THE WARWICK CORPORATION, ALL SUNNY HOTELS, INC., and H.E.S. HOTELS CORP., Appellants,
MATTHEW TURETSKY, ALLIANT INSURANCE SERVICES, INC., SWETT & CRAWFORD OF ILLINOIS, INC., CHUBB CUSTOM INSURANCE COMPANY, and LANDMARK AMERICAN INSURANCE COMPANY, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack Tuter, Judge; L.T. Case No. 10-47258
D. Eaton of Podhurst Orseck, P.A., Miami, and Blaut Weiss Law
Group, Plantation, for appellants.
D. Levy of Levy Law Group, Coral Gables, for appellee
Landmark American Insurance Company.
have two insurance policies for their four hotels. The
primary policy limit is $5, 000, 000 per occurrence and the
excess policy limit is $21, 035, 000 per occurrence, with the
excess policy payout not to exceed the listed value of each
of the four insured hotels. Appellants argue the excess
policy is ambiguous because the "statement of values,
" which includes the listed insured value of each of the
four hotels, is not attached to the excess insurance policy
and is not titled "Statement of Values." Appellants
also claim the excess policy is "illusory" because
one of the four insured hotels is valued at $5, 000, 000,
which would equal the total value covered and payable under
the primary policy.
conclude that the policy is unambiguous because the
"Statement of Values" was incorporated by reference
in the excess policy and sufficiently authenticated. We also
conclude that the excess policy is not illusory because the
terms of the excess policy do not "completely
contradict" each other, and does not completely negate
the entirety of coverage it purportedly provides. We affirm
the trial court's summary judgment to that effect.
The Warwick Corporation, All Sunny Hotels, Inc., and H.E.S.
Hotels Corp. (collectively "Warwick"), had a
primary insurance policy with Chubb Insurance Company for $5,
000, 000, which covered three hotels in New Orleans,
Louisiana; Fort Lauderdale, Florida; and Deerfield Beach,
also had an excess insurance policy with Landmark American
Insurance Company. The excess policy insured the three hotels
referenced above as well as an additional hotel located in
St. Thomas in the Virgin Islands. The excess policy insured
the four properties for "$21, 035, 000 Per Occurrence
not to exceed values reported, " and covered "All
Risk Excluding Flood, Earth Movement and
Windstorm/Hail." The excess policy also contained the
following Schedule Limit of Liability endorsement:
It is understood and agreed that the following special terms
and conditions apply to this policy:
1. In the event of loss hereunder, liability of the Company
shall be limited to the least of the following in any one
b. 100% of the individually stated value for each scheduled
item of property insured at the location which had the loss
as shown on the latest Statement of Values on file with this
Company, less applicable deductibles and primary and
underlying excess limits. If no value is shown for a
scheduled item then there is no coverage for that item . . .
"statement of values" was attached to the Landmark
Policy. However, when Warwick's insurance agent marketed
the policy to insurers, the agent used a spreadsheet titled
"Property Spreadsheet" to represent the value of
the four properties and transmitted the spreadsheet to
wholesale brokers and Landmark. The agents, brokers, and
Landmark all agreed the spreadsheet was a statement of
values. The latest version of the alleged statement of values
on file with Landmark stated the total value of the New
Orleans hotel was $5, 000, 000; the value of the Fort
Lauderdale hotel was $7, 035, 000; the value of the Deerfield
Beach hotel was $2, 000, 000; and the value of the St. Thomas
hotel was $12, 000, 000. The total value of the properties
was $26, 035, 000. The excess coverage for the New Orleans
hotel was "shell coverage, " as requested by
Warwick, that covered only the building.
used the alleged statement of values to calculate the
Landmark Policy's premium. Landmark decided to charge the
minimum premium, $2, 625, to insure the New Orleans property
because triggering the policy would require that a single