# United States Court of Appeals

f or the Fifth Circuit

____________ No. 22

- 30041

____________ Great Lakes Insurance, S.E.,
Plaintiff

— Appellee ,

versus
Gray Group Investments, L.L.C.,
Defendant

— Appellant

.

______________________________ Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:20

- CV

- 2795

______________________________ Before Wiener , Higginson , and Wilson , Circuit Judges

. Cory T. Wilson, Circuit Judge : Hello, Dolly Well, hello, Dolly It’s so nice to have you back where you belong

. . . . 1

Great Lakes Insurance , S.E. insured the Hello Dolly VI , a boat owned by Gray Group Investments , L.L.C

. T he Hello Dolly sank in Pensacola ,

_____________________

1 From the Musical Production “ Hello Dolly! ” Music and lyrics by Jerry Herman , copyright 1963

. United States Court of Appeals Fifth Circuit 

### FILED August 1, 2023 Lyle W. Cayce Clerk Case: 22-30041 Document: 00516842419 Page: 1 Date Filed: 08/01/2023No. 22

- 30041

2 Florida, during a hurricane

. Gray Group filed a claim under the insurance
p olicy , Great Lakes denied coverage, and Great Lakes then sought a declaratory judgment that it properly did so

. Ironically, the question largely

turn ed on whether, contra her musical namesake, the Hello Dolly was “back where [ she ] belong[ed],” for purposes of coverage. The district court agreed with Great Lakes that she was not . We affirm

. I.

A. Hurricane Sally struck the Gulf Coast in September 2020. In its path lay the Hello Dolly VI ( hereafter, the V essel ) , which was moore d behind Gray Group ’s eponymous member Michael Gray’s house in Pensacola. The Vessel sustained damage during the storm and sank at its mooring. The Vessel was insured under a n insurance policy issued by Great Lakes. Great Lakes also insured several other watercraft within Gray Group’ s fleet under similar policies

. T hough the operative p olicy provided coverage for “named windstorms , ” Great Lakes denied coverage , asserting that Gray Group had breached several warranties. Specifically, Great Lakes faulted Gray Group for breaching the

“ hurricane protection plan ” (the HPP) that Gray Group had submitted in response to Great Lakes’ s “ hurricane questionnaire ” (the HQ)

. The HQ requested the Vessel’s location during hurricane season and asked a series of questions regarding Gray Group’s cont ingency plan s in the event of a hurricane. In the HPP, Gray Group stated that the Vessel would be located at the Orleans Marina in New Orleans , Louisiana, and detailed the protective measures Gray Group would take when a hurricane approached.

T he partie s contest whether the HPP was incorporated by reference into the insurance p olicy , and , if so, whether Gray Group breached the HPP. Case: 22-30041 Document: 00516842419 Page: 2 Date Filed: 08/01/2023No. 22

- 30041

3 Before laying anchor there, we briefly chart the policy’s incorporation clauses and the underlying documents at issue

. There are two incorporation clauses in the insurance p olicy

. The first provides that “[t]his insuring agreement incorporates in full [Gray Group’s ] application for insurance [.] ” The second states that “[t]his is a legally binding insurance document between [Gray Group] and [Great Lakes], incorporating in full the applicatio n form signed by [Gray Group].” Gray Group submitted various documentation to facilitate underwriting for the policy at issue

. Three such documents are particularly relevant : the “Application Form,” the HQ, and the HPP

. I n the Application Form, Gray Group represented that the “primary mooring location of [ the ] Vessel

. . . between July 1 st [and] Nov[.] 1 st ” would be the Orleans Marina. In the HPP, Gray Group again named the Orleans Marina in response to the HQ ’s request for th e “ marina or residence where [the] [V]essel [ would be ] located between 1 st July and 1 st November [

. ] ” Whether the policy’s incorporating clauses encompass th es e underwriting documents determine s the seaworthiness of Gray Group’s appeal.

B

. After denying coverage, Great Lakes sought a declaratory judgment that Gray Group breached the HPP by failing to evacuate the Hello Dolly VI to safe harbor, keep the Vessel fully manned, deploy the anchor , and moor the Vessel at the Orleans Marina. Gray Group countersued, contend ing that the HPP was not incorporated into the p olicy, and in any event, that Gray Group did not breach the HPP

. Gray Group moved for judgment on the pleadings. The district court denied the motion, ho lding that the phrase “application for insurance” was ambiguous because it could refer solely to the Application Form , or to a broader set of documents inclusive of the HQ and the HPP

. Therefore, the Case: 22-30041 Document: 00516842419 Page: 3 Date Filed: 08/01/2023No. 22

- 30041

4 district court found that evidence outside the pleading s was necessary to determine the meaning of “application for insurance

. ” The parties then filed cross

- motions for summary judgment. Great Lakes contended , inter alia , that regardless of whether the HPP was incorporated, the Application Form certainly was, and Gray Group misrepresented facts in the Application Form . Gray Group filed a motion to strike that argument. The district court granted Gray Group’s motion because “Great Lakes did not allege any misrepresentation by Gray Group in its complaint.” However, the district court agreed with Great Lakes on its other points and granted it summary judgment

. Specifically, the district court held that the phrase “application for insurance” was ambiguous b ut that extrinsic evidence showed that the parties intended “application for insurance” to
encompass the HPP. Continuing the analysis, the court concluded that Gray Group’s statement in the HPP that the Vessel was to be located at the Orleans Marina durin g hurricane season was also ambiguous . Again

r e sorting to extrinsic evidence , the court found that the HPP meant that the Vessel would be moored at the Orleans Marina for the majority of hurricane

season

. The court determined that the HPP’s “marina or re sidence” location constituted a warranty by Gray Group and found that the Vessel had

not in fact been moored at the Orleans Marina for the majority of hurricane

season

. Gray Group had thus breached its warranty, justifying Great Lakes’s den ial of coverage

. Gray Group timely appealed , challenging the district court’s denial of its motion for judgment on the pleadings as well as the court’s summary judgment for Great Lakes

. Case: 22-30041 Document: 00516842419 Page: 4 Date Filed: 08/01/2023No. 22

- 30041

5 II.

We revie w a district court’s ruling on a motion for judgment on the pleadings de novo

. Edionwe v. Bailey , 860 F.3d 287, 291 (5th Cir. 2017). We apply the same standard to a district court’s grant of summary judgment. Springboards to Educ., Inc. v. McAllen Inde p. Sch. Dist ., 62 F.4th 174 , 178 (5th Cir. 2023)

. Under New York law, 2 we review a district court’s interpretation of an insurance policy de novo

. High Point Design, LLC v. LM Ins. Corp ., 911 F.3d 89, 9 3 (2d Cir. 2018) (applying New York law)

. A. Gray Group ’s position is straightforward. It urges that “application for insurance” is unambiguous

— the clause refers only to the Application Form

— and Great Lakes did not plead a breach of the Application Form. Thus, no need for extrinsic evidence, and th e district court’s analysis and judgment run aground. Alternatively , Gray Group posits that if “application for insurance” is ambiguous, then the clause is insufficient to incorporate an external document as a matter of law due to that ambiguity.

Great Lakes takes a different tack, contend ing that Gray Group’s responses to the HQ, through the HPP , w ere incorporated into the insurance policy through the “application for insurance.” Per Great Lakes, “application for insurance” is ambiguous, but uncontrov erted extrinsic evidence establishe s that the parties intended the term to include the HPP.

So we must first consider (1) whether the term “application for insurance” is ambiguous, and, if so, (2) whether that ambiguity precludes incorporati ng by reference Gray Group’s responses to the HQ via its HPP

.

_____________________

2 The parties agree t hat New York law applies in this case

. Case: 22-30041 Document: 00516842419 Page: 5 Date Filed: 08/01/2023No. 22

- 30041

6 1. Under New York law, “an insurance contract is interpreted to give effect to the intent of the parties as expressed in the clear language of the contract.” Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co ., 472 F.3d 33, 42 (2d Cir. 2006 ) (citation and quotation marks omitted). Whether an insurance contract is ambiguous is a question of law. Id. A contract is ambiguous when its terms “ could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business. ” Id. (citation and quotation marks omitted).

T he Great Lakes ins urance p olicy at issue “incorporat[es] in full the application form signed by [Gray Group].” The p olicy also “incorporates in full [Gray Group ’ s] application for insurance [.] ” Gray Group contend s that both phrases refer to the same thing: the Applicatio n Form. Great Lakes counters that the phrase “application for insurance” plausibly include s more than just the Application Form

— like, say, the documents Gray Group submitted during underwriting (including the HPP)

— s uch that the p olicy ’s language is ambiguous. We agree that t he phrase “application for insurance” is ambiguous. The Application Form is clearly labeled as such , so the corresponding policy reference seems clear

. But the “full” “application for insurance , ” slightly different nomenclat ure, implies a broader set of documents , including the Application Form and th os e Gray Group submitted during underwriting

. Th e difference in verbiage is critical because under principles of contract interpretation, “[a] word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.” Landry ’

s, Inc. v

. Ins. Co. of the State of Pennsylvania , 4 F

. 4th 366, Case: 22-30041 Document: 00516842419 Page: 6 Date Filed: 08/01/2023No. 22

- 30041

7 370 (5th Cir. 2021) (quoting Antonin Scalia & Bryan Garner, Reading Law 170 (2012) ) ; see also Two Farms Inc. v. Greenwich Ins. Co ., 628 Fed. App’x 802, 805 (2d Cir. 2015) ( applying New York rule that “a word used by the parties in one sense will be given the same meaning throughout the contract in the absence of countervailing reasons”) ( citation and quotation marks omitted)). B ecause “application for insurance” “could suggest more than one meaning” to a “reasonably intelligent person ,” Parks Real Estate , 472 F.3d at 42, the term is ambiguous. So, we sail on to determine the effect of that ambiguity.

2

. The parties’ disagreement as to the effect of the ambiguity is premised

on compet ing understandings of New York’s incorporation by reference doctrine. Gray Group posits that an incorporating clause must clearl y identify an incorporated document ; therefore, if the clause is unclear , it

cannot effectuate a valid incorporat ion by reference

. Essentiall y, Gray Group contends that if there is any ambiguity in what i s incorporated, then the document in question is not

. Great Lakes counters th at the meaning of an ambiguous incorporating clause can be determined by extrinsic evidence , as with any other contractual provision . Therefore, a finding of ambiguity does not foreclose incorporation by reference

— it merely shifts the issue to the factfin der . We agree with Great Lakes. The Court of Appeals of New York has long recognized the concept of incorporation by reference. See In re Bd. of Com m ’ rs of Washington Park , 52 N.Y. 131, 134 (1873); see also Tonnele v. Hall , 4 N.Y. 140 (1850). Under New York law, a document is incorporated into a contract if “(1) it is clearly identified in the agreement, and (2) the contract contains language that clearly communicates that the purpose of the reference is to incorporate the referenced material into the contract, rather than merely to acknowledge that Case: 22-30041 Document: 00516842419 Page: 7 Date Filed: 08/01/2023No. 22

- 30041

8 the referenced material is relevant to the contract.” Matter of Linn Energy, L.L.C ., 927 F.3d 350, 353 (5th Cir. 2019) (citation and quotation marks omitted) (“New York courts use an objective standard, asking whether a reasonable person would understand the specific document to be incorporated by reference.”). “[T] he paper to be incorporated into a written instrument by reference must be so referred to and described in the ins trument that the paper may be identified beyond all reasonable doubt.” PaineWebber Inc. v. Bybyk , 81 F.3d 1193, 1201 (2d Cir. 1996) (emphasis omitted) (quoting C hiacchia v. Nat’l Westminster Bank USA , 124 A.D.2d 626,
628 ( N.Y. App. Div. 1986 ) ). “[I] t mus t b e clear that the parties to the agreement had knowledge of and assented to the incorporated terms. ” Id

. ( citation and quotation marks omitted). The doctrine “is grounded on the premise that the material to be incorporated is so well known to the

contr acting parties that a mere reference to it is sufficient.” Chiacchia , 124 A.D. 2d at 628 ; see also Orlander v. Staples, Inc ., 802 F.3d 289, 295 n.6 (2d Cir. 2015)

. For nearly as long as New York has recognized incorporation by reference , its Court of Appe als has allowed “[p]arol evidence

. . . to prove the identity of the paper [that the parties attempted to incorporate].” Bd. of Com m ’ rs of Washington Park , 52 N.Y. at 134. New York courts have held that , generally, an ambiguity as to the identity of the incorporated document creates a fact issue. See, e.g ., Maines Paper & Food Serv., Inc. v. Keystone Assoc ., 134 A.D. 3d 1340, 1342 ( N.Y. App. Div. 2015 ) (weighing the evidence to determine whether the purportedly incorporated document was sufficiently identified in t he executed contract) ; Kenner v. Avis Rent A Car Sys., Inc ., 254 A.D.2d 704 , 704 ( N.Y. App. Div. 1998 ) (holding that “[t]here is a triable issue of fact whether the oblique reference in the rental agreement to an otherwise unidentified ‘ rent al document jacket ’ meets th[e] exacting standard [ of incorporation by reference ] ”) ; Chiacchia , 124 A.D. 2d at 628 Case: 22-30041 Document: 00516842419 Page: 8 Date Filed: 08/01/2023No. 22

- 30041

9 (“Whether the paper encompassing the bank rules was referred to or described in the rental agreement such that it could be identified beyond all reasonable doubt constitutes a question of fact precluding summary judgment.”)

. But “[i] f the extrinsic evidence is ‘ so one

- sided that no reasonable person could decide the contrary, ’ the court may resolve the ambiguity as a matter o f law. ” Jefferson Block 24 Oil & Gas, L.L.C. v. Aspen Ins. UK Ltd ., 652 F.3d 584, 589 (5th Cir. 2011) (citation omitted) (applying New York law). Gray Group relies on Linn Energy for the proposition that if a purportedly incorporated document is not “cl early identified in the agreement , ” 927 F.3d at 353 , i.e., if the incorporating clause is unclear, then there is no valid incorporation

. True, “ the paper to be incorporated

. . . by reference must be

. . . identified beyond all reasonable doubt

. ” PaineWe bber , 81 F.3d at 1201 (quoting Chiacchi , 124 A.D. at 628 ) . B ut that does not alter the general rule that a court may examine extrinsic evidence to ascertain the meaning of a n ambiguous contract

. See Int’l Multifoods Corp. v. Commercial Union Ins. Co ., 309 F.3d 76, 83 (2d Cir. 2002) (“ If an ambiguity is found, the court may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract. ” (cleaned up) ) (applying New York law)

. Consistent with the New York cases discussed earlier, the general rule about consulting extrinsic evidence is as shipshape when ascertaining the meaning of an ambiguous incorporating clause as it is in any other context

. B

. Having surveyed the waterfront, we may cruis e through the remaining issues on appeal. Gray Group urges that the district court erred by (1) denying its motion for judgment on the pleadings; (2) finding that the
H PP was incorporated into the p olicy; and (3) concluding that the Vessel’s Case: 22-30041 Document: 00516842419 Page: 9 Date Filed: 08/01/2023No. 22

- 30041

10 “marina or residence” location provided by Gray Group in the HPP was a warranty that required the Vessel to moor at the Orleans Marina for the majority of hurricane season.

1.
We affirm the district court’s deni al of Gray Group’s motion for judgment on the pleadings. 3 “ We evaluate a motion under Rule 12(c) for judgment on the pleadings using the same standard as a motion to dismiss under Rule 12(b)(6) for failure to state a claim. ” Gentilello v. Rege , 627 F

. 3d 540, 543

– 44 (5th Cir 2010). We thus must determine “whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Id. (citation and quotation marks omitted). As discussed above, the policy language at issue is ambiguous. While that is not dispositive as to whether the underwriting documents in question were validly incorporat ed by reference , it does mean that t he scope of the policy ’s incorporating language turns on extrinsic evidence beyond the scope of the pleadings . Accordingly, the district court did not err in denying Gray Group’s Rule 12(c) motion.

2

. N ext , we consider whether Gray Group’s HPP, with its representation that the Vessel’s “marina or re sidence” location during

_____________________

3 Great Lakes argues that Gray Group failed to preserve its incorporation by reference argument in the district court. I t is axiomatic that “[w]e will generally not countenance arguments not raised before the district court , ” McManaway v. KBR, Inc ., 852 F.3d 444, 455 (5th Cir. 2017) , but Gray Group adequately raised the argument

. Gray Group urged in its motion for judgment on the pleadings that “[t]he policy does not incorporate, attach, reference or eve r ment ion the [HQ or the HPP] ,” and the district court noted that the incorporation argument was before it: “[Gray Group] moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), arguing that the pleadings establish that the [HQ

/ HPP ] was not a warranty because the agreement does not incorporate it

. . . .” Case: 22-30041 Document: 00516842419 Page: 10 Date Filed: 08/01/2023No. 22

- 30041

11 hurricane season was the Orleans Marina , was included in the p olicy ’s ambiguous incorporation of Gray Group’s “application for insurance

. ” To

re mind , the full clause reads : “ T his insuring agreement incorporates in full [Gray Group’s ] application for insurance [.]” Under New York law, the burden rests on the insurer to prove that its interpretation of an ambiguous policy provision is correct. Jefferson Block 24 Oil & Gas , 652 F.3d at 589. “[T]he court may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract [ and ]
may resolve the ambiguity as a matter of law” “[if] the extrinsic evidence is

so one

- sided that no reasonable person could decide the contrary [. ]” Id. (quotation marks and citation omitted).

The district court did not err in conclud ing that the HPP was incorporated into the p olicy. For starters, under a bolded header labeled “WARNING,” the HQ

, which prompted Gray Group’s submission of the HPP, a dvise d that “this declaration and warranty shall be incorporated in its entirety into any relevant policy of insurance.” Gray Group’s Fleet Risk Manager, Louis S. Crew, Jr., signed the HQ directly beneath th at warning.

T he parties’ prior course of dealing removes any lingering doubt that Gray Group’s “application for insurance” encompassed the HPP . I n 2017, Great Lakes ’ s underwriter notified Gray Group that a nother policy 4 then in forc e would expire in 15 days if Gray G roup did not provide additional requested documentation, including a hurricane protection plan as to the insured watercraft

. The underwriter followed up eight days later to remind Gray Group that the document remained outstanding and that failure to send it would void coverage

. This exchange repeated itself in 2019 , when Great

_____________________

4 This policy covered a different boat owned by Gray Group, but i t is undisputed that Gray Group’s other vessels were insured under polic ies materially identical to the one at issue h ere. Case: 22-30041 Document: 00516842419 Page: 11 Date Filed: 08/01/2023No. 22

- 30041

12 Lakes r emind ed Gray Group ’ s broker that the requested hurricane protection plan “forms part of the policy.” Additionally, Gray Group ’ s Crew testified in his deposition that h e “ und erst [ oo ] d that it [( the HPP)]

w ould be incorporated into the p olicy

. ” Against this backdrop, the district court did not err in holding that the extrinsic evidence wa s “so one

- sided that no reasonable person could decide” that the HPP was not incorporated into the p olicy. As it was properly incorporated, our next port

- of

- call is the interpretation of the HPP , and specifically the HPP ’s representation regarding the Ves sel’s “marina or residence” during hurricane season

.
3. In the HPP, Gray Group stated that the Orleans Marina was “the marina or residence where [the] [V]essel [would be] located between 1 st July and 1 st November

. ” The district court concluded that this statement i s ambiguous

. 5 T he court then relied on several email exchanges between the parties to ascertain its meaning. In 2019 , Great Lakes’ s broker asked Gray Group’s agent whether one of Gray Group’s boat s would be in the Bahamas or Florida during hurricane season and explained that the information was important because if so, the premium would increase to account for the greater risk. Later in 20 20 , Gray Group’s agent contacted Gr eat Lakes’ s agent to ask if the same boat could travel to Florida and the Bahamas once hurricane season began. Great Lakes’ s agent responded : [ The ] a pplication form showed that the[] mooring location during July to November would be Mississippi [,] and [t he underwriters] rated the risks as such. If [ a boat ] change[ d its]

_____________________

5 We discern no error in the district court’s determination that the HPP’s representation as to where the Vessel would be located is ambiguous. And Gray Group does not contend otherwise

. Case: 22-30041 Document: 00516842419 Page: 12 Date Filed: 08/01/2023No. 22

- 30041

13 mooring location to [the] Bahamas for the majority of hurricane season[,] then this must be re

- rated. We rate on the assumption of where the vessel will be for the majority of the

season. The agent also state d that “[i]f [ the boat ] will spend the majority of that season in Mississippi [,] then the premium can stay the same[.]” I n 2020, Great Lakes’ s underwriter again noted that “to amend the mooring location during the hurricane season” may require a premium increase.

Consider ing th is evidence, the distr ict court concluded that the HPP’s representation regarding the Vessel’s “marina or residence” location

meant “the place where the [V]essel [was] to be moored the majority of hurricane season.” W e agree with the district court that the evidence establishe s that the parties’ contractual intent was that the Vessel be moored at the Orleans Marina for , if not the majority, at least some portion of hurricane season

. W e acknowledge that th e email exchanges regarding the

“ mooring location ” pertain to the Applica tion Form, which requested the “primary mooring location” of the Vessel, and not the HQ or the HPP, which adduced “the marina or residence” where the Vessel would be “located” during hurricane season. Nevertheless, we conclude that the evidence also crystallizes the meaning of the HPP’s representation about where the Vessel would be “ locat ed.”

F irst, both the Application Form ’s request and the HPP substantively

center on the Vessel’s location during hurricane season. Whatever the distinction s between the “primary mooring location” and the “marina or residence” where the Vessel would be “located” during the season, Gray Group listed the Orleans Marina in response to both. At bottom, the extrinsic communications between the parties illuminate the parties’ intent as to both the Application Form and the HPP : Great Lakes requested that Gray Group provide the marina where the Vessel would be located for the same reason it Case: 22-30041 Document: 00516842419 Page: 13 Date Filed: 08/01/2023No. 22

- 30041

14 requested its primary mooring location, viz. , becaus e the insurer rated its policy premium “on the assumption of where the [V]essel [would] be for the majority of the season.” Cf. Chesapeake Energy Corp. v. Bank of New York Mellon Tr. Co., N.A ., 773 F.3d 110, 116 (2d Cir. 2014) (rejecting proposed interpre tation where “it cause[d] the word to carry different meanings in different iterations within the same contractual provision, indeed within the same sentence”). Inversely , Gray Group proffer s no evidence to su ggest a different interpretation of the HPP ’s representation. This dearth of proof to the contrary only buttresses the district court ’s interpretation of the HPP ’s language

. See Jefferson Block 24 Oil & Gas , 652 F.3d at 589 ; see also Fed. R. Civ. P . 56(c)(1)(A)

. Finally , and logically, the HPP ’s representation about the “marina or residence” where the Vessel would be “located” must mean something

. Whether the provision means that the Vessel was to be located at the Orleans Marina “the majority of hurricane season,” or for some lesser period, or for only intermittent docking , it is undisputed that the Vessel was never at the Orleans Marina during the 2020 hurricane season. Thus, regardless of the precise requirement that the HPP imposed, Gray Group did not meet it. All th at remains is to determine the effect of that lapse

.
4.
The district court concluded that the HPP ’s representation regarding the Vessel’s “marina or residence” location was a warranty such that Gray Group’s breach of it voided the p olicy both under New York law and the terms of the p olicy. We consider only the latter justification and easily conclude that the district court did not err in its analysis

. The p olicy provid es that: Case: 22-30041 Document: 00516842419 Page: 14 Date Filed: 08/01/2023No. 22

- 30041

15 Where a ny term herein is referred to as a ‘warranty’ or where any reference is made herein to the term ‘warranted,’ the term shall be deemed a warranty and regardless of whether the same expressly provides that any breach will void this insuring

a greement from inception, it is hereby agreed that any such breach will void this policy from inception.

T he HPP expressly identifies its contents, including the information in question , as warrant ies , providing that the insured “declare[s] that the particu lars and answers in t his f orm are correct and complete in every respect , ” and that “this declaration and warranty shall be incorporated in its entirety into any relevant policy of insurance.” Therefore, under the terms of the p olicy, as validly augmented by the HPP, Gray Group warranted that the Vessel would be “ located ” at the Orleans Marina during hurricane

season

. Gray Group’s breach of that warranty voided the p olicy ab initio , such that Great Lakes properly denied coverage.

III. The Hello Dolly VI never got “back where [she] belong[ed].” Gray Group’s representations to the contrary were validly incorporated into the policy as warranties , and Gray Group’s breach of its warranties justified Great Lakes’s denial of coverage when the Hello Dolly sank. Accordingly,

t he district court properly grant ed summary judgment for Great Lakes

. AFFIRMED

. Case: 22-30041 Document: 00516842419 Page: 15 Date Filed: 08/01/2023