UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

PALM BEACH DIVISION 

KINSALE INSURANCE COMPANY, 

Plaintiff, 

v. CASE NO: 

MATA CHORWADI, INC. d/b/a 

HOMING INN and ANTHONY VARONE, 

Defendants. 

____________________________________/ 

COMPLAINT FOR DECLARATORY JUDGMENT AND DAMAGES 

KINSALE INSURANCE COMPANY (“Kinsale”) files suit against MATA CHOWARDI, 

INC. d/b/a HOMING INN (“Homing Inn”) and ANTHONY VARONE, and alleges: 

NATURE OF THE ACTION 

1. This is an action for declaratory relief under 28 U.S.C. § 2201 and damages over 

whether there is coverage for a claimant’s overdose from fentanyl at an insured motel under an 

insurance policy with an Absolute Pollution Exclusion and Chemical Materials Exclusion, among 

others. 

JURISDICTION AND VENUE 

2. This Court has jurisdiction under 28 U.S.C. § 1332 because there is complete 

diversity of citizenship between plaintiff and defendants, and the amount in controversy exceeds 

$75,000, exclusive of attorney’s fees and costs. 

3. Venue is proper in this district because Kinsale issued and delivered the policy to 

its named insured Homing Inn in this district, the underlying lawsuit is pending in this district, 

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defendant Homing Inn has its principal place of business in this district, and “a substantial part of 

the events giving rise to the claim occurred in this district.” See 28 U.S.C. § 1391(b)(2). 

4. All conditions precedent occurred, were performed, or have been waived. 

THE PARTIES 

5. Kinsale is an Arkansas corporation with its principal place of business in Virginia. 

For purposes of this action, Kinsale is an eligible surplus lines insurer that issued a commercial 

general liability policy to Homing Inn. 

6. Homing Inn is a Florida corporation with its principal place of business in Boynton 

Beach, Florida. Homing Inn is the defendant in an underlying wrongful death lawsuit by Anthony 

Varone, as personal representative of the estate of Laura Varone. Homing Inn seeks coverage under 

the Kinsale policy. 

7. Anthony Varone is domiciled in Florida. 

THE FENTANYL OVERDOSE OF LAURA VARONE 

8. Anthony Varone sued Homing Inn for the wrongful death of Laura Varone on 

06/07/2019. (A copy of the complaint is attached as Exhibit “A.”) 

9. Ms. Varone died from using fentanyl at Homing Inn’s premises. (Compl. ¶29.) 

10. “Fentanyl is a synthetic opioid that is 50-100 times stronger than morphine. 

Pharmaceutical fentanyl was developed for pain management treatment of cancer patients and 

applied in a patch on the skin. Because of its powerful opioid properties, Fentanyl is also diverted 

for abuse. Fentanyl is added to heroin to increase its potency or be disguised as highly potent 

heroin.” (See https://www.dea.gov/factsheets/fentanyl.) 

11. According to the complaint, Homing Inn is responsible for Ms. Varone’s death 

because the motel failed to take reasonable action to deter illegal drug activity or to provide access 

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to reasonable medical care, like Narcan, which can be used to save people when they overdose on 

illegal drugs. (Compl. ¶24.) 

12. Homing Inn, the complaint alleges, should have taken reasonable steps to protect 

Ms. Varone because it created a foreseeable zone of risk for its invitees by tolerating, condoning, 

and sanctioning the distribution and use of illegal drugs at its premises. (Id., ¶¶16, 22.) 

13. Kinsale is defending Homing Inn in the lawsuit under a complete reservation of 

rights. 

THE KINSALE POLICY 

14. Homing Inn purchased a new surplus lines insurance policy from Kinsale, bearing 

Policy Number 0100080090-0, effective from 01/29/2019 to 01/29/2020. (A copy of the policy is 

attached as Exhibit “B.”) 

15. All of the terms of the policy were initially disclosed to Homing Inn. 

16. All of the terms of the policy were then disclosed to Homing Inn in a Binder. 

17. Homing Inn accepted all of the terms of the policy. 

COUNT I – THE ABSOLUTE POLLUTION EXCLUSION 

18. Kinsale incorporates Paragraphs 1 through 17.

19. The policy includes the following exclusion:

EXCLUSION - ABSOLUTE POLLUTION AND 

POLLUTION RELATED LIABILITY 

This endorsement modifies insurance provided under the following: 

 

ALL COVERAGE FORMS 

The following exclusions are added to this policy. If the policy already includes a 

pollution exclusion or a pollution related exclusion, such exclusion(s) is (are) 

deleted and replaced with the following: 

1. This insurance does not apply to any claim or “suit” for “bodily injury”, 

“property damage”, “personal and advertising injury” or other injury or 

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damage arising directly or indirectly out of, related to, or, in any way 

involving: 

Pollution/environmental impairment/contamination or any expenses or any 

obligation to share damages with or repay anyone else who must pay 

damages from same in conjunction with occurrences arising out of or 

alleged to have arisen out of same. All liability and expense arising out of 

or related to any form of pollution, whether intentional or otherwise and 

whether or not any resulting injury, damage, devaluation, cost or expense is 

expected by any insured or any person or entity, is excluded throughout this 

policy. 

2. This insurance does not apply to any damages, claim, or “suit” arising out of 

the actual, alleged or threatened discharge, dispersal, seepage, migration, 

release or escape of “pollutants” including but not limited to any: 

a. “Bodily injury”, “personal and advertising injury”, “property 

damage” or other injury or damages for the devaluation of property, 

or for taking, use or acquisition or interference with the rights of 

others in or on property or air space, or any other type injury or 

expense; or 

b. Any loss, cost, expense, fines and/or penalties arising out of any (i) 

request, demand, order, governmental authority or directive that of 

any private party or citizen action that any insured, or others, test 

for, monitor, clean up, remove, contain, treat, detoxify or neutralize 

or in any way respond to, or assess same, the effects of “pollutants”, 

environmental impairments, contaminants or (ii) any litigation or 

administrative procedure in which any insured or others may be 

involved as a party as a result of actual, alleged or threatened 

discharge, dispersal, seepage, migration, release, escape or 

placement of “pollutants”, environmental impairments, or 

contaminants into or upon land, premises, buildings, the 

atmosphere, any water course, body of water, aquifer or ground 

water, whether sudden, accidental or gradual in nature or not, and 

regardless of when. 

These exclusions apply regardless of whether: 

1. Injury or damage claimed is included within the “products-completed 

operations hazard” of the policy; or 

2. An alleged cause for the injury or damage is the insured’s negligent hiring, 

placement, training, supervision, retention, act, error or omission. 

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The following definition is added to the policy. If the policy already includes a 

definition of “pollutants” such definition is deleted and replaced with the following: 

“Pollutants” means any solid, liquid, gaseous, fuel, lubricant, thermal, acoustic, 

electrical, or magnetic irritant or contaminant, including but not limited to smoke, 

vapor, soot, fumes, fibers, radiation, acid, alkalis, petroleums, chemicals or “waste”. 

“Waste” includes medical waste, biological infectants, and all other materials to be 

disposed of, recycled, stored, reconditioned or reclaimed. 

(See Form ADF3003 0110.) 

20. Ms. Varone died from using fentanyl at Homing Inn. 

21. Fentanyl qualifies as a “pollutant” under the policy. 

22. Accordingly, Kinsale has no duty to defend or indemnify Homing Inn. 

COUNT II – THE CHEMICAL MATERIALS EXCLUSION 

23. Kinsale incorporates Paragraphs 1 through 17.

24. The policy includes the following exclusion:

EXCLUSION - NUCLEAR, BIOLOGICAL 

OR CHEMICAL MATERIALS 

This endorsement modifies insurance provided under the following: 

 

ALL COVERAGE FORMS 

This insurance does not apply to any loss, injury, claim or damage arising directly 

or indirectly out of or relating to any activity by an individual acting alone, or 

individuals acting as part of a group, that involves any violent act, including the 

threat of any activity or preparation for any activity that involves the use, release, 

dispersal, discharge, escape or application of: 

a. Nuclear materials, or directly results in nuclear reaction or radiation or 

radioactive contamination; or 

b. Pathogenic or poisonous biological or chemical materials. 

(See Form ADF010 0110.) 

25. Ms. Varone died from using fentanyl at Homing Inn. 

26. Fentanyl qualifies as “chemical materials” under the policy. 

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27. Accordingly, Kinsale has no duty to defend or indemnify Homing Inn. 

COUNT III – OTHER POLICY EXCLUSIONS 

28. Kinsale incorporates Paragraphs 1 through 17. 

29. Exclusion a. Expected or Intended Injury bars coverage to the extent the complaint 

alleges that Ms. Varone’s drug use and overdose was expected by Homing Inn. (See Form CG 00 

01 10 01, Pg. 2/16.) 

30. The Liquor Liability exclusion bars coverage to the extent Homing Inn is being 

sued by reason of causing or contributing to the intoxication of any person. (See Form CAS3019 

0110, Pg. 1/1.) 

31. The Failure to Maintain exclusion bars coverage to the extent the complaint alleges 

that Ms. Varone’s drug use and overdose involved a violation by Homing Inn of any law, local 

order or directive involving any duty to maintain any room in safe, sanitary, healthy, habitable or 

tenantable condition. (See Form CAS3103 0718, Pg. 1/2.) 

32. The Duty to Defend exclusion prevents Kinsale from defending a lawsuit where 

there is no coverage under the policy. (See Form CAS3043 0817, at Pg. 2/3.) 

33. Accordingly, Kinsale has no duty to defend or indemnify Homing Inn. 

RELIEF REQUESTED 

Kinsale respectfully requests that this Court: 

a. Take jurisdiction and adjudicate the rights of the parties under the Kinsale 

policy; 

b. Declare the following: 

i. Homing Inn is not entitled to coverage because the Absolute 

Pollution exclusion applies; 

ii. Homing Inn is not entitled to coverage because the Chemical 

Materials exclusion applies 

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iii. Homing Inn is not entitled to coverage because the Expected or 

Intended Injury exclusion applies; 

iv. Homing Inn is not entitled to coverage because the Liquor Liability 

exclusion applies; 

v. Homing Inn is not entitled to coverage because the Failure to 

Maintain exclusion applies; and 

vi. Homing Inn is not entitled to a defense from Kinsale because there 

is no coverage under the policy. 

c. Award Kinsale all expenses Kinsale spent defending Homing Inn in the underlying 

wrongful death action. 

d. Award Kinsale all costs incurred to prosecute this action, as well as other relief this 

Court deems equitable, just, and proper. 

Dated: 09/16/2022 

Respectfully submitted, 

/s/SINA BAHADORAN 

SINA BAHADORAN 

Florida Bar No. 523364 

Sina.Bahadoran@clydeco.us

SERGIO A. BUENO

Florida Bar No. 112401 

Sergio.Bueno@clydeco.us

Clyde & Co US LLP 

1221 Brickell Avenue 

Suite 1600 

Miami, Florida 33131 

T: 305.446.2646 

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