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The Warwick Corp. v. Turetsky

Florida Court of Appeals, Fourth District

August 16, 2017

THE WARWICK CORPORATION, ALL SUNNY HOTELS, INC., and H.E.S. HOTELS CORP., Appellants,
v.
MATTHEW TURETSKY, ALLIANT INSURANCE SERVICES, INC., SWETT & CRAWFORD OF ILLINOIS, INC., CHUBB CUSTOM INSURANCE COMPANY, and LANDMARK AMERICAN INSURANCE COMPANY, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jack Tuter, Judge; L.T. Case No. 10-47258 CACE (07).

          Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Blaut Weiss Law Group, Plantation, for appellants.

          Lauren D. Levy of Levy Law Group, Coral Gables, for appellee Landmark American Insurance Company.

          LEVINE, J.

         Appellants 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.

         We 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.

         Appellants, 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, Florida.

         Warwick 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 "occurrence":
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 . . . .

         No "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.

         Landmark 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 ...


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