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 

MEMORANDUM OF AUTHORITIES IN SUPPORT 

OF ITS MOTION FOR SUMMARY JUDGMENT 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 1 of 31
TABLE OF CONTENTS 

MEMORANDUM OF AUTHORITIES .............................................................. 1 

STATEMENT OF FACTS ............................................................................ 1 

SUMMARY OF ARGUMENTS .................................................................. 5 

SUMMARY JUDGMENT STANDARD ..................................................... 6 

SUMMARY JUDGMENT EVIDENCE ....................................................... 8 

NEW YORK LAW APPLIES ....................................................................... 9 

ARGUMENTS .............................................................................................. 12 

Under New York Law, Breach of Warranties In Insurance 

 Policies Vitiate Coverage .................................................................. 12 

The Hurricane Plan Here Was A Warranty That Was 

 Breached ............................................................................................ 18 

No Breach of Contract or Bad Faith Exists ......................................... 24 

CONCLUSION .............................................................................................. 25 

 CERTIFICATE OF COMPLIANCE ................................................................ 27 

 CERTIFICATE OF SERVICE .......................................................................... 27 

EXHIBIT A 

Deposition Testimony of Captain Lance Powers 

EXHIBIT B 

Deposition Testimony of Tammy Blackwell 

EXHIBIT C 

Prestige’s Responses to Plaintiff’s Interrogatories 

EXHIBIT D 

Declaration of Beric Anthony Usher 

EXHIBIT E

Weather Data/Advisories from the National Hurricane Center 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 2 of 31
TABLE OF AUTHORITIES

Cases

316, Inc. v. Maryland Casualty Company, 625 F. Supp. 1187 (N.D. Fla. 2008) ....25 

Aguirre v. Citizens Casualty Company of New York, 441 F.2d 141, 143 (5th Cir. 

1971) ...................................................................................................................15 

Albany Ins. Co. v. Kieu, 927 F.2d 882, 890 (5th Cir. 1991) .....................................11 

All Underwriters v. Weisburg, 222 F. 3d 1309 (11th Cir. 2000) ..............................10 

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) ................................ 8 

Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010)

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

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ...................................... 6 

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

2000) ........................................................................................................ 6, 13, 17 

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) .........................15 

Canton Ins. Office v. Independent Transportation Co., 217 F. 213, 217 (9th Cir. 

1914) ...................................................................................................................15 

Capital Coastal Corp. v. Hartford Fire Ins. Co., 378 F. Supp. 163, 172 (E.D. Va. 

1974) ...................................................................................................................15 

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991) .............................12 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) .................................................. 7 

Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir. 

1991) ..................................................................................................................... 7 

Clark v. Coates Clark, Inc., 929 F.2d 604 (11th Cir. 1991) ....................................... 7 

Cogswell v. Chubb, 36 N.Y.S. 1076, 1077 (1st Dept. 1896) ....................................13 

Commercial Union Insurance v. Flagship Marine Services, Inc., 190 F.3d 26, 31-

33 (2d Cir. 1999) .................................................................................... 13, 14, 17 

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1161 (11th Cir. 2009) ................10 

Cunningham v. Insurance Co. of North America, et al, 521 F.2d 166, 170 

(E.D.N.Y. 2006) ........................................................................................... 13, 16 

Gamez v. Ace American Ins. Co., 638 Fed. App’x 850, 855 (11th Cir. 2016) .........17 

Gfroerer v. Ace American Ins. Co., 2004 WL 2966173, at *4-*5 (W.D.N.Y. 2004)

 ...................................................................................................................... 13, 16 

Great Lakes Insurance, S.E. v. Wave Cruiser, LLC, 2020 WL 7135586 (S.D. Fla., 

Nov. 2, 2020) ....................................................................................................8, 9 

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

(5th Cir. 2009) ........................................................................................... 9, 11, 12 

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

Fla. 2010) .................................................................................................... passim 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 3 of 31
Great Lakes Reinsurance (UK) PLC v. S. Marine Concepts, Inc., 2008 WL 

6523861, at *2 (S.D. Tex. 2008) .......................................................................... 9 

Gulf Tampa Dry Dock Company v. Great Atlantic Company, 757 F.2d 1172, 1174 

(11th Cir. 1985) ....................................................................................................10 

Hilton Oil Transport v. Jonas, 75 F.3d 627, 630 (11th Cir. 1996) ...........................13 

Home Insurance Co. v. Ciconett, 179 F.2d 892, 894 (6th Cir. 1950) .......................15 

In Re Balfour MacLaine International Limited, 85 F.3d 68, 80-81 (2d Cir. 1996) 14 

Insurance Company of North America v. Zaglool, 526 F. Supp. 2d 361, 367-68 

(E.D.N.Y. 2007) ........................................................................................... 13, 16 

Jarvis Towing and Transportation Corp. v. Aetna Ins. Co., 82 N.E. 2d 577 (1948)

 .............................................................................................................................17 

Kephart v. Certain Underwriters at Lloyds of London, 427 F. Supp. 3d 508, 512 

(S.D.N.Y. 2019) .......................................................................................... passim 

Lamar v. Wells Fargo Bank, 597 Fed. App’x 555, 556-57 (11th Cir. 2014) ............. 7 

Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364, 1366-67 (11th Cir. 1988) 13, 

15 

New Hampshire Insurance Company v. Dagnone, 394 F. Supp. 2d 480 (D.R.I., 

2005) ........................................................................................................ 9, 13, 17 

O’Connor Transportation Company v. Glens Falls Insurance Company, 189 

N.Y.S. 612, 614 (4th Dept. 1921) ........................................................................14 

Pozzi Window Co. v. Auto-Owners Ins., 446 F.3d 1178, 1179 (11th Cir. 2006) ......25 

Ridinger v. Dow Jones & Co., Inc., 651 F.3d 309 (2d Cir. 2011)) ............................ 8 

St. Paul Fire & Marine Insurance Company v. Lago Canyon, Inc., 561 F.3d 1181, 

1184 (11th Cir. 2009) ...........................................................................................10 

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

No. 19-13690 (11th Cir., May 6, 2021) ........................................................ 10, 11 

United States v. Four Parcels of Real Property in Greene and Tuscaloosa 

Counties, 941 F.2d 1428 (11th Cir. 1991) .........................................................7, 8 

Williamson Oil Co. v. Phillip Morris USA, 346 F.3d 1287 (11th Cir. 2003) ............. 6 

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) .................................................. 7 

Rules

Fed. R. Civ. P. 56(a)................................................................................................... 1 

Fed. R. Civ. P. 56(c)................................................................................................... 6 

Local Rule 7.1(F) .....................................................................................................27 

Treatises

Restatement (Second) of Conflict of Laws § 187-188 ............................................11 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 4 of 31
1 

MEMORANDUM OF AUTHORITIES IN SUPPORT OF 

PLAINTIFF, GREAT LAKES INSURANCE, S.E.’S 

MOTION FOR SUMMARY JUDGMENT 

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

Memorandum in Support of its Motion for Summary Judgment pursuant to Rule 

56(a) of the Federal Rules of Civil Procedure, and submits that this Court should 

grant its summary judgment against Defendant, Prestige Worldwide Pensacola 

Charters LLC d/b/a Legal Limits Outdoors (“Prestige”), because Prestige failed to 

comply with the Hurricane Plan in the subject insurance policy, voiding any 

potential coverage for damage to the insured vessel from Hurricane Sally, as outlined 

below. 

I. 

STATEMENT OF FACTS

1. This Court has admiralty jurisdiction over this matter since the dispute 

involves the interpretation of a marine insurance policy. 

2. Great Lakes issued a marine insurance policy to Prestige, Policy 

Number CSRYP/184311, with a period of cover from August 7, 2020, to August 7, 

2021, which was a renewal of a period of cover from August 6, 2019, to August 6, 

2020 (the “Policy”), on the scheduled vessel, M/V LEGAL LIMITS. The Policy 

was subject to its insuring terms and conditions, provisions, limitations, warranties, 

endorsements, definitions, deductibles, and exclusions. The Policy contained hull 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 5 of 31
2 

limits of $325,000, subject to a regular deductible of U.S. $6,500 and a named 

windstorm deductible of $16,250. 

3. The Policy was a Premier and Pleasure Yacht Insuring Agreement that 

contained important provisions as follows: 

2. INSURING AGREEMENT

This is a legally binding insurance contract between you and us, 

incorporating in full the application form signed by you. We will 

provide the insurance coverage described in this insuring agreement, in 

return for payment to us of the premium due and compliance by covered 

persons with the provisions, conditions and warranties of this insuring 

agreement. 

* * * 

3. Coverage A, Hull Machinery, Equipment and Dinghy 

If a sum insured is shown for Section A of the insuring agreement 

declaration page, we provide coverage for accidental physical loss of 

or damage to the Scheduled Vessel which occurs during the period of 

this insuring agreement and within the limits set out in the insuring 

agreement declaration page, subject to the insuring agreement 

provisions, conditions, warranties, deductibles and exclusions. 

* * * 

10. General Conditions & Warranties

* * * 

c. This insuring agreement incorporates in full your application 

for insurance 

* * * 

t. Where any term herein is referred to as a “warranty” or where 

any reference is made herein to the word “warranted”, the term shall be 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 6 of 31
3 

deemed a warranty and regardless of whether the same expressly 

provides that any breach will void this insuring agreement from 

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

from inception. 

* * * 

4. As part of the Application for the original issuance of the Policy, 

Prestige was required to complete a Hurricane Questionnaire/Plan (the “Hurricane 

Plan”). This Hurricane Plan was also part of the renewal questionnaire for the 

second year of coverage. It was unchanged from the first issuance of the Policy. It 

reads as follows: 

2. In the event of a storm warning will the vessel be: 

 a.) Afloat b) Ashore 

* * * 

4. Please provide full details of your plan for protecting the vessel 

in the event of a storm warning, for example the use of 

lines/ropes . . . 

 See attached. 

* * * 

5. Please supply details of your back-up plan (in the event you are 

prevented from implementing your initial plan). 

See attached. 

* * * 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 7 of 31
4 

Hurricane Plan A: 

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

stored ashore at the Pensacola Shipyard or Bahia Mar Marina 

and prepped for the storm. The vessel will be on the list to be 

pulled 48 hours before the storm approaches land. 

Hurricane Plan B: 

 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. 

5. The Hurricane Plan was a warranty incorporated into the Application, 

which was considered part of the Policy. Warranties require strict compliance. 

Therefore, in the event of a tropical storm or hurricane, Prestige was required to haul 

out and store the M/V LEGAL LIMITS ashore at the Pensacola Shipyard or Bahia 

Mar Marina to satisfy Hurricane Plan A. Otherwise, Prestige needed to comply with 

Hurricane Plan B. It did neither. 

6. Hurricane Sally struck the Pensacola area in the early morning hours of 

September 16, 2020. 

7. The M/V LEGAL LIMITS was still docked at its regular leased location 

at the Palafox Pier and Marina. 

8. Prestige did not haul out the vessel and store it at the Pensacola 

Shipyard or the Bahia Mar Marina. Nor did Prestige drive the vessel a safe distance 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 8 of 31
5 

away and store it at a marina or take it to a safe location with multiple anchors. In 

short, Prestige did not comply with the Hurricane Plan. 

9. Prestige contends it was either too late when it received notice of 

Hurricane Sally approaching the Pensacola area and/or it would have been unsafe to 

comply with the Hurricane Plan at that time. 

10. The M/V LEGAL LIMITS purportedly suffered damage close to the 

full hull limits of $325,000 less the named windstorm deductible. 

II. 

SUMMARY OF ARGUMENT

11. Prestige failed to comply with the Hurricane Plan when Hurricane Sally 

struck the Pensacola area. This failure is a breach of a warranty that vitiates 

insurance coverage as a matter of law. New York law applies based on the choice 

of law provision in the Policy. 

12. This Court should declare the Policy void ab initio as a matter of law 

and grant summary judgment on behalf of Great Lakes. 

13. Great Lakes should also have summary judgment on the Counterclaim 

filed by Prestige for the same reasons outlined above. Because the Policy is void ab 

initio, there can be no breach of contract as claimed by Prestige. Further, there is no 

so-called bad faith. 

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III. 

SUMMARY JUDGMENT STANDARD

14. Summary judgment is authorized, “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with affidavits, if any, 

show that there is no genuine issue as to any material fact and that the moving party 

is entitled to a summary judgment as a matter of law.” Fed. R. Civ. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also, AXA Global 

Risks (UK), Ltd. v. Webb, 2000 WL 33179617 (M.D. Fla., July 28, 2000) and 

Kephart v. Certain Underwriters at Lloyds of London, 427 F. Supp. 3d 508, 512 

(S.D.N.Y. 2019). 

15. Summary judgment is appropriate only in circumstances where, “the 

evidence is such that a reasonable jury could not return a verdict for the non-moving 

party.” Anderson v. Liberty Lobby, at 248; AXA Global Risks (UK), Ltd. v. Webb, at 

*2. The burden of demonstrating the satisfaction of the motion for summary 

judgment standard lies with the movant who must present, “pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any” that establish the absence of any genuine, material factual dispute. Anderson 

v. Liberty Lobby, at 248; Williamson Oil Co. v. Phillip Morris USA, 346 F.3d 1287 

(11th Cir. 2003). When there is no genuine issue of material fact that exists, then the 

moving party is entitled to judgment as a matter of law. Alvarez v. Royal Atlantic 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 10 of 31
7 

Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010); Lamar v. Wells Fargo 

Bank, 597 Fed. App’x 555, 556-57 (11th Cir. 2014). 

16. The movant has the burden of informing the district court of the basis 

for its motion and identifying those parts of the record that demonstrate an absence 

of a genuine issue of material fact. Lamar v. Wells Fargo Bank, at 557; Clark v. 

Coates Clark, Inc., 929 F.2d 604 (11th Cir. 1991). When that burden has been met, 

the burden shifts to the non-movant to demonstrate that there is a genuine issue of 

material fact, which precludes summary judgment. Clark v. Coates Clark, at 608; 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To do so, the non-moving party 

“may not merely rest on the allegations or denials of his pleading; rather his 

response, by affidavits or otherwise as provided in the Rule, must set forth specific 

facts demonstrating that there is a genuine issue for trial.” Kephart v. Certain 

Underwriters, at 514 (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). 

The moving party must show that, on all the essential elements of its case in which 

it bears the burden of proof at trial, no reasonable jury could find for the non-moving 

party. United States v. Four Parcels of Real Property in Greene and Tuscaloosa 

Counties, 941 F.2d 1428 (11th Cir. 1991); see also, Celotex Corp. v. Catrett, at 

331and Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th

Cir. 1991). “Conclusory statements, conjecture, and inadmissible evidence are 

insufficient to defeat summary judgment,” Kephart v. Certain Underwriters, at 514 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 11 of 31
8 

(quoting Ridinger v. Dow Jones & Co., Inc., 651 F.3d 309 (2d Cir. 2011). A court’s 

focus in reviewing a motion for summary judgment is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.” Great Lakes Insurance, 

S.E. v. Wave Cruiser, LLC, 2020 WL 7135586 (S.D. Fla., Nov. 2, 2020) (quoting 

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). 

17. Because no reasonable jury could find that Prestige complied with the 

subject warranty, then Great Lakes, as the movant, has demonstrated and will further 

demonstrate that there is no genuine issue for trial, and that specifically, the 

pleadings, depositions, answers to interrogatories, and attached Declaration show 

that Great Lakes is entitled to summary judgment as a matter of law. United States 

v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, at 1438. The 

breach of warranty by Prestige vitiates coverage, and this Court should declare the 

Policy to be void ab initio. 

IV. 

SUMMARY JUDGMENT EVIDENCE

18. The live pleading as to Great Lakes’ Motion for Summary Judgment is 

Plaintiff’s First Amended Complaint and Request for Declaratory Judgment. This 

pleading makes clear that the Hurricane Plan was a warranty that was part of the 

Application and part of the Policy. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 12 of 31
9 

19. Additionally, Great Lakes attaches the following evidence in support of 

its Motion for Summary Judgment: 

Exhibit A Captain Joseph Lance Powers’ Deposition 

Testimony; 

Exhibit B Tammy Blackwell’s Deposition Testimony; 

Exhibit C Prestige’s Responses to Great Lakes’ 

Interrogatories; and 

Exhibit D Declaration of Beric Anthony Usher. 

Exhibit E Weather Data/Advisories from the National 

Hurricane Center. 

20. There are no issues of fact concerning Prestige’s failure to comply with 

the Hurricane Plan. 

V. 

NEW YORK LAW APPLIES

21. The policy included a choice of law provision adopting United States 

Federal Admiralty law and/or New York Law. Other courts have upheld this choice 

of law provision and applied New York Law. Great Lakes Reinsurance (UK) PLC 

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

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

Insurance, S.E. v. Wave Cruiser, LLC, 2020 WL 7135586 (S.D. Fla., Nov. 2, 2020) 

at *8; Kephart v. Certain Underwriters 427 F. Supp. 508, 515 (S.D.N.Y. 2019); and 

New Hampshire Insurance Company v. Dagnone, 394 F. Supp. 2d 480 (D.R.I., 

2005). See also, Great Lakes Reinsurance (UK) PLC v. S. Marine Concepts, Inc., 

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

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 13 of 31
10 

22. The dispute in this case concerns a marine insurance policy issued for 

a vessel, which gives rise to federal admiralty jurisdiction. Great Lakes Reinsurance 

(UK) PLC v. Rosin, at 1250. See also, St. Paul Fire & Marine Insurance Company 

v. Lago Canyon, Inc., 561 F.3d 1181, 1184 (11th Cir. 2009); and All Underwriters v. 

Weisburg, 222 F. 3d 1309 (11th Cir. 2000). This Court must make a legal 

interpretation with respect to a marine insurance policy. Great Lakes Reinsurance 

(UK) PLC v. Rosin, at 1250; Gulf Tampa Dry Dock Company v. Great Atlantic 

Company, 757 F.2d 1172, 1174 (11th Cir. 1985). 

23. The choice of law clause in the Policy reads as follows: 

11. Service Of Suit, Choice of Law and Forum

It is hereby agreed that any dispute arising hereunder shall be 

adjudicated according to well established, entrenched principles 

and precedents of substantive United States Federal Admiralty law 

and practice but where no such well established, entrenched 

precedent exists, this insuring agreement is subject to the 

substantive laws of the State of New York. 

It is also hereby agreed that any dispute arising hereunder shall be 

subject to the exclusive jurisdiction of the Federal courts of the United 

States of America, in particular, the Federal District court within which 

you the Assured resides or the Federal District court within which your 

insurance agent resides. 

24. When a federal district court sits in admiralty, . . . “federal maritime 

conflict of laws control.” Travelers Property Casualty Company of America v. 

Ocean Reef Charters, LLC, No. 19-13690 (11th Cir., May 6, 2021); (quoting from 

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1161 (11th Cir. 2009)). See also, 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 14 of 31
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Great Lakes Reinsurance (UK) PLC v. Rosin, at 1250; Great Lakes Reinsurance 

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

Certain Underwriters, 427 F. Supp. 3d 508, 512, 514 (S.D.N.Y. 2019). “As Kieu 

states, ‘the court in maritime cases must apply general federal maritime choice of 

law rules.’” Great Lakes Reinsurance (UK) PLC v. Durham Auctions, at 241-42, 

quoting from Albany Ins. Co. v. Kieu, 927 F.2d 882, 890 (5th Cir. 1991). Under the 

Restatement (Second) of Conflict of Laws § 187-188, “the law of the jurisdiction 

chosen by the parties will be applied to the issue in question if the parties could have 

resolved the issue by an explicit provision in their agreement directed to that issue.” 

Great Lakes Reinsurance (UK) PLC v. Durham Auctions, at 242. 

25. Since the 11th Circuit very recently held that not all insurance warranties 

are to be interpreted by “entrenched maritime rules,” courts should look to the choice 

of law provision in the insurance contract. Travelers Property and Casualty 

Company of America v. Ocean Reef Charters, LLC, at *17; Great Lakes Reinsurance 

(UK) PLC v. Rosin, at 1251, and Great Lakes Reinsurance (UK) PLC v. Durham 

Auctions, at 242. Stated another way, a choice of law provision in a maritime 

contract will be upheld unless its enforcement would be unreasonable or unjust. 

Great Lakes Reinsurance (UK) PLC v. Rosin, at 1215; Great Lakes Reinsurance 

(UK) PLC v. Durham Auctions, at 242. New York law, as chosen by the parties in 

both Great Lakes cases cited above, was applied by the courts as to interpretation of 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 15 of 31
12 

warranties. New York law, as chosen by the parties here, should also apply as to the 

interpretation of the Hurricane Plan warranty in this case. 

26. As noted by the court in Great Lakes Reinsurance (UK) PLC v. Durham 

Auctions, Great Lakes maintains its trust accounts in New York, was approved as a 

surplus lines’ insurer in the State of New York, and has its agent for service of 

process in New York, specifically, Mendes & Mount, LLP, 750 7th Avenue, New 

York, NY 10019. In short, the choice of law of New York in the Policy is not 

unreasonable or unjust, and there is no reason for this Court to ignore the parties’ 

choice of law. Further, such choice of law clauses are not rendered unenforceable 

simply because one party claims it lacked sufficient bargaining power. Carnival 

Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991)(the inclusion of a forum 

selection clause in a cruise line ticket does not render the clause unenforceable under 

admiralty law simply because the passenger lacked bargaining power); Great Lakes 

Reinsurance (UK) PLC v. Rosin, at 1252. Simply put, the parties choice of law 

should be upheld and enforced, such that New York law should apply. 

VI. 

ARGUMENTS 

A. Under New York Law, Breach of Warranties in Insurance Policies Vitiate 

Coverage.

27. While it may be possible that entrenched federal law would apply to the 

interpretation of warranties in this matter, as stated above, Great Lakes is 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 16 of 31
13 

comfortable allowing the interpretation of New York law as required by case law. 

New York law has long provided that “the breach of an express warranty [in a 

maritime insurance policy], whether material to the risk or not, whether the loss 

happens through the breach or not, absolutely determines the policy and the assured 

forfeits his rights under it.” Great Lakes Reinsurance (UK) PLC v. Rosin, 757 F. 

Supp. 2d 1244, 1257 (S.D. Fla. 2010), quoting from Cogswell v. Chubb, 36 N.Y.S. 

1076, 1077 (1st Dept. 1896) [navigation limit warranty], affirmed 53 NE 1124 

(1899). This includes the interpretation of “Tow” Limit Warranties, Navigation 

Limit Warranties, Named Operator Warranties, “Put Ashore” Warranties, “Lay Up” 

Warranties, and Unseaworthiness Warranties.1 All of these have been found by New 

York courts, or other courts generally applying New York law, to be sufficient to 

declare a marine insurance policy void ab initio when they are breached. See, 

Commercial Union Insurance v. Flagship Marine Services, Inc., 190 F.3d 26, 31-33 

(2d Cir. 1999), where the court held that a warranty in a marine insurance contract 

must be strictly construed. 

 

1 Commercial Union Insurance v. Flagship Marine Services, Inc., 190 F.3d 26, 31-33 (2d Cir. 

1999) [Tow Limit Warranty]; Lexington Ins. Co. v. Cooke’s Seafood, 835 F. 2d 1364, 1366-67 

(11th Cir. 1988); and Hilton Oil Transport v. Jonas, 75 F.3d 627, 630 (11th Cir. 1996) [Navigation 

Limit Warranty]; Great Lakes Reinsurance (UK) PLC v. Rosin, 757 F. Supp. 1244, 1258 (S.D. 

Fla., 2010); Insurance Company of North America v. Zaglool, 526 F. Supp. 2d 361, 367-68 

(E.D.N.Y. 2007); and Gfroerer v. Ace American Ins. Co., 2004 WL 2966173, at *4 and *5 

(W.D.N.Y. 2004) [Named Operator Warranty]; Cunningham v. Insurance Co. of North America, 

et al, 521 F.2d 166, 170 (E.D.N.Y. 2006) and New Hampshire Insurance Company v. Dagnone, 

394 F. Supp. 2d 480, 486 (D.R.I. 2005); and AXA Global Risks (UK), Ltd. v. Webb, 2000 WL 

33179617 (M.D. Fla., July 28, 2000) [Put Ashore and Lay Up Warranties]; infra. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 17 of 31
14 

A “warranty” is a promise “by which the assured undertakes that some 

particular thing shall or shall not be done, or that some condition shall 

be fulfilled, for whereby he affirms or negates the existence of a 

particular state of facts . . .” [and] 

“as a general matter, warranties represent a promise by the insured to 

do or not to do something that the insurer considers significant to its 

risk of liability under an insurance contract . . . 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 . . . the 

rule of strict compliance with warranties in marine insurance contracts 

stems from the recognition that it is peculiarly difficult for marine 

insurers to assess their risk, such that insurers must rely on the 

representations and warranties made by insureds regarding their 

vessels’ conditions and usage . . .” Id, internal citations omitted.

See also, O’Connor Transportation Company v. Glens Falls Insurance Company, 

189 N.Y.S. 612, 614 (4th Dept. 1921) affirmed N.Y. 659, 135 N.E. 959 (1922); and 

In Re Balfour MacLaine International Limited, 85 F.3d 68, 80-81 (2d Cir. 1996). In 

Commercial Union Insurance v. Flagship Marine Services, at 33, the Court found it 

was not necessary to determine whether New York or Florida law applied because a 

Tow Limit Warranty existed in the policy; it was breached, and it was material to 

the insurer’s risk. 

“We find that the tow endorsement is unambiguous and that it precludes 

coverage under either New York or Florida law for the accident that 

occurred in this case . . . there could be no doubt that this warranty was 

breached in this case and that it was material, because the length of 

vessels towed was correlated to the risk assumed by Commercial 

Union. Therefore, under New York or Florida law, Flagship Marine’s 

breach precludes its recovery under the insurance contract. Id.

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15 

28. Florida law is consistent with New York law with respect to the strict 

interpretation of warranties in marine insurance contracts; a breach of a warranty 

vitiates coverage. With respect to a navigational limit warranty, Lexington Ins. Co. 

v. Cooke’s Seafood, 835 F.2d 1364, 1366-67 (11th Cir. 1988), held that admiralty law 

would require the strict construction of express warranties in marine insurance 

contracts. Therefore, a breach of the navigational warranty would enable the insurer 

to avoid the loss. See also, Aguirre v. Citizens Casualty Company of New York, 441 

F.2d 141, 143 (5th Cir. 1971), cert. den’d, 404 U.S. 829 (1971);2 Accord Home 

Insurance Co. v. Ciconett, 179 F.2d 892, 894 (6th Cir. 1950); Canton Ins. Office v. 

Independent Transportation Co., 217 F. 213, 217 (9th Cir. 1914); and Capital 

Coastal Corp. v. Hartford Fire Ins. Co., 378 F. Supp. 163, 172 (E.D. Va. 1974). 

29. Named operator warranties are treated similarly. In Great Lakes 

Reinsurance (UK) PLC v. Rosin, 757 F. Supp. 2d 1244, 1258, the court applied New 

York law because of the New York choice of law provision in the insurance policy, 

and found a breach of the named operator provision voids coverage even if the 

operation of the vessel did not cause or contribute to the accident: 

“Although a provision of New York’s insurance law now provides that 

a breach of a warranty does not void coverage unless the breach 

increased the risk of loss, damage, or injury within the coverage of the 

policy, that provision does not apply to express or implied warranties 

 

2

 The Eleventh Circuit in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 

(11th Cir. 1981) adopted as precedent decisions that the former Fifth Circuit rendered prior to 

October 1, 1981. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 19 of 31
16 

in a contract of marine insurance relating to the perils and risks of 

navigation . . . Because [Paul Rosin] was not a ‘named operator’ or 

‘covered person’ under Mr. Rosin’s policy, there was a breach of an 

express warranty. That breach, under New York law, voids coverage 

for the accident even if Paul’s driving of the vessel did not cause or 

contribute to the accident.” 

See also, Insurance Company of North America v. Zaglool, 526 F. Supp. 2d 361, 

367-68 (E.D.N.Y. 2007) (under New York law, breach of ‘named operator’ warranty 

precluded coverage as to the person who was operating the vessel and was injured 

in the accident.) Gfroerer v. Ace American Ins. Co., 2004 WL 2966173, at *4-*5 

(W.D.N.Y. 2004) (where dangerous vessel was being operated by a person other 

than named operator at time of accident, breach of ‘named operator’ warranty voided 

coverage for accident under New York law even though named operator was 

purportedly supervising the other person’s driving of the vessel), aff’d 184 Fed. 

App’x 26, 2006 WL 1427730 (2d Cir. 2006). Id. 

30. “Put ashore” warranties and “lay up” warranties are treated similarly as 

well. Cunningham v. Insurance Co. of North America, et al, 521 F.2d 166, 170 

(E.D.N.Y. 2006), in interpreting a lay up warranty during a fire, held that breach of 

a “lay up” warranty in a marine insurance policy need not be material to void 

coverage. 

“Plaintiff was in breach of the lay up warranty at the time of the fire . . 

. plaintiff argues that even if he was in breach of warranty, his breach 

was not material to the loss of the boat. New York courts, however, 

have long held that breaches in marine insurance contracts—even ones 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 20 of 31
17 

relating to lay up or docking requirements—need not be material in 

order for the insurer to disclaim coverage.” 

Id. See also, Jarvis Towing and Transportation Corp. v. Aetna Ins. Co., 82 N.E. 2d 

577 (1948); Commercial Union Insurance v. Flagship Marine Services, 190 F.3d 

26, 32 (2d Cir. 1999)(holding a breach of warranty need not be material in order for 

the insurer to disclaim coverage in a marine insurance contract), citing also to New 

Hampshire Insurance Company v. Dagnone, 394 F. Supp. 2d 480, 486 (D.R.I. 

2005)(“New York law forecloses any coverage if a plaintiff is in breach of a lay up 

warranty at the time of the accident, irrespective of the relationship between the 

breach and the damage.”) 

31. Gamez v. Ace American Ins. Co., 638 Fed. App’x 850, 855 (11th Cir. 

2016), involved a theft of a boat and trailer. Misrepresentations in the application 

were found to vitiate coverage even under Florida law because the 

misrepresentations were material to the loss. Citing also, AXA Global Risks (UK), 

Ltd. v. Webb, 2000 WL 33179617 (M.D. Fla., July 28, 2000) (A “laid up” warranty 

in the application was breached when insured vessel sank while docked in the water; 

the court held the breach increased the hazard and was material to the risk, so there 

was no coverage). Thus, while New York law should apply to the interpretation of 

the Hurricane warranty here, even under Florida law, there was a breach of warranty 

by Prestige material to the risk. Such breach vitiates coverage. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 21 of 31
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32. In sum, the parties chose the law to be applied to the insurance contract. 

In the absence of an entrenched federal rule of admiralty, New York law is to be 

applied. Under New York law, breach of an express warranty by the assured vitiates 

coverage, even if the breach is not causative of the loss. But here, Prestige’s breach 

of the Hurricane Plan obviously increased the loss of the vessel such that coverage 

is void ab initio. 

B. The Hurricane Plan Here Was A Warranty That Was Breached. 

33. The leading case on interpretation of a Hurricane Plan is Kephart v. 

Certain Underwriters at Lloyds of London, 427 F. Supp. 3d 508, 515 (S.D.N.Y. 

2019). Kephart involved a breach of a hurricane plan by which a vessel was ashore 

but was not properly tied down in anticipation of the storm. Kephart insisted that 

because the vessel was “hauled out” of the water before the storm, he had complied 

with the Hurricane Plan, even though it was not tied down as required by the 

hurricane plan. The court rejected that argument, finding that strict compliance was 

required. 

“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 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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34. Kephart v. Certain Underwriters is illustrative for demonstrating that a 

Hurricane Plan is a warranty; a Hurricane Plan must be strictly complied with, and 

failure to strictly comply with the Hurricane Plan vitiates coverage. In short, the 

Hurricane Plan in the Prestige Policy is also a warranty that must be strictly complied 

with; its breach requires a declaration that the policy is void ab initio. 

35. This is particularly applicable to this case, since Prestige’s Hurricane 

Plan required that the vessel be “stored ashore,” “at the Pensacola Shipyard or Bahia 

Mar Marina” “and prepped for the storm.” But the undisputed summary judgment 

evidence establishes the LEGAL LIMITS was afloat at its regular place of mooring. 

Clearly, Prestige did not comply with Part “A” of the Hurricane Plan. Likewise, the 

evidence shows Prestige did not “drive the vessel a safe distance away,” nor store it 

at a marina, nor take it to Bon Secour, in violation of Part “B” of the Hurricane Plan. 

36. For example, Prestige acknowledged the M/V LEGAL LIMITS was not 

stored ashore at the Pensacola Shipyard or the Bahia Mar Marina before Hurricane 

Sally struck the Pensacola area. It remained at the Palafox Marina.3 Furthermore, 

 

3

 See, Prestige’s Responses to Plaintiff’s Interrogatories. 

Interrogatory No. 1: Identify and explain in detail all steps you took to comply with the HPP for 

the LEGAL LIMITS in advance of Hurricane Sally. 

Response: . . . Not only did Lance attempt to contact Pensacola Shipyard multiple times to try to 

haul the vessel out of the water, but by the time Pensacola Shipyard refused to haul the vessel out, 

it became clear that the vessel could not be safely moved anywhere due to the strengthening winds 

and dangerous conditions . . . because of the deteriorating conditions, Captain Lance made the 

determination that the vessel could not be safely moved from Pensacola Palafox. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 23 of 31
20 

it was not on a list to be pulled 48 hours before the storm approached land, as also 

required by the Hurricane Plan warranty.4 

 

4

 EX A, Deposition Testimony of Captain Joseph Lance Powers, May 24, 2021 at pg. 48, ln. 18-

24; pg. 49, ln. 8-22; pg. 50, ln. 3-12 and ln. 20-25; pg. 51, ln. 1-4 and ln. 13-25; and pg. 52, ln. 1-

3. 

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: Now, at the bottom paragraph, it says, “For those of you on a hurricane haulout list at one of the boatyards, it is our understanding they are taking 

reservations for voluntary haul-outs over the next couple of days.” 

To my understanding, you took no action to arrange for a haul-out of the 

LEGAL LIMITS, correct? 

A: That is correct.

* * * 

Q: . . . there’s an email also with the subject header of “Tropical Storm Sally” 

dated September 14th at 10:13 a.m., is that right? 

A: Yes, sir. 

* * * 

Q: “we are currently under a tropical storm warning, flash flood watch, and 

coastal flood advisory.” Is that right? 

A: Yes, sir. 

* * * 

Q: Do you know whether you saw the updated track before or after this email? 

A: 10:13, yes, I’d seen the new forecasted track. 

Q: Okay, and then you would’ve gotten this email? 

A: Yes, sir. I—I do not know what time I opened the email. 

Q: Okay. And at that point, that’s when you started reaching out to Pensacola 

Shipyard about the haul-out? 

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21 

37. The Hurricane Plan required that Prestige store the M/V LEGAL 

LIMITS ashore at the Pensacola Shipyard or Bahia Mar Marina “in the event of a 

tropical storm.” [emphasis added]. If the vessel could not have been stored ashore 

at the marinas outlined above, it was to be driven a safe distance away and stored at 

a marina. None of this was done by Prestige despite their assurances to the contrary. 

While Prestige argues there was a question of when the vessel was in the direct path 

of Hurricane Sally, there was never a question that it would be subject to tropical 

storm conditions. 

38. As indicated, Captain Joseph Lance Powers, in charge of the M/V 

LEGAL LIMITS, knew on Saturday, September 12, 2020, that “we should be 

prepared for at least tropical storm conditions.” [Marina Management email sent at 

3:27 p.m. on September 12, 2020]. Yet, Captain Powers admits he did nothing at 

the time: 

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

A: Yes, sir. 

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

storm conditions at the time? 

A: No, sir. 

Q: You agree with me? 

 

A: Yes, sir. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 25 of 31
22 

A: Yes, sir.5

39. Prestige had an obligation to comply with the Hurricane Plan in the face 

of tropical storm conditions, which later became Hurricane Sally. If Prestige had 

made more serious attempts at getting the vessel to Pensacola Shipyard for haul-out, 

it would have indeed been hauled out.6 At the very least, the vessel could have been 

navigated to a safe harbor and anchored. Instead, Captain Powers did nothing in 

response to the tropical storm warnings he received on September 12, 2020. He had 

 

5

 See also, Exhibit E attached, Weather Data/Advisories from the National Hurricane Center. 

6 See, Deposition Testimony of Tammy Blackwell, Corporate Representative of FDC Holdings, 

Inc. d/b/a Pensacola Shipyard, May 25, 2021, at pg. 16, ln. 4-14; pg. 18, ln. 18-22; pg. 20, ln. 21-

25; pg. 21, ln. 1-2 and ln. 8-11. 

Q: . . . if a member of the public at large had called from September 12th to 

September 16th . . . and they said they wanted to be hauled out, then that 

was available to them. 

A: The 14th should have been available to them. 

* * * 

Q: Do you know when you-all stopped hauling vessels out for Hurricane 

Sally? 

A: It was Monday, the 14th. 

Q: Okay. And do you know what time that was? 

A: Our last haul was at 3:00 p.m. 

* * * 

Q: And can you give me an idea of how many vessels navigated to Pensacola 

Shipyard to be hauled out? . . . on the 14th? 

A: Three. 

* * * 

Q: Well, if you have it, how many got hauled out on Sunday, since y’all 

worked on Sunday? 

A: Six. 

* * * 

Q: And if somebody was five or six miles away, and it would take them an 

hour to get there, they—you know, it might take them—they may have 

had to call earlier than 12:00. 

A: That is correct. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 26 of 31
23 

an obligation on behalf of Prestige to take some action on that day, the following 

day on Sunday, September 13, 2020, and throughout Monday, September 14, 2020. 

But he took no action to protect the M/V LEGAL LIMITS in connection with 

Prestige’s Hurricane Plan. 

40. If Prestige had made some effort to get the M/V LEGAL LIMITS 

hauled out by Pensacola Shipyard as required in the Hurricane Plan, it would not 

have been damaged.7 Furthermore, Captain Powers admitted that a mandatory 

evacuation by the marina where the M/V LEGAL LIMITS was docked was not 

required to trigger the Hurricane Plan: 

Q: Is a mandatory marina evacuation required to trigger the 

Hurricane Plan to your understanding? 

A: No, sir.8

41. The Hurricane Plan warranty does not say, “make best efforts to 

comply” or words to that effect. Rather, the Hurricane Plan warranty is to be strictly 

construed under New York law, and it must be complied with under all 

 

7 See, Deposition Testimony of Tammy Blackwell of Pensacola Shipyard, May 25, 2021, pg. 27, 

ln. 20-22; and pg. 28, ln. 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. 

8

 Testimony of Captain Joseph Lance Powers, May 24, 2021, pg. 54, lns. 18-23. 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 27 of 31
24 

circumstances. More importantly, Prestige wrote the Hurricane Plan and submitted 

it for Great Lakes to accept and agree to bind the insurance. Because Prestige wrote 

the Hurricane Plan, such language is to be construed strictly against them, and as 

stated, they must strictly comply. Great Lakes relied upon Prestige’s commitment 

that they would comply with the Hurricane Plan or Great Lakes would not have 

agreed to issue the Policy.9 New York law requires that this Court find that such 

Hurricane Plan warranty was breached, and that such breach, though not having to 

be material to the risk, was indeed material to the risk and the loss. If Prestige had 

complied with the Hurricane Plan as written and the M/V LEGAL LIMITS had been 

“hauled out” by Pensacola Shipyard, it would not have been damaged by Hurricane 

Sally. In sum, this breach of the Hurricane Plan warranty here vitiates coverage and 

this Court must, as a matter of law, declare that the Policy is void ab initio. 

C. No Breach of Contract or Bad Faith Exists

42. Prestige has counter-claimed against Great Lakes for breach of contract 

and bad faith. This Court must grant summary judgment for Great Lakes on these 

causes of action as well. There are no fact issues for consideration. 

43. First, as emphasized throughout, New York law applies. Prestige has 

alleged breach of contract and bad faith under Florida law. But Florida law simply 

 

9

 See Declaration of Beric Anthony Usher, attached as Exhibit “D.” 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 28 of 31
25 

does not apply to an interpretation of the duties owed, if any, under this policy of 

marine insurance. 

44. Second, because there is no coverage under the Policy, it is axiomatic 

there can be no breach of contract or bad faith. Further, even if the coverage issue 

is subject to serious debate, there can be no bad faith as a matter of law. Pozzi 

Window Co. v. Auto-Owners Ins., 446 F.3d 1178, 1179 (11th Cir. 2006) (affirming a 

U.S. Magistrate’s decision where he granted judgment notwithstanding the verdict, 

in favor of an insurer where, “the coverage issue was and is subject to serious 

debate.” Id., at 1189). (See also, 316, Inc. v. Maryland Casualty Company, 625 F. 

Supp. 1187 (N.D. Fla. 2008), which held that liability must become reasonably clear 

before an insurer has a duty to pay). 

45. In sum, because New York law applies, there can be no successful 

allegation of breach of contract and bad faith under Florida law. However, even 

under Florida law, the coverage issue has clearly been hotly debated so bad faith 

cannot exist as a matter of law.

VII. 

CONCLUSION

46. Part of the important insurance coverages under the Policy relate to the 

Hurricane Plan which was written by Prestige. Great Lakes accepted the Hurricane 

Plan as prepared by Prestige, and assumed it would be followed as written. It 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 29 of 31
26 

constitutes a warranty in the policy. As specifically provided for, not only was the 

Hurricane Plan a warranty, but the warranty is part of the Application and the Policy. 

47. New York law applies since this is a marine insurance policy, and the 

choice of law should be honored. Assuming there is no entrenched federal precedent 

that would apply to the interpretation of the Hurricane Plan, the New York choice of 

law clause is to be enforced given Great Lakes’ substantial relationship with New 

York. Under New York law, a warranty in a marine insurance policy must be strictly 

complied with, and a breach voids coverage even if that breach was not material to 

the risk. But here, Prestige’s breach of the Hurricane Plan was clearly material to 

the risk of the loss. This Court should find as a matter of law that the Policy is void 

ab initio, and Prestige is not entitled to coverage under the Policy. Further, there is 

no breach of contract or bad faith by Great Lakes as a matter of law. Summary 

judgment for Great Lakes must be granted. 

Dated: August 9, 2021. 

Respectfully submitted, 

LUGENBUHL, WHEATON, PECK, RANKIN &

HUBBARD, A LAW CORPORATION

By: /s/ Todd G. Crawford 

Todd G. Crawford (MBN 102620) 

tcrawford@lawla.com

2501 14th Street, Suite 202 

Gulf Port, Mississippi 39501 

PH: (228) 206-0033 

FAX: (504) 310-9195 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 30 of 31
27 

ATTORNEYS FOR PLAINTIFF, GREAT 

LAKES INSURANCE, S.E. 

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 6629 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 9th day of August, 2021. 

/s/ Todd G. Crawford 

Todd G. Crawford 

Case 3:20-cv-05954-RV-HTC Document 31-1 Filed 08/09/21 Page 31 of 31