANCE, S.E.’S RESPONSE AND MEMORANDUM 

OF AUTHORITIES TO MOTION FOR SUMMARY JUDGMENT OF 

PRESTIGE WORLDWIDE PENSACOLA CHARTERS, LLC D/B/A 

LEGAL LIMITS OUTDOORS 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 1 of 24
TABLE OF CONTENTS 

 TABLE OF AUTHORITIES .............................................................................. 1 

 RESPONSE AND MEMORANDUM OF AUTHORITIES ............................ 2 

BACKGROUND AND SUMMARY OF ARGUMENTS ........................... 3 

OBJECTIONS & REBUTTAL TO STATEMENT OF FACTS .................. 8 

APPLICABLE LAW ..................................................................................... 11 

 A. New York Law Applies ................................................................... 11 

 B. This Hurricane Questionnaire Plan Is Not Ambiguous ................... 15 

 C. Even Under Florida Law Breach Vitiates Coverage ........................ 16 

 D. The Hurricane Questionnaire Plan Was Breached .......................... 19 

CONCLUSION .............................................................................................. 21 

 CERTIFICATE OF COMPLIANCE ................................................................ 22 

 CERTIFICATE OF SERVICE .......................................................................... 22 

 EXHIBIT A 

 Expert Report of Revel Boulon 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 2 of 24
TABLE OF AUTHORITIES 

Cases

Adrani Enterprises, Inc. v. Underwriters at Lloyds, 962 F.Supp. 415, 419-20 (S.D.N.Y. 1997) 14 

Aetna Ins. Co. v. Dudney, 595 So. 2d 238, 239 (Fla. App. 4 Dist. 1992) ............................... 13, 18 

AIG Centennial Ins. Co. v. O’Neill, 782 F. 3d 1296, 1304 (11th Cir. 2015) ................................. 18 

Albany Ins. Co. v. Kieu, 927 F.2d 882, 890 (5th Cir. 1991) .......................................................... 13 

Arguelles v. Citizens Prop. Ins. Corp., 278 So. 3d 108, 111 (Fla. Dist. Ct. App. 2019) .............. 15 

AXA Global Risks (UK), Ltd. v. Webb, 2000 WL 33179617 (M.D. Fla., July 28, 2000) ....... 16, 20 

Commercial Union Ins. v. Flagship Marine Services, 190 F.3d 26 31-32 (2d Cir. 1999) ..... 13, 17 

Fireman’s Fund Ins. Co. v. Tropical Shipping & Construction Co., 254 F.3d 987, 1003 (11th Cir. 

2001).................................................................................................................................... 15, 20 

Firemans’s Fund Ins. Co. v. Cox, 742 F. Supp. 609 (M.D. Fla. 1989) ........................................ 17 

Geico Marine Ins. Co. v. Shackleford, 945 F.3d 1135, 1140 (11th Cir. 2019) ........................ 15, 18 

Great Lakes Reinsurance (UK) PLC v. Dion, 2009 WL 5174372, *2 (S.D. Cal. 2009) .............. 13 

Great Lakes Reinsurance (UK) PLC v. Durham Auctions, Inc., 585 F.3d 236, 242 (5th Cir. 2009)

 ............................................................................................................................................. 12, 13 

Great Lakes Reinsurance (UK) PLC v. Rosin, 757 F. Supp. 2d 1244, 1250-51 (S.D. Fla. 2010) 11 

Great Lakes Reinsurance (UK) PLC v. Rosin, 757 F. Supp. 2d 1244, 1251 (S.D. Fla. 2010) .... 11, 

12, 17 

Great Lakes Reinsurance (UK) PLC v. S. Marine Concepts, Inc., 2008 WL 6523861, at *2 (S.D. 

Tex. 2008) ................................................................................................................................. 13 

Great Lakes Reinsurance (UK) PLC v. Sea Cat I, LLC, 653 F. Supp. 2d 1193, 1199 (W.D. Okl. 

2009).......................................................................................................................................... 12 

HIH Marine Services, Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000) ............................... 18 

Kephart v. Certain Underwriters at Lloyds of London, 427 F.Supp.3d 508 (S.D.N.Y. 2019), .... 14 

Levine v. Aetna Ins. Co., 139 F.2d 217, 218 (2d Cir. 1943) ......................................................... 14 

Lexington v. Cooke’s Seafood, 835 F.2d 1364 (11th Cir. 1988) .................................................... 17 

N.Y. Ins. L.S 3106 ........................................................................................................................ 14 

Oretsky v. Infinity Ins. Co., 524 Fed. App’x 517, 523 (11th Cir. 2013) ........................................ 15 

SteelMet, Inc. v. Caribe Towing Corp., 747 F.2d 689, 695 (11th Cir. 1984) ................................ 18 

Swire Pac. Holdings, Inc. v. Zurich Ins. Co. 45 So.2d 161, 165-66 (Fla. 2003) .......................... 15 

Taurus Holdings, Inc. v. U.S. Fid. v. Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) ...................... 18 

Statutes

Fla. Stat. § 627.409(2)....................................................................................................... 16, 18, 20 

Treatises

Restatement (Second) of Conflict of Laws § 187-188.................................................................. 13 

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RESPONSE AND MEMORANDUM OF AUTHORITIES 

Plaintiff, GREAT LAKES INSURANCE, S.E. (“Great Lakes”), files this 

Response and Memorandum of Authorities in opposition to the Motion for Summary 

Judgment of Defendant, Prestige Worldwide Pensacola Charters LLC d/b/a Legal 

Limits Outdoors (“Prestige”). This Court should deny Prestige’s Motion for 

Summary Judgment and grant Great Lakes’ motion because Prestige’s own 

Memorandum of Authorities acknowledges a tropical storm warning was issued for 

Pensacola and surrounding areas by 8:00 a.m. on Sunday, September 13th;

1

 Captain 

Powers testified he saw a forecast for tropical storm force winds in the Pensacola 

area as early as Saturday, September 12th;

2

 and yet, he did not act upon the Hurricane 

Questionnaire Plan before September 14th. His stated reason for not moving the 

vessel on September 14th was safety, but he admitted it could have been moved safely 

on September 13th.

3

 Since Pensacola was clearly under a tropical storm warning no 

later than September 13th, there is no disputed issue of material fact concerning 

Prestige’s failure to comply with the Hurricane Questionnaire Plan. 

The Hurricane Questionnaire Plan requires action whenever there is a tropical 

storm or a hurricane. Prestige acknowledges Pensacola was under a tropical storm 

 

1

 R. Doc. 33-1, p. 6, notes 10-11. 

2

 R. Doc. 32-2, p. 7 of the exhibit, pp. 18-19 of the deposition. 

3

 R. Doc. 32-2, p. 8 of the exhibit, p. 25 of the deposition. 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 4 of 24
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warning as early as 8:00 a.m., on Sunday, September 13th. It further acknowledges 

the vessel could have been moved safely on Sunday, September 13th. One option 

for complying under the Hurricane Questionnaire Plan was to navigate the vessel 

approximately five miles to Pensacola Shipyard or Bahia Mar Marina, have it hauled 

out and stored ashore. The second option was to drive the vessel a safe distance 

away and store it at a marina and/or to take it to Bon Secour and anchor it in a safe 

location with multiple anchors and tied to pilings. Clearly, this second option was 

safely available to Prestige on September 13th, but it decided not to comply with its 

own Hurricane Questionnaire Plan. 

The balance of Prestige’s Motion cites to irrelevant and immaterial facts. The 

“cone of uncertainty” in various weather charts is immaterial because the same 

charts plainly demonstrate Pensacola was under a tropical storm warning as early as 

8:00 a.m. on Sunday, September 13th. The tropical storm warning is sufficient to 

trigger action under the Hurricane Questionnaire Plan. Prestige breached the 

Hurricane Questionnaire Plan, which voids coverage under the Policy, all as outlined 

in detail below. 

I. 

BACKGROUND AND SUMMARY OF ARGUMENT 

Great Lakes issued a Premier and Pleasure Yacht Insuring Agreement 

covering the M/V LEGAL LIMITS between August 7, 2020, and August 7, 2021, 

which included Hull coverage (the “Policy”). The Policy was a renewal of the 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 5 of 24
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previous policy year from August 6, 2019, to August 6, 2020. The Hull limits were 

$325,000 with a Named Windstorm deductible of $16,250. The Policy incorporated 

the Application as part of the Insuring Agreement. Part of the Application included 

the Hurricane Questionnaire Plan prepared by Prestige. The Policy further provided 

that any breach of a warranty would void the Policy from inception. Since Prestige 

clearly failed to comply with the Hurricane Questionnaire Plan, it breached a 

warranty in the Policy, which voids coverage.4 

Great Lakes made the decision to bind and accept coverage based upon 

Prestige’s representations that it would comply with the Hurricane Questionnaire 

Plan. The Hurricane Questionnaire provides that “in the event of a storm warning,” 

the vessel will be “ashore.” Prestige prepared a written Plan attached to the 

questionnaire, which provided that “in the event of a tropical storm or hurricane,” 

Prestige would arrange for a “haul-out” of the M/V LEGAL LIMITS by Pensacola 

Shipyard or Bahia Mar Marina so the vessel could be stored ashore. Alternatively, 

if the vessel was unable to be stored ashore, it would be driven a safe distance away 

and stored at a marina or taken to Bon Secour and anchored in a safe location. The 

Hurricane Questionnaire Plan was a warranty contained in the Policy, as well as an 

integral part of Great Lakes’ decision to underwrite the risk. Prestige’s failure to 

 

4

 R. Doc. 31-1, Great Lakes’ Memorandum of Authorities in Support of its Motion for Summary 

Judgment, pp. 2–4. 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 6 of 24
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comply with its own Hurricane Questionnaire Plan constitutes a breach of warranty 

that voids coverage under the Policy. 

As Prestige acknowledges, Pensacola, Florida is no stranger to tropical storms 

and hurricanes. Boat owners in the Pensacola area certainly know they need to make 

efforts to protect their vessels when storms approach. Boats are not like houses; they 

can be moved, and Prestige specifically chose to adopt a Hurricane Questionnaire 

Plan requiring the vessel would be “ashore” in the event of a “storm warning.” 

Specifically, the LEGAL LIMITS would be taken to Pensacola Shipyard or Bahia 

Mar Marina, hauled out and stored ashore, or taken to Bon Secour or some other safe 

location and properly anchored, or trailered and driven a safe distance away. 

Prestige acknowledges it did nothing to comply with the Hurricane Questionnaire 

Plan, ostensibly because of safety reasons. 

Hurricane Sally struck the Pensacola, Florida area at approximately 4:45 a.m. 

on Wednesday, September 16, 2020. This was approximately seven (7) weeks after 

the subject Insurance Policy had incepted and provided coverages for the M/V 

LEGAL LIMITS pursuant to the aforementioned insuring terms, conditions, 

provisions, warranties, endorsements, and exclusions. 

Prestige received notice of the subject storm on Saturday September 12, 2020, 

some ninety-six (96) hours before Sally struck the Pensacola area. A tropical storm 

warning was issued at 8:00 a.m. on Sunday, September 13, 2020. That warning 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 7 of 24
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clearly triggered the Hurricane Questionnaire Plan, and Captain Powers admitted 

that safety would not have prevented moving the vessel on the 13th. Prestige admits 

it took no action to comply with Plan A or Plan B of the Hurricane Questionnaire 

Plan on September 13th. Prestige essentially took no action to protect the M/V 

LEGAL LIMITS until it made feeble attempts on Monday afternoon, September 14, 

2020. (Adding extra lines, but leaving the vessel in its permanent moorage at 

Palafox Marina.)5 Prestige did not comply with either Plan A or Plan B of the 

Hurricane Questionnaire Plan. 

 

5

 R. Doc. 31-2, Deposition Testimony of Captain Joseph Lance Powers, operator for the M/V 

LEGAL LIMITS, taken on May 24, 2021, pg. 48, lns. 18-24; pg. 49, lns. 8-22; pg. 97, lns. 10-14. 

Q: And, in fact, on September 12th, this is like at 3:27 p.m., Marina 

Management sent an email, correct? 

A: Yes, sir. 

Q: And the subject of it is Tropical Storm Sally? 

A: Yes, sir. 

* * * 

Q: It says, “We should be prepared for at least tropical storm conditions and 

possibly hurricane-force winds.” 

A: Yes, sir. 

Q: And you received this email on September 12th? 

A: Yes, sir. 

Q: And you did not take any actions to prepare for at least tropical storm 

conditions at the time? 

A: No, sir. 

Q: You agree with me? 

A: Yes, sir. 

* * * 

Q: Okay. Is there anything in the Hurricane Questionnaire Plan that says that 

the vessel will be left at the marina and you’ll just add some more lines that 

you think are sufficient? 

A: No, sir. 

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The Policy itself provides that well-established, entrenched principles and 

precedents of substantive United States Federal Admiralty law and practice should 

apply, but where no such well-established, entrenched precedent exists, the 

substantive laws of the State of New York apply.6 

While Prestige contends that Florida law should apply, Prestige is mistaken. 

Admiralty principles dictate that choice of law provisions in a maritime contract 

should be upheld unless the application of the clause is “unjust and unreasonable.” 

Here, Great Lakes demonstrated in its own Memorandum of Authorities in support 

of its Motion for Summary Judgment that Great Lakes maintains sufficient contacts 

with the State of New York. In particular, Great Lakes maintains an agent for service 

of process in New York; it maintains its trust accounts in New York; and it was first 

approved as a surplus line insurer in the State of New York. Per the Declaration of 

Anthony Usher, representative of Great Lakes, attached as Exhibit “D” to Great 

Lakes’ Memorandum of Authorities in support of its Motion for Summary 

Judgment,7 it is clear that New York is not an unjust or unreasonable choice of law 

for interpretations concerning this maritime contract. Under New York law, 

warranties are strictly construed and must be strictly complied with, or coverage is 

 

6

 R. Doc. 31-1, pg. 10. 

7

 R. Doc. 31-5. 

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voided. Since Prestige acknowledges that it did not comply with the Hurricane 

Questionnaire Plan, there is no coverage. 

In sum, Prestige wrote the Hurricane Questionnaire Plan and submitted it to 

Great Lakes so that Great Lakes would rely upon same and agree to bind and issue 

coverages for the M/V LEGAL LIMITS. Sally was a named storm with watches 

and warnings that had the possibility of impacting Pensacola as early as September 

12th and 13th, but Prestige failed to comply with its own Hurricane Questionnaire 

Plan. That Hurricane Questionnaire Plan was a warranty that is to be strictly 

construed and must be strictly complied with. Prestige had a ninety-six (96) hour 

notice of Sally but did nothing for almost sixty (60) hours. Under New York law, 

there is no coverage under this Policy for the constructive loss of the M/V LEGAL 

LIMITS, and Prestige’s Motion for Summary Judgment must be denied, with Great 

Lakes’ Motion for Summary Judgment being granted. This Policy is void ab initio.

II. 

OBJECTIONS AND REBUTTAL TO 

PRESTIGE’S STATEMENT OF FACTS 

Prestige argues that the Hurricane Questionnaire Plan could not be safely 

implemented. But that is not true. Applying the plain, unambiguous wording of the 

Hurricane Questionnaire Plan, Prestige was required to take action to comply by 

Sunday, September 13, 2020, when the tropical storm warning was issued for an 

area that included Pensacola. This was almost seventy-two (72) hours before Sally 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 10 of 24
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struck the Pensacola area. Prestige admits it did nothing at that time.8 There was 

plenty of time for Prestige to begin making arrangements to comply with either Plan 

A or Plan B of the Hurricane Questionnaire Plan; however, Prestige did neither.9 

Captain Powers admits that he was aware of the storm that weekend and 

acknowledged that he received the Marina Management email about getting 

reservations for haul outs (which would be Pensacola Shipyard or Bahia Mar Marina 

under Plan A of the Hurricane Questionnaire Plan). However, Captain Powers made 

no attempts or efforts that weekend to put either Hurricane Questionnaire Plan A or 

B into action to effectuate a haul out.10 If Captain Powers had complied with Plan 

A or Plan B, the vessel would have been saved.11 Simply tying up the vessel at its 

 

8

 R. Doc. 31-2, Exhibit A, Deposition Testimony of Captain Joseph Lance Powers, previously 

mentioned in footnote 5. 

9 See, Exhibit A, Expert Report of Revel Boulon, pg. 4, 

On September 13, 2020, approximately 72 hours prior to landfall, the vessel 

location was upgraded to a tropical storm warning, and the Al Fl border was 

upgraded to a hurricane warning, with no apparent action taken by the assured to 

schedule the vessel to be hauled out or to relocate it to sheltered waters as per the 

backup plan. 

While Mr. Boulon was mistaken about whether Prestige took any action on Monday, September 

14, 2020, (because of incorrect information produced by Prestige), the fact remains that Prestige 

did nothing on Sunday, September 13, 2020, or in the early morning hours of Monday, September 

14, 2020, to protect the vessel.

10 See footnote 5. 

11 R. Doc. 31-3, Deposition Testimony of Tammy Blackwell of Pensacola Shipyard, May 25, 

2021, pg. 27, lns. 20-22; and pg. 28, lns. 1-7: 

Q: I’m trying to get an idea if any damage actually happened to one of the 

vessels that was—while it was ashore. 

A: Are you asking for vessels we hauled out for Hurricane Sally or vessels that 

were on the yard already? 

Q: Well, let’s start with those you hauled out specifically for Hurricane Sally. 

A: So if memory serves me correctly, the answer is no. 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 11 of 24
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home port of Palafax Marina, when there is clear awareness of a tropical storm 

warning that included Pensacola, does not comply with Prestige’s Hurricane 

Questionnaire Plan.12 

In sum, Captain Powers had sufficient time before the afternoon of Monday, 

September 14, 2020, to make arrangements for a haul out and /or to safely navigate 

the approximate five miles to Pensacola Shipyard or Bahia Mar Marina for the haul 

out. He chose to do nothing. Making phone calls on the afternoon of Monday, 

September 14, 2020, was insufficient to comply with Plan A or Plan B of the 

Hurricane Questionnaire Plan. 

This insurance Policy was in effect less than two months before Hurricane 

Sally struck the Pensacola area and allegedly caused a constructive loss to the M/V 

LEGAL LIMTS. Given the propensity of storms in the Pensacola area, no insurer 

would ever issue a policy providing Hull coverage to a yacht in the Pensacola area 

without the insured agreeing to comply with its own Hurricane Questionnaire Plan. 

That is what Prestige said it would do. However, that is not what Prestige actually 

did when faced with Sally. Instead, it added a few lines, hoped for the best, and 

when the vessel suffered a constructive loss, told Great Lakes to “pay up” even 

though Prestige knew it failed to comply with its own Hurricane Questionnaire Plan. 

 

12 Captain Powers admitted in his deposition that leaving the vessel at Palafox Marina and adding 

lines was not part of the Hurricane Questionnaire Plan. See footnote 5. 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 12 of 24
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Prestige’s failure to comply with the Hurricane Questionnaire Plan voids the 

insurance coverage under New York law, and this Court should declare the Policy 

to be void ab initio. 

III. 

APPLICABLE LAW 

A. New York Law Applies – The Hurricane Questionnaire Plan Was A 

Warranty, And Prestige’s Breach Voids Coverage 

Prestige argues that New York law does not apply. But Prestige is wrong. 

Great Lakes cited the Court to the applicable law in its own Memorandum of 

Authorities in support of its Motion for Summary Judgment.13 While Great Lakes 

will not repeat that detailed discussion, it will mention some of the well-founded 

principles as found in those cases and reference some additional cases in rebuttal to 

Prestige’s arguments. 

Great Lakes Reinsurance (UK) PLC v. Rosin, 757 F. Supp. 2d 1244, 1251 

(S.D. Fla. 2010) is a seminal case in this area. It involved a breach of a named 

operator warranty. The policy in that case also stated 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 

 

13 R. Doc. 31-1. 

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where no such well-established, entrenched precedent exists, this insuring agreement 

is subject to the substantive laws of the State of New York.” Id, at 1247.14

Rosin found that New York had a sufficient substantial relationship with Great 

Lakes to allow the application of New York law and enforce the parties’ choice of 

law clause. The court there essentially emphasized the same factors as in the Usher 

Declaration here, namely, that Great Lakes first applied to be a surplus lines carrier 

in New York; Great Lakes maintains bank accounts in New York; Great Lakes 

accepts service of process through attorneys in New York; and the choice of law 

provision in the insurance policy specifies the applicability of New York law. Id, at 

1251. Rosin also emphasized the principles as stated in Great Lakes Reinsurance 

(UK) PLC v. Durham Auctions, Inc., 585 F.3d 236, 242 (5th Cir. 2009). Durham 

likewise enforced a choice of law clause adopting New York law in a marine 

insurance policy, because Great Lakes had a substantial relationship with New York, 

maintained an agent in New York for service of process, and kept its bank accounts 

in New York. 

“Durham has not carried its burden of showing that the application of 

New York, as provided in the Policy, would be unreasonable or 

unjust.”; Id, at 244; see also, Great Lakes Reinsurance (UK) PLC v. 

Sea Cat I, LLC, 653 F. Supp. 2d 1193, 1199 (W.D. Okl. 2009) (applying 

choice of law clause in the marine insurance policy issued by Great 

Lakes specifying admiralty law or New York law); Great Lakes 

Reinsurance (UK) PLC v. Dion, 2009 WL 5174372, *2 (S.D. Cal. 

 

14 This is the same choice of law provision as in the Policy here. 

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2009); and Great Lakes Reinsurance (UK) PLC v. S. Marine Concepts, 

Inc., 2008 WL 6523861, at *2 (S.D. Tex. 2008). 

All of these cases held that the choice of law provision in the marine insurance 

contract providing that New York law would apply was entirely reasonable under 

the circumstances. Great Lakes had sufficient contacts with the State of New York 

for the application of New York law to be both reasonable and just, and most 

importantly, had “substantial assets and connections in New York....” Id. 

Similarly, New York law should apply here. The principles of admiralty 

dictate that a party’s choice of law provision should be upheld.15 This is the same 

choice of law provision upheld by federal courts in Florida, the Fifth Circuit, and 

even state courts. The application of New York law is not unreasonable nor unjust. 

This Court should also find that New York law applies to the interpretation of this 

marine insurance contract. 

Under New York law, warranties in marine insurance policies are strictly 

construed and must be strictly complied with, or there is no coverage for a loss to a 

vessel. See Commercial Union Ins. v. Flagship Marine Services, 190 F.3d 26 31-32 

(2d Cir. 1999), stating, 

“Under the federal rule and the law of most states, warranties in 

maritime insurance contracts must be strictly complied with, even if 

they are collateral to the primary risk that is the subject of the contract, 

if the insured is to recover.” Id, at 31. See also, Levine v. Aetna Ins. 

 

15 Albany Ins. Co. v. Kieu, 927 F.2d 882, 890 (5th Cir. 1991); Great Lakes v. Durham, at 241-42. 

See also, Restatement (Second) of Conflict of Laws § 187-188. 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 15 of 24
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Co., 139 F.2d 217, 218 (2d Cir. 1943) (per curiam) (interpreting 

predecessor statute to N.Y. Ins. L.S 3106(c) and holding that, 

“compliance with the warranty was a condition precedent to liability 

[under the contract of marine insurance] and afforded a complete 

defense irrespective of any question of causation”); Adrani Enterprises, 

Inc. v. Underwriters at Lloyds, 962 F.Supp. 415, 419-20 (S.D.N.Y. 

1997), vacated on other grounds, 140 F.3d 157 (2d Cir. 19998) (New 

York Ins. L. S. 3106, like the federal rule, requires strict compliance 

with warranties in marine insurance contract). 

Prestige has admitted that it failed to comply with the Hurricane Questionnaire 

Plan, which is a warranty under the Policy. Kephart v. Certain Underwriters at 

Lloyds of London, 427 F.Supp.3d 508 (S.D.N.Y. 2019) is the leading case on the 

necessity to comply with the Hurricane Questionnaire Plan. The insured there argued 

that since the vessel was hauled out of the water before the storm, it had complied 

with the Hurricane Questionnaire Plan. But the court found there were other 

elements of the Hurricane Questionnaire Plan the insured failed to satisfy. 

Specifically, the insured not only had to haul the vessel out of the water, it also had 

to tie it down. While the insured argued ambiguity in the Hurricane Questionnaire 

Plan, the Court soundly rejected such. 

Kephart’s argument that the haul out provision in Section 7 governs this 

dispute and creates ambiguity is rejected . . . Because Kephart breached 

the unambiguous terms of the HPP [Hurricane Questionnaire Plan], a 

warranty that must be strictly complied with under maritime insurance 

law, he is not entitled to coverage under the policy for damage incurred 

on or around September 10, 2017. 

Kephart v. Certain Underwriters, at 517. 

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B. This Hurricane Questionnaire Plan Is Not Ambiguous 

Prestige argues that the Hurricane Questionnaire Plan is ambiguous. It is not. 

Words of a policy are not ambiguous when they are given their plain, ordinary and 

generally accepted meaning: “that a provision is complex and requires analysis for 

application does not automatically mean it is ambiguous.” Geico Marine Ins. Co. v. 

Shackleford, 945 F.3d 1135, 1140 (11th Cir. 2019) (quoting from Swire Pac. 

Holdings, Inc. v. Zurich Ins. Co. 45 So.2d 161, 165-66 (Fla. 2003)). Even when a 

provision is not a defined term in the policy, it simply carries its ordinary meaning. 

Id, at 1141. See also, Arguelles v. Citizens Prop. Ins. Corp., 278 So. 3d 108, 111 

(Fla. Dist. Ct. App. 2019). “In the absence of ambiguous language, a court may not 

look to parol evidence in ascertaining the intent of parties to an insurance contract.” 

Oretsky v. Infinity Ins. Co., 524 Fed. App’x 517, 523 (11th Cir. 2013) (quoting from 

Fireman’s Fund Ins. Co. v. Tropical Shipping & Construction Co., 254 F.3d 987, 

1003 (11th Cir. 2001)). 

The words in the Policy are to be given their plain meaning; nothing more and 

nothing less. Further, considering that Prestige wrote the Hurricane Questionnaire 

Plan, it should arguably be construed against them. The tropical storm warning for 

Pensacola on Sunday, September 13, 2020, at 8:00 a.m., triggered the Hurricane 

Questionnaire Plan under its plain meaning. 

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The Hurricane Questionnaire Plan here is straightforward, not complex, and 

easy to understand and interpret. When storm watches and warnings potentially 

threatened the general Pensacola area, the Hurricane Questionnaire Plan was clearly 

triggered. The precise triggering language is straightforward: “in the event of a storm 

warning” and “in the event of a tropical storm or hurricane.” But Prestige failed to 

act. It did not implement Plan A or Plan B. This failure was a breach of warranty 

that abrogates coverage. The Policy must be declared void ab initio. 

C. Even Under Florida Law, Prestige’s Breach Of The Hurricane 

Questionnaire Plan Warranty Increased The Hazard/Risk And Vitiates 

Coverage 

While Great Lakes contends that Florida law does not apply, even under 

Florida law, Prestige’s lack of required action increased the hazard and the risk, such 

that coverage is still vitiated. Fla. Stat. § 627.409(2) provides: 

A breach or violation by the insured of any warranty, condition or 

provision of any wet marine or transportation insurance policy, contract 

of insurance, endorsement or application therefore does not void the 

policy or contract, or constitute a defense to a loss thereon, unless such 

breach or violation increased the hazard by any means within the 

control of the insured. 

Id; See also, AXA Global Risks (UK), Ltd. v. Webb, 2000 WL 33179617 (M.D. Fla., 

July 28, 2000). 

In AXA Global Risks, the insured had his vessel docked in the water at his 

residence as opposed to being laid-up during the winter as required by the policy. 

The court found the breach of the lay-up clause to have increased the hazard. If the 

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 18 of 24
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vessel had been laid-up as required, it would not have sunk. The court invalidated 

the policy based upon the breach of warranty. 

Likewise, Firemans’s Fund Ins. Co. v. Cox, 742 F. Supp. 609 (M.D. Fla. 

1989), found that the presence of extra crew members on board also increased the 

hazard, and that policy was declared void. Great Lakes Reinsurance (UK) PLC v. 

Rosin, 757 F. Supp. 2d 1244 (S.D. Fla. 2010), involved the breach of the named 

operator warranty. Although the court ultimately concluded that New York applied, 

it also found that even under Florida law, the breach of warranty caused by the 

operator’s negligence increased the hazard and was the cause of the loss. Coverage 

was voided. 

Finally, Commercial Union Ins. Co. v. Flagship Marine Services, 190 F. 3d 

26, 32-33 (2d Cir. 1999), found that while New York law should apply, even under 

Florida law, the violation of the Tow Warranty was a material breach that obviated 

coverage. 

Travelers Property Casualty Co. of N. America v. Ocean Reef Charters, LLC, 

996 F. 3d 1161, 1170 (11th Cir. 2021), acknowledged that some warranties are not 

subject to Fla. Stat. § 627.409(2) under Florida law. (Navigational warranties). In 

fact, some warranties are subject to federal maritime law interpretation, which, like 

New York law, requires strict conformity and compliance, or coverage is voided. 

Travelers, at 1168; Lexington v. Cooke’s Seafood, 835 F.2d 1364 (11th Cir. 1988); 

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and Aetna Ins. Co. v. Dudney, 595 So. 2d 238, 239 (Fla. App. 4 Dist. 1992). Of 

interest is AIG Centennial Ins. Co. v. O’Neill, 782 F. 3d 1296, 1304 (11th Cir. 2015), 

which held that federal maritime doctrines could apply as to determinations on 

ambiguity, finding that the maritime doctrine of uberrimae fidei — not state contract 

law -- would govern the maritime insurance dispute. See also, HIH Marine Services, 

Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000) and SteelMet, Inc. v. Caribe 

Towing Corp., 747 F.2d 689, 695 (11th Cir. 1984), finding that the “well settled 

principle of uberrimae fidei is the controlling law of [11th] this Circuit.” 

“By default, federal maritime law displaces contrary state law when 

construing a marine insurance contract.” Geico Marine Ins. Co. v. 

Shackleford, 945 F. 3d 1135, 1143 (11th Cir. 2019). “The parties could 

have included a choice-of-law provision selecting state law over federal 

law, but they did not. And “we may not rewrite [the parties’] contract, 

add meaning that is not present, or otherwise reach results contrary to 

the intentions of the parties.” Id. (quoting from Taurus Holdings, Inc. 

v. U.S. Fid. v. Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). 

So no matter what law actually applies, Prestige failed to comply with its own 

Hurricane Questionnaire Plan, refused to take the necessary action under Plan A or 

Plan B until it was too late, and now wants its lack of action excused. But the law 

clearly does not allow for such abject failures to be excused. Prestige was required 

to take certain actions that weekend. Prestige’s failure to do so increased the hazard 

and risk to the M/V LEGAL LIMITS such that here is no coverage under the Policy. 

 While Prestige now tries to claim that this was a “technical omission” and 

that Fla. Stat. § 627.409(2) justifies such “technical omission”, Prestige’s admitted 

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failure to comply with the warranty voids coverage. Furthermore, Prestige’s breach 

increased the hazard the vessel faced. If Prestige had complied with either Plan A or 

Plan B, either by navigating the vessel to Pensacola Shipyard or Bahia Mar Marina 

for “haul out” or driven the vessel a safe distance away from the storm, the M/V 

LEGAL LIMITS would not have suffered damage.16 Because Prestige did not 

comply, the vessel suffered a constructive total loss. This could not be more plain. 

Prestige’s failure to comply with its own Hurricane Questionnaire Plan increased the 

hazard to the subject vessel that was insured. 

D. The Hurricane Questionnaire Plan Was Breached By Prestige, Such 

Breach Increased The Hazard, And The Policy Is Void Under New York, 

Florida, And Federal Law 

It was certainly not unreasonable to require Prestige to comply with its own 

Hurricane Questionnaire Plan based on the 8:00 a.m., Sunday, September 13, 2020, 

tropical storm warning for the Pensacola area. There is nothing in the Hurricane 

Questionnaire Plan regarding an analysis of a “cone of uncertainty.” This is a “red 

herring” issue raised by Prestige. Instead, the plain meaning of the language in the 

Hurricane Questionnaire Plan requires that when there is a named storm that 

potentially impacts the vessel’s location—especially with a tropical storm 

warning—action must be taken. Prestige’s failure to do so voids coverage. 

 

16 See footnote 10. 

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While this Court should apply New York law, Prestige’s failure to comply 

with the Hurricane Questionnaire Plan clearly increased the hazard and risk of 

Hurricane Sally such that even if this Court applies Florida law and specifically, Fla. 

Stat. § 627.409(2), coverage is void. See e.g., AXA Global Risks (UK), Limited v. 

Webb, 2000 WL 33179617 (M.D. Florida, July 28, 2000). The court there found that 

even under Florida law and even under the Fla. Stat. § 627.409(2), 

The breach and misrepresentation established here did increase the 

hazard insured against... Here, at the time the vessel sank, the insured 

represented that it would be on shore, and it was not. Thus, Section 

627.409 (2) is not a bar to AXA’s right to have the Policy declared void. 

Id, at *23. See also, Fireman’s Fund Ins. Co. v. Cox, 742 F. Supp. 609 

(M.D. Florida 1989) (finding that presence of additional crew members 

on board of the vessel did increase the hazard). Id., at *2-3. 

On a final note, Prestige offers the argument that this was an inevitable and 

unavoidable accident or act of God, while admitting that such is an extremely heavy 

burden of proof on the insured. But that is a tort principle, not a contract principle. 

Simply put, an Act of God is a defense to a tort, not a defense by the insured to its 

failure to comply with its warranty. 

In sum, Prestige should have begun to comply with its Hurricane 

Questionnaire Plan no later than 8:00 a.m. on Sunday, September 13, 2020, when a 

tropical storm warning was issued for an area that included Pensacola. Prestige’s 

complete and utter failure to comply with either Plan A or Plan B of its own 

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Hurricane Questionnaire Plan voids coverage in this matter for the subject vessel. 

This Court must declare the Policy to be void ab initio. 

IV. 

CONCLUSION 

Some important points here are undeniable: 

1. The Hurricane Questionnaire Plan is a warranty that was an integral 

part of the Policy. 

2. The Hurricane Questionnaire Plan is to be interpreted under New York 

law. 

3. Under New York law, warranties are strictly construed and are to be 

strictly complied with under the circumstances. 

4. Prestige admits it failed to comply with its own Hurricane 

Questionnaire Plan. 

5. Prestige tries to offer an excuse, but its failure to comply with either 

Plan A or Plan B of its Hurricane Questionnaire Plan voids coverage, 

and this Court should declare the Policy to be void ab initio. 

This Court should deny Prestige’s Motion for Summary Judgment and grant 

Great Lakes’ Motion for Summary Judgment. 

Dated: August 27, 2021. 

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Respectfully submitted, 

LUGENBUHL, WHEATON, PECK, RANKIN &

HUBBARD, A LAW CORPORATION

By: /s/ Todd G. Crawford 

Todd G. Crawford (MBN 102620) 

LUGENBUHL, WHEATON, PECK, 

RANKIN & HUBBARD 

2501 14th Street, Suite 202 

Gulfport, Mississippi 39501 

Telephone: (228) 206-0033 

E-Mail: tcrawford@lawla.com 

Attorney for Plaintiff 

CERTIFICATE OF COMPLIANCE

In compliance with Local Rule 7.1(F), I hereby certify that the foregoing 

Memorandum in Support of Plaintiff’s Motion for Summary Judgment contains a 

total of 5172 words, inclusive of all allowable exclusions. 

/s/ Todd G. Crawford 

Todd G. Crawford 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Memorandum 

was served on all counsel of record via the Court’s CM/ECF filing system on this 

the 27th day of August, 2021. 

/s/ Todd G. Crawford 

Todd G. Crawford

Case 3:20-cv-05954-RV-HTC Document 33 Filed 08/27/21 Page 24 of 24