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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

IN ADMIRALTY

CARPENTER GROUP INC.,

Plaintiff,

Case. No. 0:22-cv-62067-PAB

v.

ACCELERANT SPECLIATY

INSURANCE COMPANY,

Defendant.

____________________________________

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT

COMES NOW the Defendant, ACCELERANT SPECIALTY INSURANCE COMPANY 

(hereinafter “ACCELERANT”), by and through its undersigned attorneys, and pursuant to Rule 

56 of the Federal Rules of Civil Procedure and Rules 7.1 and 56.1 of the Local Rules of the United 

States District Court for the Southern District of Florida, file this its Motion for Summary Judgment, 

and further thereto would respectfully state as follows:

1. Defendant seeks summary judgment on the Plaintiff’s sole cause of action, Breach 

of Contract, and on the Defendant’s Fourth Cause of Action in the Amended Counterclaim for 

Declaratory Judgment contending that Plaintiff CARPENTER GROUP INC. (hereinafter 

“CARPENTER”) was in breach of Temporary Binder CSRYP/21666’s Letter of Survey 

Recommendations Compliance Warranty (hereinafter “the LOC Warranty”) at the time of the 

August 26, 2022 incident, rendering all coverage under Temporary Binder No. CSRYP/21666 void 

from inception. It is ACCELERANT’s position that a ruling by this Court that the Plaintiff’s 

breach of the LOC warranty renders the Temporary Binder void from inception and is thus a 

complete defense to coverage. 

Case 0:22-cv-62067-PAB Document 79 Entered on FLSD Docket 11/15/2023 Page 1 of 11
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MEMORANDUM OF LAW

The Defendant in the instant action is a foreign surplus lines marine insurance company 

which agreed to issue a Temporary Binder of marine insurance on a vessel which for insurance 

purposes was described as a 2001 65’ Viking motor vessel named “TALK N’ TRASH” 

(hereinafter “the Vessel”). The Temporary Binder provides $790,000 in Hull & Machinery 

coverage on the Vessel for a one-year period incepting on August 22, 2022, subject to the terms 

and provisions stated therein.

The instant action is one in which the Plaintiff has commenced a breach of contract action 

against the Defendant following a denial of coverage for an incident on August 26, 2022, in which 

the Vessel caught fire while being transported to CARPENTER’s dock, resulting in a constructive 

total loss (hereinafter “the incident.”) In response, ACCELERANT asserted a counterclaim for 

declaratory relief, seeking this Court’s ruling that the Temporary Binder afforded no coverage for 

the incident based on, inter alia, various breaches of warranty. Specifically for the purposes of this 

motion, the Temporary Binder contains a clear and unambiguous express warranty providing that 

all survey recommendations would be completed prior to any loss giving rise to a claim thereunder, 

and furthermore it states that any breach of warranty voids the insuring agreement from inception. 

As part of applying for a policy of marine insurance, CARPENTER had submitted just 

such a survey to ACCELERANT, performed by Allied Marine Consultants, Inc. on August 9th and 

10th (hereinafter “the Survey Report,” a true and correct copy of which is filed as Exhibit 2 to the 

Defendant’s Statement of Material Facts). The Survey Report included no less than eighty (80) 

separate recommendations, including, five (5) Category “A: First Priority/Safety And Compliance 

Deficiencies” and twenty-seven (27) Category “B: Second Priority/Findings Needing Timely 

Attention,” as well as forty-eight (48) Category “C: Surveyor’s General Findings and 

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Observations.” However, following ACCELERANT’s investigation into the incident, it was 

determined that in fact none of the recommendations contained in the Survey Report had been 

completed prior to the incident, and the Plaintiff has admitted to the fact that none of the 

recommendations had been addressed, much less completed, at the time of the Incident. 

(Defendant’s Statement of Material Facts, at ¶11). As such, Defendant is seeking Summary 

Judgment based upon material facts not in dispute establishing that the Plaintiff was in breach of 

the LOC Warranty, and that there can be no coverage under the Temporary Binder as a result. 

LEGAL ARGUMENT

I. SUMMARY JUDGMENT IS PROPER HERE

SINCE NO MATERIAL FACTS REMAIN IN DISPUTE

Summary judgment is appropriate where there is no genuine issue or dispute remaining as 

to the material facts in a case. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In addition, the 

federal maritime law recognizes the particularly appropriate nature of summary judgment in 

resolving marine insurance coverage questions. See, e.g., The Home Insurance Company v. Vernon

Holdings, 1995 A.M.C. 369 (S.D. Fla. 1994); Port Lynch, Inc. v. New England Int’l Assur. Of 

America, 754 F.Supp. 816 (W.D. Wash. 1991). See also, Talat Enterprises, Inc. v. Aetna Life & 

Cas. Co., 952 F.Supp. 773, 776 (M.D. Fla. 1996) (“the interpretation of an insurance contract 

question is a question of law which may be determined on summary judgment.”)

An issue of law is said to be “material” if it is something that might affect the outcome of 

the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A 

material fact is understood to be “genuine” only “if the record taken as a whole could lead a rational 

trier of fact to find for the non-moving party. Id., at 261, n. 2.

In opposing the motion for summary judgment filed by ACCELERANT herein, it is 

incumbent upon the Plaintiff to submit competent evidence which would be sufficient to satisfy 

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that exact same standard of proof that would be required of it at trial, which would take place only 

if summary judgment is denied. See Anderson. It is not sufficient to merely contend that some 

issues are unproven, or that unimportant differences or immaterial issues might arguably remain 

still unresolved. Id. See also, Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997).

As is clear from the Statement of Material Facts submitted in support of ACCELERANT’s

motion for summary judgment, there can be no dispute remaining with respect to any critical 

factor. No material fact remains in dispute: the Temporary Binder contains an explicit warranty 

requiring that all survey recommendations be completed prior to any loss, and the Plaintiff has 

admitted that it did not complete even one of the eighty (80) recommendations contained in the 

Survey Report. Caselaw in this district makes it abundantly clear that, in such a situation, the 

federal district court presented with a summary judgment motion involving a policy of marine 

insurance may resolve the dispositive issue of the breach of an explicit warranty under a similar 

New York choice of law clause. See e.g., Clear Spring Prop. & Cas. Co. v. Big Toys LLC, No. 22-

CV-21926, 2023 WL 4637095, at *7 (S.D. Fla. July 20, 2023); Great Lakes Ins. SE v. Lassiter, 

No. 21-21452-CIV, 2022 WL 1288741, at *11 (S.D. Fla. Apr. 29, 2022); Clear Spring Prop. & 

Cas. Co. v. Viking Power LLC, 608 F. Supp. 3d 1220, 1226 (S.D. Fla. 2022); Great Lakes Ins. SE 

v. Sunset Watersports, Inc., No. 20-CIV-61629-WPD, 2021 WL 5933708, at *11 (S.D. Fla. Nov. 

8, 2021). ACCELERANT therefore respectfully submits that the issues before the Court and its 

entitlement to summary judgment could not be clearer. 

II. CHOICE OF LAW

As a dispute arising under a maritime insurance contract, this case “fall[s] within the 

admiralty jurisdiction of the federal courts,” so it is “governed by maritime law.” GEICO Marine 

Ins. Co. v. Shackleford, 945 F.3d 1135, 1139 (11th Cir. 2019). This is no less true when the marine 

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insurance contract at issue is a temporary binder rather than a final policy. See Great Lakes Ins. 

SE v. Aarvik, No. 18-CV-60705, 2019 WL 201258, at *3 (S.D. Fla. Jan. 15, 2019) (applying federal 

maritime choice of law rules to a dispute over coverage under a temporary binder). However, when 

no “judicially established federal admiralty rule” resolves the issue at hand, federal courts “rely on 

state law when addressing questions of maritime insurance.” Id. (quoting Wilburn Boat Co. v. 

Fireman’s Fund Ins. Co., 348 U.S. 310, 314 (1955)). There is no judicially established federal 

admiralty law governing the effect of a breach of survey compliance warranty. See Travelers Prop. 

Cas. Co. of Am. v. Ocean Reef Charters LLC, 996 F.3d 1161, 1169 (11th Cir. 2021) (recognizing 

that only navigational limits and seaworthiness warranties are governed by a federal maritime rule 

of law). Thus, the Court must look to state law to fill in the gap of federal maritime law. 

Shackleford, 945 F.3d at 1139.

Under federal maritime choice of law rules, a choice of law clause in a marine insurance 

contract is considered presumptively valid and enforceable, unless the chosen state has no 

“substantial relationship” to the parties or transaction, or the chosen state’s law conflicts with the 

fundamental purposes of federal maritime law. Lassiter, 2022 WL 1288741, at *6 (citing Great 

Lakes Reinsurance (UK), PLC v. Rosin, 757 F. Supp. 2d 1244, 1257 (S.D. Fla. 2010)). Although 

the Eleventh Circuit has not had the opportunity to explicitly addressed under what circumstances 

a choice of law clause is to be enforced, it has looked to the Fifth Circuit’s analysis as to whether 

enforcing the provision “would be unreasonable or unjust.” Great Lakes Ins. SE v. Wave Cruiser 

LLC, 36 F. 4th 1346, 1354 (11th Cir. 2022) (quoting Great Lakes Reinsurance (UK) PLC v. 

Durham Auctions, Inc., 585 F.3d 236, 244 (5th Cir. 2009)).

The Temporary Binder contains the following choice of law clause:

It is hereby agreed that any dispute or claim arising hereunder (including noncontractual disputes or claims), or in connection with this Insuring Agreement, 

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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, any dispute 

or claim arising hereunder (including non-contractual disputes or claims), or 

in connection with this Insuring Agreement, in subject to the substantive laws 

of the State of New York.

(ECF No. 1-2, at 19) (emphasis in original).

ACCELERANT has “substantial connections” to the State of New York: 1) pursuant to the 

terms of the Temporary Binder, ACCELERANT’s agent for service of process is Rubin, Fiorella, 

Friedman & Mercante LLP in New York, 2) ACCELERANT and its parent company, Accelerant 

US Holdings, LLC, have an office in New York, and 3) ACCELERANT’s US Associate General 

Counsel is based in New York, 4) Rivington (underwriting agent for ACCELERANT) issued the 

Temporary Binder on behalf of ACCELERANT, and Rivington’s headquarters is in New York, 5) 

ACCELERANT maintains its loss fund account with JP Morgan in New York, and 6) 

ACCELERANT is an eligible surplus lines insurer in New York. (See Defendant’s Statement of 

Material Facts, ¶¶’s 12-18). Similar, and indeed lesser, connections have been found to be more 

than enough to demonstrate a “substantial connection” to the state of New York sufficient to 

enforce a choice of law clause. See, e.g., Big Toys LLC, at *7; Lassiter, at *6; Rosin, at 1250–51.

Nor could there be any argument that the application of New York law would be 

“unreasonable or unjust.” See Lassiter, at *7 (discussing the choice of law test under admiralty 

law). It is anticipated that counsel for CARPENTER will argue in opposition to the instant motion 

that the Temporary Binder’s choice of law clause should not apply in this case because it is 

supposedly contrary to the public policy of the state of Florida, which generally (though not 

always, as discussed below) requires a causal connection between a breach of warranty in a policy 

of marine insurance and the loss in order to deny coverage. See Fla. Stat. § 627.409(2) (“A breach 

or violation by the insured of a warranty... of a wet marine... insurance policy... does not void 

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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.”) The Court should not allow 

itself to be misled by such arguments, were they to be made. Also referred to as Florida’s “antitechnical statute,” this law simply does not apply in this case because Florida has “carved out an 

exception to section 627.409(2) for surplus lines insurers,” such as ACCELERANT. Lassiter, at 

*8 (citing Fla. Stat. § 626.913(4) (“[T]he provisions of chapter 627 do not apply to surplus lines 

insurance authorized under [sections] 626.913–626.937, the Surplus Lines Law.”)). All parties 

agree that ACCELERANT is a foreign surplus lines insurer. (See Defendant’s Statement of 

Material Facts, at ¶12). Thus, there can be no argument that application of New York’s strict or 

literal compliance rule would be contrary to the public policy of Florida, which specifically 

exempts surplus lines insurers from having to demonstrate a causal connection between the 

warranty breach and the loss per 627.409(2). Lassiter, 2022 WL 1288741, at *9 (“Given thisshared 

policy, the Court rejects Lassiter’s argument that application of New York law would conflict with 

a fundamental policy of Florida.”) In light of ACCELERANT’s undeniable connections to New 

York, the Temporary Binder’s choice of law clause is valid and enforceable. 

III. THE TEMPORARY BINDER IS VOID FROM INCEPTION 

DUE TO THE PLAINTIFF’S BREACH OF THE LOC WARRANTY

There can be no genuine dispute that the Plaintiff was in breach of the LOC Warranty at 

the time of the Incident. Despite the Survey Report containing a total of eighty (80) different 

recommendations, including five (5) Category “A: First Priority/Safety And Compliance 

Deficiencies” and twenty-seven (27) Category “B: Second Priority/Findings Needing Timely 

Attention,” as well as forty-eight (48) Category “C: Surveyor’s General Findings and 

Observations,” none of them had been completed prior to the Incident. Even those 

recommendations which the Survey Report explicitly stated related to vessel safety, as well as 

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recommendations to investigate and repair a possible fuel leak – which the Survey Report 

expressly noted was a “fire hazard” – had not been completed. 

The Plaintiff’s undeniable breach of the LOC warranty means that coverage under the 

Temporary Binder is void ab initio, without any requirement that ACCELERANT demonstrate a 

causal connection between the incident and the Plaintiff’s failure to complete the Survey Report 

recommendations, because, under New York State law, breach of a warranty in a marine insurance 

policy constitutes an absolute bar to coverage – notwithstanding that the loss was not caused by 

the breach, as discussed more fully below. 

New York law requires that express warranties “be literally complied with, and ... 

noncompliance forbids recovery, regardless of whether the omission had a causal relation to the 

loss.” Big Toys LLC, 2023 WL 4637095, at *4 (quoting Rosin, 757 F. Supp. 2d at 1257). 

Accordingly, under New York law, a breach of the LOC warranty would render the Temporary 

Binder void from inception. Lassiter, 2022 WL 1288741, at *11 (holding “New York law...

requires strict construction and compliance with maritime insurance warranties regardless of a 

breach’s materiality.”)

A similar set of circumstances occurred in the case of Great Lakes Ins. SE v. Chartered 

Yachts Miami LLC, where the insurer brought a declaratory judgment action alleging, inter alia, 

breach of the marine insurance policy’s nearly identical LOC warranty following an incident where 

the insured vessel took on water. No. 20-25046-CV, 2023 WL 5625729 (S.D. Fla. June 7, 2023). 

Just like in the present case, the insurer’s post-incident investigation determined that the insured 

had failed to complete all of the recommendations contained in the pre-insurance survey, including 

those related to vessel safety. Id., at *9. On the insurer’s motion for summary judgment, the district 

court held that there was no genuine dispute of material fact concerning the insured’s failure to 

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complete just one of the pre-insurance survey recommendations, specifically, the recommendation 

to have one of the vessel’s life rafts inspected and tagged. Id. Given the fact that this 

recommendation was incomplete, the court held that the Insured had breached the LOC warranty 

and that the policy of marine insurance was void as a result. Id. The same holding should result 

here where the Insured has admitted that not just one, but all of the eighty (80) recommendations 

contained in the Survey Report were not completed prior to the Incident. 

IV. THE PLAINTIFF’S CLAIM FOR BREACH OF CONTRACT MUST FAIL 

WHERE THE TEMPORARY BINDER IS VOID FROM INCEPTION

Because the Temporary binder is rendered void ab initio by the Plaintiff’s breach of the 

LOC warranty, any claim by the Plaintiff that ACCELERANT breached the contract must fail as 

a result. See, e.g, Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346, 1352 (11th Cir. 2022)

(“[a]fter determining that the Policy did not cover [the insured]’s claim, the district court dismissed 

[the insured]’s counterclaim for breach of covenant of good faith and fair dealing”); Great Lakes 

Reinsurance (UK) PLC v. Unplugged, LLC, No. 617CV2027ORL22DCI, 2019 WL 13267109, at 

*7 (M.D. Fla. Oct. 24, 2019) (holding that “[b]ecause the Insured’s counterclaim for breach of 

contract [wa]s based on the failure of [the insurer] to pay under the Policy..., and the Court finds 

that the Insured’s loss was not covered..., the Insured’s counterclaim is denied as moot.”) 

It is anticipated that the Plaintiff will argue that ACCELERANT breached the terms of the 

Temporary Binder per Florida law. Although Florida law is not applicable to this matter per the 

Temporary Binder’s choice of law clause, as discussed above, it should be noted that the result 

would be the same even under Florida law. See Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay 

Downs, Inc., 479 F.3d 1310, 1312 (11th Cir. 2007) (holding, per Florida law, that “breach of 

contract cannot be maintained when the contract... breached was void ab initio”) (quoting Thomas 

v. Ratiner, 462 So.2d 1157, 1159 (Fla. 3d DCA 1985)).

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As such, ACCELERANT seeks this Court’s grant of summary judgment that Plaintiff’s 

claim for breach of contract must be dismissed or deemed moot as result of the Plaintiff’s breach 

of warranty. 

CONCLUSION

WHEREFORE, ACCELERANT SPECIALTY INSURANCE COMPANY requests that 

the Court grant summary judgment in its favor as to the Plaintiff’s sole cause of action for breach 

of contract and on ACCELERANT’s Fourth Counterclaim for Breach of the LOC Warranty in 

holding that the Temporary Binder is void ab initio, and to award any and all such further relief as 

it may deem just and proper in the premises.

Dated: November 15, 2023 

Fort Lauderdale, Florida

THE GOLDMAN MARITIME LAW GROUP

Attorneys for Defendant

401 East Las Olas Boulevard

Suite 1400 

Fort Lauderdale, FL 33301

Tel (954)356-0460

Fax (954)832-0878

Cel (617)784-1100

By: /s/ Steven E. Goldman

STEVEN E. GOLDMAN

FLA. BAR. NO. 345210

By: /s/ Jacqueline L. Goldman 

JACQUELINE L. GOLDMAN

FLA. BAR. NO. 1005573

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 15, 2023, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send an electronic Notice of 

Filing to all counsel of record.

CHRISTOPHER R. FERTIG, ESQ.

Florida Bar No.: 218421

chris.fertig@fertig.com

DARLENE M. LIDONDICI, ESQ. 

Florida Bar No.: 516521

dml@fertig.com

FERTIG & GRAMLING

200 S.E. 13th Street

Fort Lauderdale, FL 33316

Telephone: 954-763-5020

Facsimile: 954-763-5412

THE GOLDMAN MARITIME LAW GROUP

Attorneys for Defendant

401 East Las Olas Boulevard

Suite 1400 

Fort Lauderdale, FL 33301

Tel (954)356-0460

Fax (954)832-0878

Cel (617)784-1100

By: /s/ Steven E. Goldman

STEVEN E. GOLDMAN

FLA. BAR. NO. 345210

By: /s/ Jacqueline L. Goldman 

JACQUELINE L. GOLDMAN

FLA. BAR. NO. 1005573

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