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 LIMITS OUTDOORS, § 

§ 

 Defendant § 

REPLY OF GREAT LAKES INSURANCE, S.E.’S TO RESPONSE OF 

PRESTIGE WORLDWIDE PENSACOLA CHARTERS, LLC D/B/A 

LEGAL LIMITS OUTDOORS TO THE MOTION FOR SUMMARY 

JUDGMENT OF GREAT LAKES INSURANCE, S.E. 

Case 3:20-cv-05954-RV-HTC Document 37 Filed 09/07/21 Page 1 of 18
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TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ......................................................................................... i

TABLE OF AUTHORITIES ............................................................................. ii-iii

I. SUMMARY OF ARGUMENT..................................................................... 1

II. APPLICABLE LAW ..................................................................................... 3

A. New York Law Does Apply And Under New York Law, The 

Hurricane Questionnaire Plan Was A Warranty That Must Be 

Strictly Complied With Or The Breach Of Same Voids Coverage ..... 3

B. Even If Florida Law Applies, Prestige Increased The Hazard And Risk

 .................................................................................................................... 7

C. . Even If Federal Maritime Law Applies, The Hurricane Questionnaire 

Plan Must Be Strictly Construed And Such Failure To Comply With 

Same Is A Breach Of Warranty That Voids Coverage ........................ 9

D. There Is No Ambiguity – the Hurricane Questionnaire Plan Was 

Triggered, at the latest, by the Tropical Storm Warning For the 

Pensacola Area At 8:00 a.m. On Sunday, September 13th .................. 10

E. The Seawall Reference At Palafox Is Another “Red Herring” .......... 11

III. CONCLUSION ............................................................................................ 11 

CERTIFICATE OF COMPLIANCE .................................................................. 14 

CERTIFICATE OF SERVICE ............................................................................ 14 

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TABLE OF AUTHORITIES 

Cases Page 

Accord Hawkspere Shipping Co. Ltd. v. Intamex, S.A., 330 F.3d 225 (4th Cir.2003)

 .................................................................................................................................... 4 

Burklow and Associates, Inc. v. Belcher, 719 So.2d 31 (Fla. 4th DCA 1998) ........... 6 

Chan v. Society Expeditions, Inc., 123 F.3d 1287 (9th Cir.1997) ............................. 4 

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

Cir. 2009) ............................................................................................................4, 5 

Great Lakes Reinsurance (UK) PLC v. Rosin, 257 F. Supp. 2d 1244 (S.D. Fla. 

2010) ...................................................................................................................4, 5 

Kephart v. Certain Underwriters at Lloyd’s of London, 427 F. Supp. 3d 508 

(S.D.N.Y. 2019) ................................................................................................7, 12 

Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364 (11th Cir. 1988) ................... 9 

Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763 (D.C.Cir.1992) ........................ 4 

Neely v. Club Med Management Services, Inc., 63 F.3d 166 (3rd Cir.1995) (en 

banc) ....................................................................................................................... 4 

Pozzi Window Co. v. Auto-Owners Ins., 446 F.3d 1178 (11th Cir. 2006) ................13 

RMI Holdings v. Aspen American Insurance Company, 2020 WL 6749042 (N.D. 

Fla. July 15, 2020) .................................................................................................. 5 

Stewart Cay Marina v. M/V SPECIAL DELIVERY, et al, 510 F. Supp. 2d 1063 

(S.D. Fla. 2007) ....................................................................................................... 6 

Stoot v. Fluor Drilling Services, Inc., 851 F.2d 1514 (5th Cir. 1988) ........................ 4 

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Travelers Prop. Cas. Co. of Am. V. Ocean Reef Charters, LLC, 996 F.3d 1161 (11th

Cir. 2021) ............................................................................................................... 9 

Other Statutes 

Fla. Stat. Sec. 327.59.................................................................................................. 6 

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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 LIMITS OUTDOORS, § 

§ 

 Defendant § 

REPLY OF GREAT LAKES INSURANCE, S.E.’S TO RESPONSE OF 

PRESTIGE WORLDWIDE PENSACOLA CHARTERS, LLC D/B/A 

LEGAL LIMITS OUTDOORS TO THE MOTION FOR SUMMARY 

JUDGMENT OF GREAT LAKES INSURANCE, S.E. 

GREAT LAKES INSURANCE, S.E. (“Great Lakes”) files this Reply to the 

Response of Defendant PRESTIGE WORLDWIDE PENSACOLA CHARTERS 

LLC d/b/a LEGAL LIMITS OUTDOORS (“Prestige”) to the Motion for Summary 

Judgment of Great Lakes. 

I. 

SUMMARY OF ARGUMENT 

Prestige argues that the Hurricane Questionnaire Plan was not triggered until 

Monday, September 14, 2020. This is just not so. The Hurricane Questionnaire 

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Plan is triggered by a “storm warning.”. Prestige’s arguments about the location of 

the tropical storm warning are immaterial because a tropical storm warning was 

issued for Pensacola at 8:00 a.m. on Sunday, September 13, 2020.1 Nevertheless, 

Prestige failed to do anything on that day to comply with either Plan A or Plan B of 

its Hurricane Questionnaire Plan. 

Prestige submitted its Hurricane Questionnaire Plan to Great Lakes with full 

knowledge that Great Lakes would expect compliance and to entice Great Lakes to 

issue the subject policy for the M/V LEGAL LIMITS. Hurricane Plan A required 

that, 

“In the event of a tropical storm or hurricane the vessel will be stored 

ashore at the Pensacola shipyard or BahiaMar Marina and prepped for 

the storm. The vessel will be on the list to [be] pulled 48hrs before the 

storm approaches land.” 

Hurricane Plan B required that, 

“In the event that the vessel is unable to be stored ashore in the marinas 

above in plan A the vessel will be driven a safe distance away and stored 

at a marina or the vessel will be taken to Bon Secour and anchored in a 

safe location with multiple anchors along with being tied up to pilings 

to ride out the storm.” 

This is not a question of steering currents, slow movements or volatile 

forecasts as Prestige postulates. There was a tropical storm warning for the 

Pensacola area at 8:00 a.m. on Sunday, September 13th. Under the plain language 

1

 R. Doc. 31-6. 

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of the Hurricane Questionnaire Plan, Prestige needed to take action. Its failure to 

act is a breach of warranty that voids coverage. 

The Hurricane Questionnaire Plan was not ambiguous. While Prestige 

seemingly argues that the Hurricane Questionnaire Plan fails to specify the precise 

location of a “storm warning” that would trigger its application, that is simply not 

material in the context of the current facts. Here, a tropical “storm warning” was 

issued for Pensacola. When a storm warning issued for the area where the vessel 

is located—in this case Pensacola—then the Hurricane Questionnaire Plan is indeed 

triggered, and Prestige is required to comply with the plan that it drafted. In fact, 

Prestige does not deny that it failed to comply with the Hurricane Questionnaire 

Plan; it simply tries to offer excuses for that failure. But its explanations do not 

“excuse” its breach of an express warranty in the policy. 

II. 

APPLICABLE LAW 

A. New York Law Does Apply And Under New York Law, The Hurricane 

Questionnaire Plan Was A Warranty That Must Be Strictly Complied 

With Or The Breach Of Same Voids Coverage 

Prestige argues that New York law does not apply, primarily because it 

contends Florida has more contacts with respect to the overall transaction. Prestige’s 

argument emphasizes contacts in Florida and tries to downplay the significance of 

the choice of law provision in the policy. The general rule is that a choice of law 

provision will be enforced unless the state in question “has no substantial 

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relationship to the parties or the transaction or the state's law conflicts with the 

fundamental purpose of maritime law.”2 Prestige cannot carry this burden because 

Great Lakes first applied to be a surplus lines carrier in New York, maintains bank 

accounts in New York, and accepts service of process through attorneys in New 

York; moreover, Great Lakes is a wholly owned subsidiary of Munich Re, which 

owns American Re, and the offices of both insurance companies are in New York.3 

Similarly, the Fifth Circuit has held that a “choice of law provision in a maritime 

insurance contract will be upheld in the absence of evidence that its enforcement 

would be unreasonable or unjust.” Great Lakes Reinsurance (UK) PLC v. Durham 

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

Great Lakes Reinsurance (UK) PLC v. Rosin, 257 F. Supp. 2d 1244, 1251 

(S.D. Fla. 2010), is directly on point. It involved the exact same choice of law 

provision as found in the case at bar. The insured in that case likewise argued that 

New York law should not apply because he was a Florida resident; the vessel was 

docked in Florida, and the policy was issued pursuant to Florida’s surplus lines 

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

citing Stoot v. Fluor Drilling Services, Inc., 851 F.2d 1514, 1517 (5th Cir.1988); 

Accord Hawkspere Shipping Co. Ltd. v. Intamex, S.A., 330 F.3d 225, 233 (4th Cir.2003); Chan v. 

Society Expeditions, Inc., 123 F.3d 1287, 1297 (9th Cir.1997); Neely v. Club Med Management 

Services, Inc., 63 F.3d 166, 197 n. 36 (3rd Cir.1995) (en banc); Milanovich v. Costa Crociere, 

S.p.A., 954 F.2d 763, 766–68 (D.C.Cir.1992). 

3

 These are the same factors in the case at bar. See, R. Doc. 31-5, Declaration of Anthony Usher. 

Case 3:20-cv-05954-RV-HTC Document 37 Filed 09/07/21 Page 8 of 18
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laws.4 However, the court in Rosin found that New York has a sufficient substantial 

relationship with Great Lakes to allow application of New York law. These factors 

included 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, as reflected in the Policy in Rosin (and is 

reflected in this Policy); and Great Lakes is a wholly owned subsidiary of Munich 

Re, which owns American Re, and the offices of both insurance companies are in 

New York.5 

Rosin found that the application of New York law to that marine insurance 

contract dispute was not unreasonable or unjust. Likewise, Great Lakes Reinsurance 

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

same clause also was not unreasonable or unjust and applied New York law. 

Prestige cites RMI Holdings v. Aspen American Insurance Company, 2021 

WL 2980528 (11th Cir. 2021), in support of its argument that Florida law should 

apply under the Restatement (Second) Conflict of Law's “most significant 

relationship” test. But that case simply does not apply because the policy involved 

in RMI Holdings did not contain a choice of law provision. Here, the application of 

4

 In fact, the court in Rosin found that Great Lakes insured approximately 4,000 of the 8,000 vessels 

in Florida. Rosin, at 1249. 

5

 These are the same factors in the case at bar. See, R. Doc. 31-5, Declaration of Anthony Usher. 

Case 3:20-cv-05954-RV-HTC Document 37 Filed 09/07/21 Page 9 of 18
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the choice of law provision adopting New York law is not unreasonable, not unjust, 

and should be enforced by this Court. 

Likewise, the case of Burklow and Associates, Inc. v. Belcher, 719 So.2d 31 

(Fla. 4th DCA 1998), also cited by Prestige, does not apply because it did not involve 

a marine insurance policy. Rather, it turned on the interpretation of a Florida statute 

that prevents a marina from requiring a boat owner to move a vessel after the 

issuance of a hurricane watch or warning; it has no application to an insurance 

policy. While the Burklow court determined that F.S.A. Section 327.59 was not preempted by federal maritime law, such relates solely to a tort defense.6

 As the court 

stated in Stewart Cay Marina v. M/V SPECIAL DELIVERY, et al, 510 F. Supp. 2d 

1063, 1070 (S.D. Fla. 2007), 

...accordingly, a negligence claim premised solely on the breach of the 

duty to remove a boat, must fail as there could be no duty to breach ... 

[however], the court also recognized that federal admiralty case law 

“supports the imposition of the duty on a vessel owner to take 

reasonable care for the protection of another’s property, which may, in 

certain circumstances, include moving the vessel after an official storm 

warning has been issued.” Id., at 1071. 

Simply put, as noted in Stewart Cay Marina, Burklow solely relates to 

lawsuits by a marina for damage done to their docks. It has nothing to do with 

6

 Fla. Stat. Sec. 327.59 states, 

“After June 1, 1994, marinas may not adopt, maintain, or enforce policies 

pertaining to evacuation of vessels which require vessels to be removed from 

marinas following the issuance of a hurricane watch or warning, in order to ensure 

that protecting the lives and safety of vessel owners is placed before interests of 

protecting property.” 

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coverage under marine insurance contract between an insurer and an insured. 

Therefore, Prestige’s argument that the application of New York law will somehow 

violate § 327.59 is a false premise because that statute does not apply to claims 

presented under insurance policies in the first place. Accordingly, there is no conflict 

between Florida law and New York law. 

In sum, New York law applies. The Kephart decision is directly on point.7 

Kephart involved an alleged breach of the Hurricane Plan by the insured. Here, the 

case at bar involves an alleged breach of the Hurricane Questionnaire Plan by the 

insured. Kephart involved a situation where the insured had the vessel ashore, as 

required under the Hurricane Protection Plan, but failed to take other steps to comply 

with the Plan. Here, Prestige admits it did not comply with Hurricane Questionnaire 

Plan; it simply tries to excuse its failure. Kephart found that the failure to comply 

with the Hurricane Plan was a breach of warranty that voided coverage as a matter 

of law. Similarly, under New York law, coverage is voided for Prestige because of 

their breach of warranty.

B. Even If Florida Law Applies, Prestige Increased The Hazard And Risk 

Prestige misses the mark in its Response by stating that it failed to increase 

the hazard or risk here. In a bizarre interpretation of the policy, Prestige argues that 

7 Kephart v. Certain Underwriters at Lloyd’s of London, 427 F. Supp. 3d 508, 515 (S.D.N.Y. 

2019). 

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it had nothing to do with increasing the wind speeds of Hurricane Sally; therefore, 

under Prestige’s reasoning, it did not increase the hazard or risk posed by Hurricane 

Sally. 

This is a straw man argument. Great Lakes has never argued that Prestige was 

personally responsible for the weather. Rather, Prestige’s admitted failure to comply 

with its own Hurricane Questionnaire Plan increased the hazard to the vessel posed 

by the Hurricane Sally. If Prestige had moved the vessel, the risk of damage would 

certainly have been decreased. Great Lakes need not prove precisely what would 

have happened to the vessel if Prestige had complied with the Hurricane 

Questionnaire Plan. Even if it suffered damage, it would have been of a different 

kind and character. The Hurricane Questionnaire Plan does not eliminate all risk of 

damage to the vessel, but it is certainly designed to lessen the risk. If Prestige wanted 

Great Lakes to provide coverage under the assumption that it would leave its vessel 

at its home marina and take no action whatsoever to minimize damage from a 

hurricane, it could have submitted such a hurricane plan for consideration. The 

policy may not have been issued at all, or the premium may have been higher. But 

Prestige cannot submit a plan requiring the vessel to be evacuated, do nothing, and 

still expect coverage. 

Similarly, the fact that other vessel owners chose not to haul out their vessels 

is likewise immaterial. Great Lakes did not insure those vessels. Those vessels did 

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not warranty that they would haul out their vessels in the event of a tropical storm 

or hurricane. The entire argument is a red herring.8 Prestige admittedly breached 

an express warranty under the Policy, and that breach was material to the hazard and 

the risk. 

In sum, even if Florida law applies, it is clear that Prestige increased the hazard 

or risk by failing to comply with its own Hurricane Questionnaire Plan. This failure 

was a breach of warranty that voids coverage. 

C. Even If Federal Maritime Law Applies, The Hurricane Questionnaire 

Plan Must Be Strictly Construed And Such Failure To Comply With 

Same Is A Breach Of Warranty That Voids Coverage 

There does not appear to be any federal maritime law interpreting a Hurricane 

Protection Plan or a Hurricane Questionnaire Plan, unlike some other warranties.9 

Should this Court find that federal maritime law applies, then it is clear that strict 

conformity with such warranty, namely the Hurricane Questionnaire Plan, is 

8

 It does not matter that only 9 vessels out of 52 at Pensacola Shipyard were hauled out before 

Sally struck the Pensacola area. The fact is they were hauled out before Sally struck the Pensacola 

area, and this demonstrates that haul out was available if Prestige had acted sooner as required 

under the Hurricane Questionnaire Plan. Three (3) of those vessels hauled out were not in the 

Priority Program and were not damaged by Sally. See R. Doc. 31-3, Deposition Testimony of 

Tammy Blackwell, pg. 27, lns. 2-5 and 13-16; pg. 28, lns. 1-7. 

9

 See, Travelers Prop. Cas. Co. of Am. V. Ocean Reef Charters, LLC, 996 F.3d 1161 (11th Cir. 

2021); see also, Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364, 1366-67 (11th Cir. 1988), 

by which the breach of a navigational warranty was interpreted strictly under federal maritime law, 

and by which the court further found that strict conformity to such warranty was required or 

coverage was voided. 

Case 3:20-cv-05954-RV-HTC Document 37 Filed 09/07/21 Page 13 of 18
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required. Prestige’s failure to comply with its own Hurricane Questionnaire Plan, 

either Plan A or Plan B, is a breach of warranty of the Policy that voids coverage. 

D. There Is No Ambiguity – the Hurricane Questionnaire Plan Was 

Triggered, at the latest, by the Tropical Storm Warning For the 

Pensacola Area At 8:00 a.m. On Sunday, September 13th 

Prestige continues to argue that its own Hurricane Questionnaire Plan was 

somehow ambiguous. Great Lakes previously addressed this issue in its Response 

to Prestige’s Motion for Summary Judgment.10 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. 

Read together, these provisions require that if there is a tropical storm or 

hurricane warning that could affect the vessel, Prestige would take steps to store it 

ashore or otherwise move it to a safe location. There is no need for this Court to 

identify the precise definition of “Storm warning” because it obviously includes a 

tropical storm warning or hurricane warning. As stated, a tropical storm warning 

10 R. Doc. 33 

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was issued for Pensacola no later than 8:00 a.m. on Sunday, September 13th. This 

triggered the Hurricane Questionnaire Plan. There is no ambiguity, and Prestige’s 

argument must be rejected by this Court. 

E. The Seawall Reference At Palafox Is Another “Red Herring”

For some reason, Prestige emphasizes that the seawall at Palafox Marina may 

have been deficient.11 If anything, that argument buttresses Great Lakes’ position 

that leaving the vessel at the marina increased the risk of damage from a hurricane. 

But whether the seawall was deficient has nothing to do with Prestige’s failure to 

comply with its Hurricane Questionnaire Plan. Simply put, Prestige agreed it would 

remove the vessel from the Palafox Marina. Since the vessel was not supposed to 

be at the Palafox Marina when Hurricane Sally approached, any deficiency in the 

seawall is immaterial to coverage under the policy. Again, if anything, such 

deficiency increased the risk of damage to the vessel, thus confirming the breach of 

warranty was material to the risk such that coverage is void even if Florida law 

applies. 

III. 

CONCLUSION 

One thing is undeniably clear and uncontroverted: Captain Powers of Prestige 

took no action to comply with the Hurricane Questionnaire Plan at 8:00 a.m. on 

11 R. Doc. 34 

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Sunday, September 13th, when a tropical “storm warning” was issued for the 

Pensacola area. If he had, Prestige likely could have complied with either Plan A or 

Plan B.12 Either plan was available to Captain Powers that day, but he chose to either 

ignore the 8:00 a.m. warning, or he simply missed it. Regardless, since the Hurricane 

Questionnaire Plan was clearly triggered then, the failure to comply was a violation 

of the warranty that voided coverage. 

There is no reason for this Court not to enforce the choice of law provision in 

the Policy. It is not unreasonable or unjust, and previous courts have enforced the 

very same provision as written. Therefore, either maritime law or New York state 

law apply. Under either, the breach of the hurricane plan voids coverage. 

The Kephart decision is directly on point. Under the Kephart decision, a 

Hurricane Protection Plan or Hurricane Questionnaire Plan must be strictly complied 

with as a warranty. Failure to comply with the warranty voids coverage. 

Further, under New York law, bad faith does not exist where there is strict 

interpretation in a marine insurance contract. Since New York law applies, as has 

been shown, then bad faith must be rejected summarily by this Court. Further, there 

12 Prestige misstates testimony of Tammy Blackwell of Pensacola Shipyard. She clearly testified 

that the vessels hauled out before Sally were not damaged. See, Testimony of Tammy Blackwell, 

pg. 27, lns. 2-5, 3-16; pg. 28, lns. 1-7. R. Doc. 31-3. 

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has been a serious debate regarding coverage, and as Great Lakes pointed out in its 

Motion for Summary Judgment, that eliminates bad faith even under Florida law.13

In sum, New York law applies to the interpretation of Prestige’s Hurricane 

Questionnaire Plan. Prestige’s failure to comply with its warranty under its Policy 

voids coverage. This Court should grant Great Lakes’ Motion for Summary 

Judgment and deny Prestige’s Motion for Summary Judgment. 

Dated: September 7, 2021. 

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 

13 R. Doc. 31-1, also Pozzi Window Co. v. Auto-Owners Ins., 446 F.3d 1178, 1189 (11th Cir. 2006) 

is directly on point despite Prestige’s protestations to the contrary. Pozzi Window involved a 

summary judgment on behalf of the insured assignee as to coverage, but a directed verdict for the 

insurer on bad faith: 

“For example, as the magistrate judge’s order explained, the coverage issue was 

and is subject to serious debate; the evidence showed that Auto-Owners’ denial of 

coverage was well-reasoned; there was no evidence that Auto-Owners 

misrepresented the terms of its policies; [and] Auto-Owners did not subject its 

insured to any damages beyond the denial of coverage.” 

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CERTIFICATE OF COMPLIANCE

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

Reply Memorandum in Support of Plaintiff’s Motion for Summary Judgment 

contains a total of 3,113 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 Reply 

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

system on this the 7th day of September, 2021. 

/s/ Todd G. Crawford 

Todd G. Crawford

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