UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:22-cv-62292-LEIBOWITZ/STRAUSS 

ACCLERANT SPECIALTY INSURANCE 

COMPANY,

Plaintiff, 

v.

RADFORD KLOTZ and 

J. TAYLOR KLOTZ, 

Defendants. 

______________________________________/ 

ORDER ADOPTING MAGISTRATE’S 

REPORT AND RECOMMENDATION

THIS MATTER was referred to United States Magistrate Judge Jared M. Strauss for a Report 

and Recommendation on Plaintiff Accelerant Specialty Insurance Company’s (“Plaintiff” or 

“Accelerant”) Motion for Summary Judgment (“Accelerant’s Motion”) [ECF No. 34]. [ECF No. 54]. 

Judge Strauss has issued his Report and Recommendation (the “R&R”), recommending that the Court 

grant Accelerant’s Motion [ECF No. 24]. [ECF No. 66]. Accelerant submitted a conditional objection 

to the R&R to preserve the alternate grounds for relief raised in Accelerant’s Motion.1 [ECF No. 70]. 

Defendant Radford Klotz (“Defendant” or “Mr. Klotz”) submitted objections to the R&R [ECF No. 

71], and Accelerant submitted a response to Mr. Klotz’s objections [ECF No. 75]. After careful review 

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 Mr. Klotz noted in his objections [ECF No. 71 n.3] that “[b]ecause the R&R expressly declined 

to reach the issue of whether Mr. Klotz violated the Policy’s survey compliance warranty, Mr. Klotz 

does not respond to Plaintiff’s Conditional Objection to Report and Recommendations on its Motion 

for Summary Judgment [ECF 70] and reserves the right to do so in the event this issue is addressed 

in a subsequent report and recommendations or by this Court.” 

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of the filings, the applicable law, and the record, the Court adopts the R&R [ECF No. 66] in its entirety

and writes below to expand upon its reasoning.

LEGAL STANDARDS

Adoption of a Report and Recommendation: “In order to challenge the findings and 

recommendations of the magistrate judge, a party must file written objections which shall specifically 

identify the portions of the proposed findings and recommendation to which objection is made and 

the specific basis for objection.” Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (cleaned 

up). The objections must also present “supporting legal authority.” S.D. Fla. L. Mag. J.R. 4(b). Once 

a district court receives “objections meeting the specificity requirement set out above,” it must “make 

a de novo determination of those portions of the report to which objection is made and may accept, 

reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” 

Macort, 208 F. App’x at 783–84 (cleaned up). To the extent a party fails to object to parts of the 

magistrate judge’s report, those portions are reviewed for clear error. Id. at 784 (cleaned up). The 

Court has reviewed de novo Accelerant and Mr. Klotz’s objections to the R&R and, for the reasons 

stated below, the Court finds the resolution of the issues as recommended by Judge Strauss to be 

sound and well-reasoned. The Court therefore adopts the R&R in its entirety and incorporates its 

findings herein.

Summary Judgment: A court “shall grant summary judgment if the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment “bears the initial burden to 

show the district court, by reference to materials on file, that there are no genuine issues of material 

fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Those materials may include, “depositions, 

documents, electronically stored information, affidavits or declarations, stipulations (including those 

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made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. 

R. Civ. P. 56(c)(1)(A). “Only when that burden has been met does the burden shift to the non-moving 

party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.”

Clark, 929 F.2d at 608.

If the moving party meets its burden, the non-moving party is then required “to go beyond 

the pleadings” and present competent evidence “showing that there is a genuine issue for trial.” 

Celotex, 477 U.S. at 324 (internal quotations omitted). Generally, “[t]he mere existence of a scintilla of 

evidence” supporting the non-movant’s case is insufficient to defeat a motion for summary judgment. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If, in response, the non-moving party does 

not sufficiently support an essential element of his case as to which he bears the burden of proof, 

summary judgment is appropriate. Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 840 (11th 

Cir. 2000). A fact is “material” for these purposes if it “might affect the outcome of the suit under 

the governing law.” Anderson, 477 U.S. at 248. A dispute of fact is “genuine” if, “the evidence is such 

that a reasonable jury could return a verdict for the nonmoving party.” Id. at 242. “In determining 

whether genuine issues of material fact exist, [the reviewing court] resolve[s] all ambiguities and draw[s] 

all justifiable inferences in favor of the non-moving party.” Rice-Lamar, 232 F.3d at 840 (citing

Anderson, 477 U.S. at 255). However, when the record “taken as a whole” could not support a 

reasonable finding for the non-movant, there is no “genuine issue for trial.” Matsushita Elec. Indus. Co., 

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Relatedly, and importantly in this case, Rule 56 

and the Local Rules of the Southern District of Florida set forth important requirements for parties 

to provide evidentiary support for assertions, controverting evidence to dispute assertions, and 

responses to an opponent’s additional facts—with consequences for failing to do so. See Fed. R. Civ. 

P. 56(c), (e); S.D. Fla. L.R. 56.1(c)–(d) (explaining effects and consequences of failing to support or 

controvert material facts).

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DISCUSSION

The Court has reviewed de novo Accelerant and Mr. Klotz’s objections to the R&R and will 

overrule both parties’ objections; however, the Court will expand on its reasoning for overruling the 

objections.

1. Mr. Klotz’s Objections

Mr. Klotz’s first objection is that the R&R ignores the application of New York Insurance 

Law § 3106 (“NYIL § 3106”). [ECF No. 71 at 1]. NYIL § 3106(b) provides that “[a] breach of 

warranty shall not avoid an insurance contract or defeat recovery thereunder unless such breach 

materially increases the risk of loss, damage or injury within the coverage of the contract.” Mr. Klotz 

argues that there is an exception to this general rule under NYIL § 3106(c) and that it only applies to 

“marine insurance related to perils of navigation, transit, or transportation.” [Id. at 3]. Mr. Klotz 

further argues that because Lucey Blue was not engaged in navigation, transit, or transportation at the 

time of the fire, the exception under NYIL § 3106(c) does not apply, and Plaintiff therefore must 

establish that any alleged breaches were material. [Id.]. Mr. Klotz made the same argument in his

Response in Opposition to Accelerant’s Motion [ECF No. 43 at 9–10], which Magistrate Judge Strauss 

already considered, so Mr. Klotz may not reargue it in its objections. See Marlite, Inc. v. Eckenrod, 2012 

WL 3614212, at *2 (S.D. Fla. Aug. 21, 2021) (“It is improper for an objecting party to ... submit [ ] 

papers to a district court which are nothing more than a rehashing of the same arguments and positions 

taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded 

a ‘second bite at the apple’ when they file objections to a R & R.”) (quoting Camardo v. Gen. Motors 

Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). Therefore, the Court 

overrules Mr. Klotz’s first objection to the R&R.

Mr. Klotz’s second objection is that he clarified his position regarding whether Lucey Blue 

was fitted with fire extinguishing equipment in his response to Plaintiff’s First Request for Admissions 

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to Defendants. [ECF No. 71 at 4]. Magistrate Judge Strauss determined that in his Answer, Defendant 

admitted that the vessel was fitted with fire extinguishing equipment at the time of the loss. [ECF 

No. 66 at 5]. Upon review of the Answer, the Court agrees. [See ECF No. 1 ¶ 24; ECF No. 10 ¶ 24]. 

Defendant is bound by that admission. Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1177 (11th Cir. 

2009) (quoting Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 

1983)) (alterations adopted) (“The general rule is that a party is bound by the admissions in his 

pleadings.”). To the extent that Mr. Klotz seeks leave to amend his Answer to clarify that he denies 

the Vessel was fitted with fire extinguishing equipment, that request is denied. The deadline to amend 

pleadings in this case was July 31, 2023. [ECF No. 16 at 1]. A party “seeking leave to amend ... after 

the deadline designated in a scheduling order must demonstrate ‘good cause’ under Fed. R. Civ. P. 

16(b).” S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009). “This good cause 

standard precludes modification unless the schedule[d] [deadline] cannot ‘be met despite the diligence 

of the party seeking the extension.’” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998). 

Defendant’s failure to seek leave to amend his Answer until the Magistrate Judge’s R&R on summary 

judgment a year after the deadline does not demonstrate good cause. Furthermore, to the extent that 

Mr. Klotz argues that in his response to Plaintiff’s First Request for Admissions to Defendants, he 

made clear that he did not admit that the vessel was fitted with fire extinguishing equipment, the Court 

disagrees. Even with that alleged clarification, the Court does not see how it would reach a contrary 

decision to the one by Magistrate Judge Strauss. Thus, Mr. Klotz’s request to amend his Answer is 

denied, and this objection is overruled.

2. Accelerant’s Conditional Objection

Because the Court is adopting the R&R in its entirety, the Court need not address Accelerant’s 

Conditional Objection.

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CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. Magistrate Judge Strauss’ Report and Recommendation [ECF No. 66] is AFFIRMED 

AND ADOPTED in its entirety. 

2. Accelerant’s Conditional Objection to the R&R [ECF No. 70] is OVERRULED.

3. Radford Klotz’s Objections to the R&R [ECF No. 71] are OVERRULED.

4. Accelerant’s Motion for Summary Judgment [ECF No. 34] is GRANTED.

5. The Clerk of Court is directed to CLOSE this case. All pending deadlines are 

TERMINATED, and any pending motions are DENIED as moot.

DONE AND ORDERED in the Southern District of Florida on October 18, 2024.

cc: counsel of record

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