UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

Case No. _________

MT. HAWLEY INSURANCE COMPANY, 

Plaintiff, 

v. 

PLYMOUTH PLAZA, LLC, 

Defendant.00065 

__________________________________/ 

COMPLAINT 

Plaintiff Mt. Hawley Insurance Company (“Mt. Hawley”), by its attorneys, 

Delahunt Law PLLC, for its complaint alleges upon information and belief: 

JURISDICTION, PARTIES AND VENUE 

1. This is, in part, an action for declaratory judgment pursuant to Federal Rule 

of Civil Procedure 57 and 28 U.S.C. section 2201. 

2. At all relevant times, Mt. Hawley was an Illinois corporation with its principal 

place of business in Illinois. 

3. At all relevant times, defendant Plymouth Plaza, LLC (“Plymouth Plaza”) 

was a Florida limited liability company with its principal place of business in Florida. 

4. At all relevant times, Zev Freidus was managing member of Plymouth 

Plaza, and a citizen of Florida. 

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5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. section 

1332(a)(1) based upon complete diversity of citizenship of the parties and an amount in 

controversy that exceeds $75,000. 

6. Venue is proper in this Court pursuant to and 

FACTS 

7. At all relevant times, Plymouth Plaza was engaged in the business of 

owning a premises including a commercial office building and parking garage located at 

26750 U.S. Highway 19 North in Clearwater, Florida. 

8. Mt. Hawley issued Plymouth Plaza a Commercial General Liability 

insurance policy (No. GGL00027460) for the period December 17, 2021, to December 

17, 2022. A certified copy of the Mt. Hawley policy is attached hereto as Exhibit 1. 

9. Subject to all of its terms and conditions, the Mt. Hawley policy includes 

coverage for bodily injury and property damage liability subject to a $1 million peroccurrence limit. 

10. The Mt. Hawley policy’s Limitation of Coverage to Designated Premises or 

Project endorsement states: 

This insurance applies only to “bodily injury”, “property 

damage”, “personal and advertising injury” and medical 

expenses arising out of: 

1. The ownership, maintenance or use of the premises 

shown in the Schedule and operations necessary or 

incidental to those premises; or 

2. The project shown in the Schedule. 

11. The endorsement’s Schedule does not list any projects. For “Premises,” it 

lists “26750 US Highway 19 North, Clearwater, FL, 33761.” 

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12. The Policy is subject to the Amended Conditions Endorsement, which 

states, in part: 

COMMERCIAL GENERAL LIABILITY COVERAGE PART 

SECTION IV – COMMERCIAL GENERAL LIABILITY 

CONDITIONS is amended to add the following conditions: 

A. There is no coverage under this policy, this insurance 

shall not apply, and we shall have no duty to defend or 

indemnify any insured for any claim or “suit” 

alleging “bodily injury,” “property damage,” or 

“personal and advertising injury” if, at any time and 

regardless of intent, you or any other insured 

provide incorrect, false, inaccurate or incomplete 

information in the Application for this policy. For 

purposes of this endorsement, the Application(s) 

includes, without limitation, any application forms and any 

other forms, documents, or information submitted to us in 

connection with or relating to issuance of this policy. For 

purposes of this endorsement, the Application(s) is part of 

this policy and is incorporated herein. 

13. Plymouth Plaza submitted its application for the Mt. Hawley policy on or 

about December 2, 2021. A copy of Plymouth Plaza’s application is attached hereto as 

Exhibit 2. 

14. In its application, Plymouth Plaza answered “no” to the following question: 

“Any uncorrected fire and/or safety code violations?” 

15. In its application, Plymouth Plaza answered “no” to the following question: 

“Any structural alterations contemplated?” 

16. On or about January 19, 2022, Mt. Hawley was placed on notice of a 

December 20, 2021 incident at 26750 U.S. Highway 19 North in which a portion of the 

parking garage on the premises collapsed. 

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17. Claims and suits have been asserted against Plymouth Plaza as a result of 

the December 20, 2021 incident, including those referenced hereinbelow. 

18. On or about February 4, 2022, a lawsuit was commenced captioned Alexis 

Klock, as Personal Representative of the Estate of Mitchel Klock, deceased, and the 

survivors, herself and Thomas Klock v. Plymouth Plaza, LLC and ZFC Real Estate, LLC 

(Florida Circuit Court, 15th Judicial Circuit, Palm Beach County, Case No. 50-2022-CA001551-XXXX-MB). A copy of the Klock complaint is attached hereto as Exhibit 3. 

19. The Klock complaint alleges, inter alia: 

At all times under the ownership and management of the 

Defendants, the Garage has been in a decrepit and 

hazardous state, with severe cracking in large sections of 

concrete and other structural deficiencies. These defects 

were particularly prevalent in the southwest section of the 

Garage. 

Tenants of Plymouth Plaza and others who frequently utilized 

the Garage frequently complained to Plymouth and/or ZFC 

management and employees about the deteriorating 

structural condition of the Garage. 

In fact, a complaint regarding the Garage was filed with the 

City of Clearwater (the “City”) in July 2021. In response to the 

complaint, a City official inspected the Garage and found 

various building code violations and safety concerns. 

As a result, the City created a Case Summary that noted the 

Garage was an “UNSAFE STRUCTURE” ... “DANGEROUS 

STRUCTURE OR PREMISES” and that a “partial or complete 

collapse is possible.” Additionally, the Case Summary 

requires Defendants to hire a licensed structural engineer to 

perform a safety inspection of the entire Garage and to submit 

a signed and sealed report with findings to the City’s building 

department. Moreover, the Case Summary explicitly stated 

that no repairs were to be done to the Garage until the City 

received the required safety inspection report. 

Notwithstanding the City’s findings and requirements, 

Defendants kept the hazardous and dangerous Garage open 

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for business and in December of 2021 decided to make 

certain cosmetic and other minor repairs to the Garage 

(hereinafter referred to as the “Garage Project”). Yet, upon 

information and belief, the safety inspection and report 

required by the City was never completed and/or approved by 

the City prior to the inception of the Defendants’ Garage 

Project. 

One of the worker’s on for the Garage Project was Mitchel 

Klock. However, unbeknownst to Mitchel Klock, the Garage 

was in violation of Florida building codes and industry 

standards, the City required a special inspection and proper 

report before any work was permitted on the Garage, and the 

Garage was in such a hazardous condition that a collapse was 

imminent. 

On the morning of December 20, 2021, Mitchel Klock was 

performing his duties around the southwest stairwell of the 

Garage. 

At approximately 8:00 AM, the southwest stairwell, without 

warning, completely collapsed and crushed Mitchel Klock to 

death. 

20. As against Plymouth Plaza, the Klock complaint asserts causes of action 

for negligence, strict liability, and intentional tort. 

21. On or about February 16, 2022, Tampa Bay Water made a claim against 

Plymouth Plaza for, inter alia, pro rata shares of parking garage costs arising out of lost 

use of parking spaces as a result of the December 20, 2021 incident. A copy of Tampa 

Bay Water’s February 16, 2022 claim letter is attached hereto as Exhibit 4. 

22. Following the December 20, 2021 incident, Mt. Hawley discovered that 

contrary to Plymouth Plaza’s December 15, 2021 application for insurance, the insured 

premises had received uncorrected safety code violations, including violations issued by 

the City of Clearwater Planning & Development Department (“City”) in response to a July 

1, 2021 complaint under code sections stating: 

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Section 108 UNSAFE STRUCTURES AND EQUIPMENT 

108.1.1 Unsafe Structures 

An unsafe structure is one that is found to be dangerous to 

the life, health, property or safety of the public or the 

occupants of a structure by not providing minimum 

safeguards to protect or warn occupants in the event of fire, 

or because such structure contains unsafe equipment or is so 

damaged, decayed, dilapidated, structurally unsafe or of such 

faulty construction or unstable foundation, that partial or 

complete collapse is possible. 

108.1.5 DANGEROUS STRUCTURE OR PREMISES 

Any portion of a building, structure or appurtenance that has 

been damaged by fire, earthquake, wind, flood, deterioration, 

neglect, abandonment, vandalism or by any other cause to 

such an extent it is likely to partially or completely collapse, or 

to become detached or dislodged. 

23. These violations include July 19, 2021 violations pursuant to sections 

108.1.1 and 108.1.5, as detailed in a Notice of Unsafe Building notice from the City to 

Plymouth Plaza, which states, in part: 

You are hereby notified that in accordance with the City of 

Clearwater Ordinances the above described property is 

declared unsafe and is creating a nuisance, and is therefore, 

subject to abatement, repair or demolition . . . 

It is in a deteriorated condition that creates a serious hazard 

to the health, safety and welfare of the public . . . 

You are hereby ordered to repair or demolish this structure 

within the limits of all building and zoning regulations . . . 

After receiving a complaint and inspecting the parking garage, 

various areas within the parking garage show signs of 

deterioration. A safety inspection performed by a licensed 

structural engineer will need to be obtained and the signed 

and sealed report with the findings will need to be submitted 

to our department. 

24. Plymouth Plaza also had at least four failed re-inspections/site visits by the 

City between July and November 2021. 

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25. A copy of the City’s Case Summary referencing these violations is attached 

hereto as Exhibit 5. 

26. A copy of the City’s July 19, 2021 Notice of Unsafe Building is attached 

hereto as Exhibit 6. 

27. These violations were undisclosed in Plymouth Plaza’s application for the 

Mt. Hawley policy notwithstanding the application question asking: “Any uncorrected fire 

and/or safety code violations?.” 

28. Plymouth contemplated but did not disclose structural alterations to the 

parking garage on the premises in its application for the Mt. Hawley policy notwithstanding 

the application question asking: “Any structural alterations contemplated?.” 

29. Plymouth Plaza’s application for the Mt. Hawley policy contained incorrect, 

false, inaccurate, and/or incomplete information. 

30. Pursuant to the Amended Conditions Endorsement and based on Plymouth 

Plaza’s provision of incorrect, false, inaccurate, and/or incomplete information in its 

application for the Mt. Hawley policy, Mt. Hawley has no obligation to defend or indemnify 

Plymouth Plaza in the Klock action, the Tampa Bay Water claim, or in connection with the 

December 20, 2021 incident. 

FIRST CAUSE OF ACTION 

31. Mt. Hawley refers to and reincorporates paragraphs 1 through 32 above as 

if fully set forth. 

32. The Mt. Hawley policy is subject to the Service of Suit and Conditions 

Endorsement, which states, in part: 

SERVICE OF SUIT AND CONDITIONS ENDORSEMENT 

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Conditions 

1. This Policy is amended to add the following Conditions: 

* * * 

BB. Choice of Law. All matters arising hereunder 

including questions related to the validity, interpretation, 

performance and enforcement of this Policy shall be 

determined in accordance with the law and practice of the 

State of New York (notwithstanding New York’s conflicts of 

law rules). 

* * * 

3. For purposes of this endorsement, the word “Insured” means 

you and any person or organization qualifying or claiming to 

qualify as such under Section II – Who Is An Insured and 

any person or organization qualifying or claiming to qualify as 

an additional insured. 

33. Pursuant to the Amended Conditions Endorsement and based on Plymouth 

Plaza’s provision of incorrect, false, inaccurate, and/or incomplete information in its 

application for the Mt. Hawley policy, Mt. Hawley has no obligation to defend or indemnify 

Plymouth Plaza in the Klock action, the Tampa Bay Water claim, or in connection with the 

December 20, 2021 incident. 

34. Mt. Hawley is entitled to and demands judgment declaring that has no 

obligation to defend or indemnify Plymouth Plaza in the Klock action, the Tampa Bay 

Water claim, or in connection with the December 20, 2021 incident. 

SECOND CAUSE OF ACTION 

35. Mt. Hawley refers to and reincorporates paragraphs 1 through 36 above as 

if fully set forth. 

36. The Mt. Hawley policy is subject to the Defense and Tender of Limits 

Endorsement, which states, in part: 

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The following is added to SECTION I - COVERAGES, 

COVERAGE A BODILY INJURY AND PROPERTY 

DAMAGE LIABILITY, 1. Insuring Agreement: 

* * * 

g. We shall have the right to examine and rely on 

information or documents extrinsic to the 

allegations in a pleading filed in a “suit” to 

determine our duty to defend any insured. 

h. If we defend any insured but later determine that 

we have no duty to defend, we will have the right 

to reimbursement from that insured for all 

defense costs and expenses, including 

attorney’s fees, we have incurred. 

i. Any insured will bear its own costs and legal 

fees in connection with prosecuting any suit or 

counterclaim brought by any insured against us 

or defending any suit or counterclaim brought by 

us against any insured. We shall have no 

obligation to reimburse any insured for such 

fees or costs. 

37. Mt. Hawley incurred costs for Plymouth Plaza’s defense in the Klock action, 

notwithstanding that Mt. Hawley had no duty to defend. 

38. Mt. Hawley incurred such costs with Plymouth Plaza’s knowledge, and 

having advised Plymouth Plaza that Mt. Hawley expressly reserves the right to seek 

reimbursement from Plymouth Plaza for defense costs incurred in connection with any 

uncovered or excluded claim. A copy of Mt. Hawley’s March 23, 2022 letter to Plymouth 

Plaza is attached hereto as Exhibit 7. 

39. In addition to judgment declaring that it has no obligation to defend or 

indemnify Plymouth Plaza in the Klock action, the Tampa Bay Water claim, or in 

connection with the December 20, 2021 incident, Mt. Hawley is entitled to judgment 

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against Plymouth Plaza for all costs incurred by Mt. Hawley for Plymouth Plaza’s defense 

in the Klock action, and interest thereon. 

THIRD CAUSE OF ACTION 

40. Mt. Hawley refers to and reincorporates paragraphs 1 through 41 above as 

if fully set forth. 

41. On May 20, 2022, the attorneys for plaintiffs in the Klock action served a 

time-limited demand that Mt. Hawley tender the $1 million per-occurrence limit of the Mt. 

Hawley policy in resolution of the Klock action as against Plymouth Plaza. A copy of the 

demand is attached hereto as Exhibit 8. 

42. Subject to and without waiver of its determination that it has no duty to 

defend or indemnify Plymouth Plaza in connection with the Klock claim, and pursuant to 

demand by Plymouth Plaza that Mt. Hawley tender its limits, and solely in the interest of 

extinguishing any claim in the Klock action for liability in excess of $1 million, Mt. Hawley 

paid $1 million to resolve the Klock action. Copies of documents evincing payment are 

attached hereto as Exhibit 9. 

43. Mt. Hawley made the indemnity payment of $1 million with Plymouth Plaza’s 

knowledge, and having advised Plymouth Plaza that Mt. Hawley expressly reserves the 

right to seek reimbursement from Plymouth Plaza for indemnity incurred in connection 

with any uncovered or excluded claim. A copy of Mt. Hawley’s March 23, 2022 letter to 

Plymouth Plaza is attached hereto as Exhibit 7. 

44. Pursuant to the Amended Conditions Endorsement and based on Plymouth 

Plaza’s provision of incorrect, false, inaccurate, and/or incomplete information in its 

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application for the Mt. Hawley policy, Mt. Hawley has no obligation to indemnify Plymouth 

Plaza in the Klock action. 

45. Mt. Hawley is entitled to and demands judgment against Plymouth Plaza in 

the amount of $1 million, and interest thereon. 

WHEREFORE, Mt. Hawley demands judgment: (1) declaring that it has no 

obligation to defend or indemnify Plymouth Plaza in the Klock action, the Tampa Bay 

Water claim, or in connection with the December 20, 2021 incident; (2) against Plymouth 

Plaza for all costs incurred by Mt. Hawley for Plymouth Plaza’s defense in the Klock 

action, and interest thereon; (3) against Plymouth Plaza for $1 million, and interest 

therein; and (4) granting such other and further relief in Mt. Hawley’s favor as the Court 

finds just and appropriate. 

Dated: December 13, 2022 Respectfully submitted, 

BUTLER WEIHMULLER KATZ CRAIG LLP 

/s/ Fay E. Ryan 

FAY E. RYAN, ESQ. 

Florida Bar No.: 0965944 

fryan@butler.legal

ADAM M. TOPEL, ESQ. 

Florida Bar No.: 113916 

atopel@butler.legal

Secondary: bmoore@butler.legal

400 North Ashley Drive, Suite 2300 

Tampa, Florida 33602 

Telephone: (813) 281-1900 

Facsimile: (813) 281-0900 

Counsel for Mt. Hawley Insurance Company 

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