Case 0:09-cv-60723-AJ Document 1 Entered on FLSD Docket 05/15/2009 I TVDNI? M ay 15, 2009 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION CASE NO. 09-60723-C iv-J ORDAN/MCALI L E Y RESIDENCES AT MIRAMAR CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Plaintiff, V. MT. HAWLEY INSURANCE COMPANY, a foreign corporation, WESTCHESTER SURPLUS LINES INSURANCE COMPANY, a foreign corporation, Defendants. COMPLAINT Plaintiff, EL-AD RESIDENCES AT MIRAMAR CONDOMINIUM ASSOCIATION, INC. ("RESIDENCES"), by and through its undersigned counsel and pursuant to the Federal Rules o f Civil Procedure, sues the Defendants, MT. HAWLEY INSURANCE COMPANY ("MT. HAWLEY") and WESTCHESTER SURPLUS LINES INSURANCE COMPANY ("WESTCHESTER") and states: GENERAL ALLEGATIONS 1. This is an action fo r declaratory judgment, including supplemental relief, and breach of contract (actual cash value), breach of contract (replacement cost value), and breach of th e implied warranty of good faith and fair dealing, seeking judgment fo r damages in excess of $75, 000.00 exclusive of interest, costs and attorneys' fees. KATZMAN GARFINKEL ROSENBAUM LLP " 250 Australian Avenue South, Suite 500 *West Palm Beach, FL 33401 Telephone (561) 653-2900 * Facsimile (561) 820-2542 1 of 109
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El-Ad Residences v. Mt. Hawley and Westchester
Complaint
Page 8
deductible to be applied for all buildings combined is 3% of the $2 million limit of
coverage under the Mt. Hawley Insurance Contract.
29. RESIDENCES, MT. HAWLEY and WESTCHESTER have present, actual,
adverse and antagonistic interests in the validity and enforceability of the Insurance
Contracts; the full amount of RESIDENCES' losses and damages from Hurricane
Wilma; the coverage provided by the Insurance Contracts; the validity and enforceability
of the co-insurance and separate hurricane deductible provision of the Mt. Hawley
Insurance Contract; and, the amount of the hurricane deductible to be applied in this
case .
30. RESIDENCES' adverse and antagonistic interests are before this Court by
proper process. The relief RESIDENCES seeks is not the mere rendering of legal
advice.
31. RESIDENCES has a bona fide, present and practical need for a
declaration of its
rightsunder the Insurance Contracts.
32. RESIDENCES has retained the undersigned attorneys to represent it in
this action and is required to pay them a reasonable fee for their services.
33. RESIDENCES is entitled to recover its reasonable attorneys' fees
pursuant to Section 627.428, Florida Statutes, which provides in pertinent part:
Upon the rendition of a judgment or decree by any of the
courts of this state against an insurer and in favor of any
named or omnibus insured or the named beneficiary under a
policy or contract executed by the insurer, the tr ial court or,
in the event of an appeal in which the insured o r beneficiaryprevails, the appellate court shall adjudge o r decree againstthe insurer and in favor of the insured o r beneficiary a
reasonable sum as fees or compensation for the insured's or
beneficiary's attorney prosecuting the suit in which the
recovery is had.
KATZMAN GARFINKEL ROSENBAUM LLP"
250 Australian Avenue South, Suite 500 *West Palm Beach, FL 33401
Telephone (561) 653-2900*
Facsimile (561) 820-2542
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El-Ad Residences v. Mt. Hawley and Westchester
ComplaintPage 28
Upon rendition of a judgment of decree by any of the courts
of this state against an insurer and in favor of any named or
omnibus insured or the named beneficiary under a policy or
contract executed by the insurer, the trial court or, in the
event of an appeal in which the insured or beneficiaryprevails, the appellate court shall adjudge or decree againstthe insurer and in favor of the inured beneficiary a
reasonable sum as fees or compensation for the insured's of
beneficiary's attorney prosecuting the suit in which the
recovery is had.
117. Alternatively, Section 626.911, Florida Statutes, provides in pertinent part:
In any action against an unauthorized foreign insurer, alien
insurer, or person representing or aiding such an insurer,
upona contract of insurance issued or delivered in this state
to a resident thereof or to a corporation authorized to do
business there, if the insurer or person representing or
aiding such insurer has failed for 30 days after demand priorto the commencement of the action to make payment in
accordance with the terms of the contract, the trial judgeshall allow to the plaintiff a reasonable attorney's fee or
compensation and include such fee or compensation in any
judgment that may be rendered in such action.
118. RESIDENCES is further entitled to recover prejudgment interest pursuant
to Section 627.70131, Florida Statutes
WHEREFORE, RESIDENCES demands judgment against WESTCHESTER for
compensatory damages and special damages, together with interest, costs and
attorneys' fees under 627.428, Florida Statutes, and such other relief as this Court
deems just, equitable and proper.
JURY DEMAND
RESIDENCES demands a trial by jury on all claims, defenses and issues so
triable in the entire case.
(Signature follows)
KATZMAN GARFINKEL ROSENBAUM LLP"
250 Australian Avenue South, Suite 500 *West Palm Beach, FL 33401
Telephone (561) 653-2900*
Facsimile (561) 820-2542
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Policy Number: MCP0140064Mt. Hawley Insurance Company
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DECLARATIONS - DEDUCTIBLE ADDENDUM
The following deductible wording is in addition to all other deductible wording found elsewhere in this policy. All otherdeductible wording found in and made a part of this policy also applies. Each claim for loss or damage will be adjustedseparately.
PERIL DEDUCTIBLE(S)
$10,000 Per Occurrence for All Covered Perils, except:3.00% of total values at risk Per Building (including time element if applicable) at the time of loss for Windstorm or Hall$50,000 Per Occurrence for Earthquake
ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED.
CPR 2218 (11/04)Page 1 of 1
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Mt. Hawley Insurance Company9025 North Lindbergh Drive, Peoria, IL 61615
SUPPLEMENTAL DECLARATIONS
Policy No: MCP0140064
Named Insured and Mailing Address
El Ad Residences At Miramar Lakes
Condominium Association, Inc.
7975 NW 154th Street Suite #200
Miami Lakes, FL 33016
If coverage for Certified Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, is provided under the
terms of your insurance policy, losses caused by acts of terrorism is partially reimbursed by the United States under a
formula whereby the United States pays 90% of covered terrorism losses exceeding a prescribed deductible to theinsurance company providing for the coverage.
Portion of premium attributable to coverage for Certified Acts of Terrorism $ 19.689
Portion of premium attributable to coverage for Certified Acts of Terrorism
(fire only), as required by law $ Not Applicable
With respect to any one or more "certified acts of terrorism" under the federal Terrorism Risk Insurance Act of 2002, we
will not pay any amounts for which we are not responsible under the terms of that Act (including subsequent action of
Congress pursuant to the Act) due to the application of any clause which results in a cap on our liability for paymentsfor terrorism losses.
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(7) Leased personal property for which you k. Property that is covered under another cover-
have a contractual responsibility to in- age form of this or any other policy in which it
sure, unless otherwise provided for under is more specifically described, except for the
Personal Property of Others. excess of the amount due (whether you can
collect on it or not) from that other insurance;
C. Personal
PropertyOf Others that is:
I, Retaining walls that ar e not part of a building;
2.
(1) In your care, custody or control; and
(2) Located in or on the building described in
the Declarations or in the open (or in a
vehicle) within 100 feet of the described
premises.
However, our payment for loss of or damageto personal property of others will only be for
the account of the owner of the property.
Property Not Covered
Covered Property does not include:
a. Accounts, bills, currency, food stamps or other
evidences of debt, money, notes or securities,
Lottery tickets held for sale are not securities;
b. Animals, unless owned by others and board-
ed by you, or if owned by you, only as "stock"
while inside of buildings;
c. Automobiles held for sale;
d. Bridges, roadways, walks, patios or other
paved surfaces;
e. Contraband, or property in the course of il-
legal transportation or trade;
f. The cost of excavations, grading, backfilling or
filling;
m. Underground pipes, flues or drains;
n. Electronic data, except as provided under
Additional Coverages Electronic Data.
Electronic data means information, facts or
computer programs stored as or on, created
or used on, or transmitted to or from computersoftware (including systems and applicationssoftware), on hard or floppy disks, CD-ROMs,tapes, drives, cells, data processing devices
or any other repositories of computer software
which ar e used with electronically controlled
equipment. The term computer programs, re -
ferred to in the foregoing description of elec-
tronic data, means a set of related electronic
instructions which direct the operations and
functions of a computer or device connected
to it, which enable the computer or device to
receive, process, store, retrieve or send data.
This Paragraph n., does not apply to your"stock" of prepackaged software.
o . The cost to replace or restore the information
on valuable papers and records, includingthose which exist as electronic data. Valuable
papers and records include but ar e not Hmited
to proprietary information, books of account,deeds, manuscripts, abstracts, drawings and
card index systems. Refer to the CoverageExtension for Valuable Papers And Records
(Other Than Electronic Data) for limited cov-
erage for valuable papers and records other
than those which exist as electronic data.
g. Foundations of buildings, structures, machin-p. Vehicles or self-propelled machines (including
ery or boilers if their foundations ar e below: aircraft or watercraft) that:
(1) The lowest basement floor; or (1) Are licensed for use on public roads; or
(2) The surface of the ground, if there is no (2) Are operated principally away from the
basement; described premises.
h. Land (including land on which the property is This paragraph does not apply to:
located), water, growing crops or lawns;
(a) Vehicles or self-propelled machinesI. Personal property while airborne or or autos you manufacture, process o
waterborne; warehouse;
j. Bulkheads, pilings, piers, wharves or docks; (b) Vehicles or self-propelled machinesother than autos, you hold for sale;
Case 0:09-cv-60723-AJ Document 1 Entered on FLSD Docket 05/15/2009 Page 39 of 59
the deductible. The sum of the loss pay- from loss or damage by a Covered Cause of
able and the debris removal expense Loss, we will pay for any direct physical loss
($49,500 + $10,000 = $59,500) is less or damage to that property:than the Limit of Insurance. Therefore the
full amount of debris removal expense is (1) While it is being moved or while tempo-
payable in accordance with the terms of rarily stored at another location; andParagraph (3).
(2) Only if the loss or damage occurs within
Example #2 30 days after the property is first moved.
Limit of Insurance $ 90 ,000c. Fire Department Service Charge
Amount of Deductible $ 600When the fire department is called to save or
protect Covered Property from a CoveredAmount of Loss $ 80,000
Cause of Loss, we will pay up to $1, 000 for
Amount of Loss Payable $ 79 ,500 your liability for fire department service
($80,000 - $500) charges:
Debris Removal Expense $ 30, 000 (1) Assumed by contract or agreement prior
to loss; orDebris Removal Expense Payable
(2) Required by local ordinance.
Basic Amount $ 10,500No Deductible applies to this Additional
Additional Amount $ 10,000 Coverage.
The basic amount payable for debris
removal expense under the terms of
Paragraph (3) is calculated as follows:
$80,000 ($79,500 + $500) x .25 =
d. Pollutant Clean Up And Removal
We will pay your expense to extract "pol-lutants" from land or water at the described
$20,000; capped at $10,600. The cap
applies because the sum of the losspremises if the discharge, dispersal, seepage,
migration, release or escape of the
payable ($79,500) and the basic amount "pollutants" is caused by or results from a
payablefor debris removal
expense Covered Cause of Loss that occurs during the($10,600) cannot exceed the Limit ofpolicy period. The expenses will be paid only if
Insurance ($90,000). they ar e reported to us in writing within 180
days .of the date on which the Covered CauseThe additional amount payable for debris
removal expense is provided in accor-of Loss occurs.
dance with the terms of Paragraph (4),because the debris removal expense
($30,000) exceeds 25% of the loss
This Additional Coverage does not apply to
costs to test for, monitor o r a ss es s the exis-
"pollutants."payable plus the deductible ($30,000 is
37.5% of $80,000), and because the sum
tence, concentration or effects of
But we will pay for testing which is performed
of the loss payable and debris removal in the course of extracting the "pollutants"
expense ($79,500 + $30,000 = $109,500)would exceed the Limit of Insurance
from the land or water.
($90,000). The additional amount of coy- The most we will pay under this Additional
ered debris removal expense is $10,000,the maximum payable under ParagraphCoverage for each described premises is$10,000 for the sum of all covered expenses
(4). Thus the total payable for debris re - arising out of Covered Causes of Loss occur-
moval expense in this example is r ing during each separate 12 month period of
$20,500; $9,500 of the debris removal ex -
pense is not covered.
this policy.
e. Increased Cost Of Construction
b. Preservation Of Property(1) This Additional Coverage applies only to
If it is necessary to move Covered Property buildings to which the Replacement Costfrom the described premises to preserve it Optional Coverage applies.
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C. Limits Of Insurance
The most we will pay for loss or damage in any on e
occurrence is the applicable Limit of Insurance shown
in the Declarations.
The most we will pay for loss or damage to outdoor
signs attached to buildings is $1,000 per sign in any
one occurrence.
The limits applicable to the Fire Department Service
Charge and Pollutant Clean Up and Removal Addi-
tional Coverages are in addition to the Limits of
Insurance.
Payments under the Preservation of Property Addi-
tional Coverage will not increase the applicable Limit
of Insurance.
D. Deductible
In any one occurrence of loss or damage (hereinafterreferred to as loss), we will first reduce the amount of
loss if required by the Coinsurance Condition or the
Agreed Value Optional Coverage. If the adjustedamount of loss is less than or equal to the Deductible,we will not pay for that loss. If the adjusted amount of
loss exceeds the Deductible, we will then subtract the
Deductible from the adjusted amount of loss, and will
pay the resulting amount or the Limit of Insurance,whichever is less.
When the occurrence involves loss to more than one
item of Covered Property and separate Limits of Insur-
ance apply, the losses will not be combined in deter-
mining application of the Deductible. But the Deducti-
ble will be applied only once per occurrence.
Example No. 1:
(This example assumes there is no coinsurance penalty.)
$ 60,100
250
$ 59 ,850 Loss Payable Bldg. 1
The Deductible applies once per occurrence and
therefore is not subtracted in
determiningthe amount
of loss payable for Bldg. 2. Loss payable for Bldg. 2 is
the Limit of Insurance of $80,000.
Total amount of loss payable: $59,850 + 80 ,000 =
$139,850.
Example No. 2:
(This example, too, assumes there is no coinsurance
penalty.)
The Deductible and Limits of Insurance ar e the same as
those in Example No. 1.
Loss to Bldg. 1: $ 70 ,000
(exceeds Limit of Insurance plus Deductible)
Loss to Bldg. 2: $ 90,000
(exceeds Limit of Insurance plus Deductible)
Loss Payable Bldg. 1: $ 60,000
(Limit of Insurance)
Loss Payable Bldg. 2: $ 80,000
(Limit of Insurance)
Total amount of loss payable: $140,000
E. Loss Conditions
The following conditions apply in addition to the Com-
mon Policy Conditions and the Commercial PropertyConditions.
1• Abandonment
There ca n be no abandonment of any property to
Deductible: $ 250US.
Limit of Insurance Bldg. 1: $ 60,000 2. Appraisal
Limit of Insurance Bldg. 2: $ 80,000 If we and you disagree on the value of the prop-
erty or the amount of loss, either may make writ-
Loss to Bldg. 1: $ 60 , 100 ten demand for an appraisal of the loss. In thisevent, each party will select a competent and im-
Loss to Bldg. 2: $ 90 ,000 partial appraiser. The two appraisers will select an
umpire. If they cannot agree, either may requesThe amount of loss to Bldg. 1 ($60,100) Is less than that selection be made by a judge of a cour
the sum ($60, 250) of the Limit of Insurance applicable having jurisdiction. The appraisers will state sep
to Bldg. 1 plus the Deductible. arately the value of the property and amount o
loss. If they fail to agree, they will submit thei
The Deductible will be subtracted from the amount of differences to the umpire. A decision agreed to byloss in calculating the loss payable for Bldg. 1: any two will be binding. Each party will:
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We may elect to defend you against suits (2) Buildings under construction or renovation
arising from claims of owners of property. We are not considered vacant.
will do this at ou r expense.b. Vacancy Provisions
g. We will pay for covered loss or damage within
30 days after we receive the sworn proof of If the building where loss or damage occurs
loss, if you have complied with all of the terms has been vacant for more than 60 consecu-
of this Coverage Part and: tive days before that loss or damage occurs:
(1) We have reached agreement with you on (1) We will not pay for any loss or damagethe amount of loss; or caused by any of the following even if they
are Covered Causes of Loss:
(2) An appraisal award has been made.
(a) Vandalism;5. Recovered Property
(b) Sprinkler leakage, unless you haveIf either you or we recover any property after loss
protected the system against freezing;settlement, that party must give the other promptnotice. At your option, the property will be re - (c) Building glass breakage;turned to you. You must then re tu rn to us theamount we paid to you for the property. We will
(d) Water damage;pay recovery expenses and the expenses to re -
pair the recovered property, subject to the Limit of(e) Theft; or
Insurance.
(f) Attempted theft.6. Vacancy
(2) With respect to Covered Causes of Lossa. Description Of Terms
other than those listed in b.(1)(a) through
(1) As used in this Vacancy Condition, theb.(1)(f) above, we will reduce the amount
we would otherwise pay for the loss orterm building and the term vacant have
the meanings set forth in (1)(a) and (1)(b)damage by 15%.
below:7. Valuation
(a) When this policy is issued to a tenant,
and with respect to that tenant's
interest in Covered Property, buildingmeans the unit or suite rented or
We will determine the value of Covered Propertyin the event of loss or damage as follows:
leased to the tenant. Such building isa. At actual cash value as of the time of loss or
vacant when it does no t contain damage, except as provided in b., c. , d. and
enough business personal property to
conduct customary operations.
e. below.
b. If the Limit of Insurance for Building satisfies
(b) When this policy is issued to the the Additional Condition, Coinsurance, and
owner or general lessee of a building,building means the entire building.
the cost to repair or replace the damagedbuilding property is $2,500 or less, we will pay
Such building is vacant unless at least the cost of building repairs or replacement.31%
ofits total
square footageis:
The cost of building repairs or replacement
(I) Rented to a lessee or sub-lessee does not include the increased cost attributa-
and used by the lessee or sub- ble to enforcement of any ordinance or law
lessee to conduct its customary regulating the construction, use or repair of
operations; and/or any property. However, the following propertywill be valued at the actual cash value even
(ii) Used by the building owner to when attached to the building:conduct customary operations.
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(2) Appliances for refrigerating, ventilating, (1) Multiply the value of Covered Propertycooking, dishwashing or laundering; or at the time of loss by the Coinsurance
percentage;(3) Outdoor equipment or furniture.
(2) Divide the Limit of Insurance of the prop-
c. "Stock" you have sold but not delivered at the erty by the figure determined in Step (1);selling price less discounts and expenses youotherwise would have had. (3) Multiply the total amount of loss, before
the application of any deductible, by thed. Glass at the cost of replacement with safety figure determined in Step (2); and
glazing material if required by law.
(4) Subtract the deductible from the figuree. Tenant's Improvements and Betterments at: determined in Step (3).
(1) Actual cash value of the lost or damaged We will pay the amount determined in Step (4 )property if you make repairs promptly. or the limit of insurance, whichever is less. For
the remainder, you will either have to rely on
(2) A proportion of your original cost if you do
not make repairs promptly. We will deter-other insurance or absorb the loss yourself.
mine the proportionate value as follows: Example No. 1 (Underinsurance):
(a) Mult ip ly the original cost by the num- When: The value of the property is $ 250,000ber of days from the loss or damageto the expiration of the lease; and
The Coinsurance percentagefor it is 80%
(b) Divide the amount determined in (a)above by the number of days from the
The Limit of InsuranceInstallation of improvements to the
for it is $ 100,000expiration of the lease.
The Deductible is $ 250if your lease contains a renewal option,the expiration of the renewal option period The amount of loss is $ 40,000will replace the expiration of the lease in
this procedure. Step (1): $250,000 x 80% = $200,000
(the minimum amount of insurance to(3) Nothing if others pay for repairs or
meet your Coinsurance requirements)replacement.
F. Additional Conditions Step (2): $100,000: $200,000 = .50
The following conditions apply in addition to the Corn- Step (3): $40,000 x .50 = $20,000
mon Policy Conditions and the Commercial PropertyConditions. Step (4): $20,000 $250 = $19,750
1. Coinsurance We will pay no more than $19,750. The remaining $20,250is not covered.
If a Coinsurance percentage is shown in the Dec-'
larations, the following condition applies. ExampleNo. 2
(Adequate Insurance):
a. We will not pay the full amount of any loss if When: The value of the property is $250,000
the value of Covered Property at the time of
loss times the Coinsurance percentage shown The Coinsurance percentagefor it in the Declarations is greater than the for i t is 80%Limit of Insurance for the property.
The Limit of Insurance
Instead, we will determine the most we will for it is $200,000
pay using the following steps:
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(1) 10 days before the effective date of can- the policy anniversary date, or any other
cellation if we cancel for your nonpayment policy change amending the Limit of In-
of premium; or surance, times
(2) 30 days before the effective date of can- (2) The percentage of annual increase shown
cellation if we cancel for any other reason. in the Declarations, expressed as a deci-mal (example: 8% is .08), times
g. If we elect not to renew this policy, we will givewritten notice to the mortgageholder at least (3) The number of days since the beginning10 days before the expiration date of this of the current policy year or the effective
policy, date of the most recent policy changeamending the Limit of Insurance, divided
G. Optional Coverages by 365.
If shown as applicable in the Declarations, the fol- Example:lowing Optional Coverages apply separately to each
item.
1. Agreed Value
a. The Additional Condition, Coinsurance, does
not apply to Covered Property to which this
Optional Coverage applies. We will pay no
more for loss of or damage to that propertythan the proportion that the Limit of Insurance
under this Coverage Part for the propertybears to the Agreed Value shown for it in the
Declarations.
b. If the expiration date for this Optional Cover-
age shown in the Declarations is not extend-
ed, the Additional Condition, Coinsurance, is
reinstated and this Optional Coverage
expires.
c. The terms of this Optional Coverage applyonly to loss or damage that occurs:
(1) On or after the effective date of this Op-tionai Coverage; and
If:
3.
The applicable Limit of
Insurance is $100,000
The annual percentageincrease is 8%
The number of dayssince the beginning of
the policy year (or last
policy change) is 146
The amount of increase
is $100,000 x .08 x 146
÷. 365 = $ 3,200
Replacement Cost
a. Replacement Cost (without deduction for de-
preciation) replaces Actual Cash Value in the
Loss Condition, Valuation, of this CoverageForm.
b. This Optional Coverage does not apply to:
(2) Before the Agreed Value expiration date (1 ) Personal property of others;
shown in the Declarations or the policyexpiration date, whichever occurs first. (2) Contents of a residence;
2. Inflation Guard (3) Works of art, antiques o r rare articles, in-
cluding etchings, pictures, statuary, mar-
e. The Limit of Insurance for property to which bles, bronzes, porcelainsand bric-a-brac;
this Optional Coverage applied will automati- or
cally increase by the annual percentageshown in the Declarations. (4) "Stock,
"
unless the Including "Stock"
option is shown in the Declarations.
b. The amount of increase will be:Under the terms of this Replacement Cost
(1) The Limit of Insurance that applied on the Optional Coverage, tenants' improvementsmost recent of the policy inception date, and betterments are not considered to be the
personal property of others.
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c. You may make a claim for loss or damage cost which would have been incurred if the
covered by this insurance on an actual cash building had been rebuilt at the originalvalue basis instead of on a replacement cost premises.basis. In the event you elect to have loss or
damage settled on an actual cash value basis, f. The cost of repair or replacement does not
you may still make a claim for the additional include the increased cost attributable to en -
coverage this Optional Coverage provides if forcement of any ordinance or law regulatingyou notify us of your intent to do so within 180 the construction, us e or repair of any property.days after the loss or damage.
4. Extens ion Of Replacement Cost To Personald. We will not pay on a replacement cost basis
Property Of Othersfor any loss or damage:
a. If the Replacement Cost Optional Coverage is(1) Until the lost or damaged property is
shown as applicable in the Declarations, thenactually repaired or replaced; and
this Extension may also be shown as ap-
plicable. If the Declarations show this Ex-(2) Unless the repairs or replacement are
tension as applicable, then Paragraph 3.b.(1)made as soon as reasonably possible of the Replacement Cost Optional Coverageafter the loss or damage.is deleted and all other provisions of the
With respect to tenants' improvements and Replacement Cost Optional Coverage apply
betterments, the following also apply:to replacement cost on personal property of
others.
(3) If the conditions in d.(1) and d.(2) above
are not met, the value of tenants ' im- b. With respect to replacement cost on the per-
provements and betterments will be de- sonal property of others, the following lirn-
termined as a proportion of your original Ration applies:
cost, as set forth in the Valuation Con-
dition of this Coverage Form; and If an item(s) of personal property of others is
subject to a written contract which governs
(4) We will not pay for loss or damage to your liability for loss or damage to that item(s),tenants' improvements and betterments if then valuation of that item(s) will be based on
others pay for repairs or replacement. the amount for which you are liable under
such contract, but not to exceed the lesser ofe. We will not pay more for loss or damage on a the replacement cost of the property or the
replacement cost basis than the least of (1), applicable Limit of Insurance.
(2) or (3), subject to f. below:
H. Definitions
(1) The Limit of Insurance applicable to the
lost or damaged property; 1. "Fungus" means any type or form of fungus,including mold or mildew, and any mycotoxins,
(2) The cost to replace the lost or damaged spores, scents or by-products produced or re -
property with other property: leased by fungi.
(a) Of comparable material and quality; 2. "Pollutants" means any solid, liquid, gaseous orand
thermal irritant or contaminant, including smoke,
(b) Used for the same purpose; orvapor, soot, fumes, acids, alkalis, chemicals and
waste. Waste includes materials to be recycled,
(3) The amount actua lly spent that isreconditioned or reclaimed.
nec-
essary to repair or replace the lost or
damaged property.3. "Stock" means merchandise held in storage or for
sale, raw materials and in-process or finished
If a building is rebuilt at a new premises, the goods, including supplies used in their packing o
cost described in e.(2) above is limited to the shipping.
Case 0:09-cv-60723-AJ Document 1 Entered on FLSD Docket 05/15/2009 Page 52 of 59
(3) Leased personal property for which you j. Bulkheads, pilings, piers, wharves or docks;have a contractual responsibility to in-
sure, unless otherwise provided for under k. Property that Is covered under this or anyPersonal Property of Others. other policy in which it is more specifically de-
scribed, except for the excess of the amount
But Your Business Personal Property does due (whether you ca n collect on it or not) fromnot include personal property owned only by a that other insurance;unitowner.
I. Retaining walls that are not part of a building;c. Personal Property Of Others that is:
m. Underground pipes, flues or drains;(1) In your care, custody or control; and
(2) Located in or on the building described in
the Declarations or in the open (or in a
vehicle) within 100 feet of the described
premises.
However, our payment for loss of or damageto personal property of others will only be for
the account of the owner of the property.
n. Electronic data, except as provided under Ad-
ditional Coverages Electronic Data. Elec-
tronic data means information, facts or corn-
puter programs stored as or on, created or
used on, or transmitted to or from computersoftware (including systems and applicationssoftware), on hard or floppy disks, CD-ROMs,tapes, drives, cells, data processing devices
or any other repositories of computer soft-
ware which ar e used with electronically con-
2. Property Not Covered
Covered Property does not include:
a. Accounts, bills, currency, food stamps or other
evidences of debt, money, notes or securities,
Lottery tickets held for sale are not securities;
b. Animals, unless owned by others and boarded
trolled equipment. The term computer pro-
grams, referred to in the foregoing descriptionof electronic data, means a set of related
electronic instructions which direct the opera-tions and functions of a computer or device
connected to it, which enable the computer or
device to receive, process, store, retrieve or
send data.
by you;
c. Automobiles held for sale;
d. Bridges, roadways, walks, patios or other
paved surfaces;
e. Contraband, or property in the course of il-
legal transportation or trade;
f. The cost of excavations, grading, back fillingor filling;
g. Foundations of buildings, structures, ma-
o.
p.
The cost to replace or restore the informationon valuable papers and records, includingthose which exist as electronic data. Valuable
papers and records include but ar e not limitedto proprietary information, books of account,deeds, manuscripts, abstracts, drawings and
card index systems. Refer to the CoverageExtension for Valuable Papers And Records
(Other Than Electronic Data) for limited cov-
erage for valuable papers and records other
than those which exist as electronic data.
Vehicles or self-propelled machines (includingaircraft or watercraft) that:
chinery or boilers if their foundations are
below: (1) Are licensed for us e on public roads; or
(1) The lowest basement floor; or (2) Are operated principally away from the
described premises.(2) The surface of the ground if there is no
basement. This paragraph does not apply to:
h. Land (including land on which the property Is (a) Vehicles or self-propelled machines
located), water, growing crops or lawns; or autos you manufacture or
warehouse;I. Personal property while airborne or
waterborne; (b) Vehicles or self-propelled machines,other than autos, you hold for sale;
Case 0:09-cv-60723-AJ Document 1 Entered on FLSD Docket 05/15/2009 Page 54 of 59
The debris removal expense is less than b. Preservation Of Property25% of the sum of the loss payable plusthe deductible. The sum of the loss If it is necessary for you to move Covered
payable and the debris removal expense Property from the described premises to pre-
($49,500 + $10,000 = $59,500) is less serve it from loss or damage by a Covered
than the Limit of Insurance. Therefore, the Cause of Loss, we will pay for any directfull amount of debris removal expense is physical loss or damage to that property:payable in accordance with the terms of
Paragraph (3). (1) While it is being moved or while tem-
porarily stored at another location; and
Example #2
(2) Only if the loss or damage occurs withinLimit of Insurance $ 90, 000 30 days after the property Is first moved.
Amount of Deductible $ 500c. Fire Department Service Charge
Amount of Loss $ 80, 000 When the fire department is called to sa ve o r
protect Covered Property from a CoveredAmount of Loss Payable $ 79, 500
Cause of Loss, we will pay up to $1, 000 for
($80,000$500) your liability for fire department service
charges:Debris Removal Expense $ 30 ,000
(1) Assumed by contract or agreement priorDebris Removal Expense to loss; orPayable
Basic Amount $ 10,500
Additional Amount $ 10,000
(2) Required by local ordinance.
No Deductible applies to this Additional
The basic amount payable for debris re -
moval expense under the terms of Para-
graph (3) is calculated as follows: $80,000 d.
Coverage.
Pollutant Clean Up And Removal
($79,500 + $500) x .25 = $20,000; cappedat
$10,500. The cap
appliesbecause the We will pay your expense to extract "pol-
sum of the loss payable ($79,500) and the lutants" from land or water a t the described
basic amount payable for debris removal
expense ($10,500) cannot exceed the
premises if the discharge, dispersal, seepage,
migration, release or escape of the "pot-Limit of Insurance ($90,000). lutants" is caused by or results from a Cov-
ered Cause of Loss that occurs during the
The additional amount payable for debris policy period. The expenses will be paid onlyremoval expense is provided in accor- if they ar e reported to us in writing within 180
dance with the terms of Paragraph (4),because the debris removal expense
days of the date on which the Covered Cause
of Loss occurs.
($30,000) exceeds 25% of the loss
payable plus the deductible ($30,000 is This Additional Coverage does not apply to
37.5% of $80,000), and because the sum costs to test for, monitor or assess the axis-
of the loss payable and debris removal tence, concentration or effects of "pollutants."expense ($79,500 + $30,000 = $109,500) But we will pay for testing which is performedwould exceed the Limit of Insurance in the course of extracting the "pollutants"($90,000). The additional amount of coy-
ered debris removal expense is $10,000,the maximum payable under Paragraph
from the land or water.
The most we will pay under this Additional
(4). Thus the total payable for debris re - Coverage for each described premises ismoval expense in this example is $10,000 for the sum of all covered expenses$20,500; $9, 500 of the debris removal ex - arising out of Covered Causes of Loss occur-
pense is not covered, ring during each separate 12 month period of
Case 0:09-cv-60723-AJ Document 1 Entered on FLSD Docket 05/15/2009 Page 56 of 59
(9) The costs addressed in the Loss Pay- on a computer system (including
ment and Valuation Conditions, and the electronic data) or a network to which
Replacement Cost Optional Coverage, in it is connected, designed to damagethis Coverage Form, do not include the or destroy any part of the system or
increased cost attributable to enforce- disrupt its normal operation. But there
ment of an ordinance or law. The amount is no coverage for loss or damagepayable under this Additional Coverage,as stated in e.(6) of this Additional Coy-
caused by or resulting from manipula-tibn of a computer system (including
erage, is not subject to such limitation, electronic data) by any employee, in-
cluding a temporary or leased em-
f. Electronic Data
(1) Under this Additional Coverage, elec-
ployee, or by an entity retained by youor for you to inspect, design, install,
modify, maintain, repair or replacetronic data has the meaning described
under Property Not Covered Electronic
that system.
Data. (4) The most we will pay under this Additional
Coverage Electronic Data Is $2,500 for
(2) Subject to the provisions of this Additional all loss or damage sustained in any one
Coverage, we will pay for the cost to re- policy year, regardless of the number of
place or restore electronic data which has occurrences of loss or damage or thebeen destroyed or corrupted by a Cov- number of premises, locations or corn-
ered Cause of Loss. To the extent thatputer systems involved. if loss payment
electronic data is not replaced or re -on the first occurrence does not exhaust
stored, the loss will be valued at the cost this amount, then the balance is availableof replacement of the media on which the for subsequent loss or damage sustainedelectronic data was stored, with blank in but not after that policy year. Withmedia of substantially identical type. respect to an occurrence which begins in
one policy year and continues or results in
(3) The Covered Causes of Loss applicable additional loss or damage in a sub-to Your Business Personal Property apply sequent policy year(s), all loss or damageto this Additional Coverage Electronic
is deemed to be sustained in the policyData, subject to the following:
Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 8 of 50
electronic instructions which direct the opera- (a) Used in the construction, alterations
tions and functions of a computer or device or additions; or
connected to it, which enable the computer ordevice to receive, process, store, retrieve or (b) Incidental to the occupancy of new
send data. buildings.
4. Additional Coverages if such direct physical loss or damage delaysthe start of "operations,
"
the "period of restor-
e. Expenses To Reduce Loss ation" will begin on the date "operations"would have begun if the direct physical loss or
In the event of a covered loss of Business In- damage had not occurred.
come, we will pay necessary expenses you
incur, except the cost of extinguishing a fire, d. Extended Business Income
to avoid further loss of Business Income. The
total of ou r payment for Business Income loss (1) Business Income Other Than "Rental
and Expenses to Reduce Loss will not be Value"
more than the Business Income loss that
would have been payable under this Cover- If the necessary "suspension" of your "op-
age Form (after application of any Coinsur- erations" produces a Business Income
ance
penalty)if the
Expensesto Reduce Loss loss payable under this policy, we will pay
had not been incurred. This coverage does for the actual loss of Business Income you
not increase the Limit of Insurance. incur during the period that:
The Coinsurance condition does not apply (a) Begins on the date property (except
specifically to such Expenses to Reduce Loss, "finished stock") is actually repaired,but it is used as described above to de- rebuilt or replaced and "operations"termine the total amount payable. are resumed; and
b. Civil Authority (b) Ends on the earlier of:
We will pay for the actual loss of Business In- (I) The date you could restore your
come you sustain caused by action of civil au- "operations,"
with reasonable
thority that prohibits access to the described speed, to the level which would
premises due to direct physical loss of or generate the business income
damage to property, other than at the de- amount that would have existed ifscribed premises, caused by or resulting from no direct physical loss or damage
any Covered Cause of Loss, This coverage had occurred; or
begins 72 hours after the time of that action,and wil l apply for a period of up to three con-
_
(ii) 30 consecutive days after the
secutive weeks from the date on which the
coverage begins.
date determined in (1)(a) above.
However, Extended Business Income
c. Alterations And New Buildings does not apply to loss of Business In-
come incurred as a result of unfavorable
We will pay for the actual loss of Business In- business conditions caused by the impact
come you sustain due to direct physical loss of the Covered Cause of Loss in the
or damage at the described premises caused area where the described premises are
by or resulting from any Covered Cause of located.
Loss to:Loss of Business Income must be caused
(1) New buildings or structures, whether
complete or under construction;by direct physical loss or damage at the
described premises caused by or result-
ing from any Covered Cause of Loss.
(2) Alterations or additions to existing build-
ings or structures; and (2) "Rental Value"
(3) Machinery, equipment, supplies or build- If the necessary "suspension" of your "op-
ing materials located on or within 100 feet erations" produces a "Rental Value" loss
of the described premises and: payable under this policy, we will pay for
Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 9 of 50
the actual loss of 'Rental Value" you incur
during the period that:
(a) Begins on the date property is actual-
ly repaired, rebuilt or replaced and
tenantability is restored; and
(b) Ends on the earlier of:
in that form, and Collapse as set forth
in that form.
(b) If the Causes Of Loss Broad Form
applies, coverage under this Addition-
al CoverageInterruption
Of Com-
puter Operations includes Collapse asset forth in that form.
(I) The date you could restore tenant
occupancy, with reasonable
(c) If the Causes Of Loss Form is en -
dorsed to add a Covered Cause of
speed, to the level which would Loss, the additional Covered Cause
generate the "Rental Value" that of Loss does not apply to the cover-
would have existed if no direct age provided under this Additional
physical loss or damage had
occurred; or
Coverage Interruption Of ComputerOperations.
(ii) 30 consecutive days after the (d) The Covered Causes of Loss include
date determined in (2)(a) above.a virus, harmful code or similar in-
struction introduced into or enacted
However, Extended Business Income on a computer system (includingdoes not apply to loss of "Rental Value"
incurred as a result of unfavorable busi-
ness conditions caused by the impact of
electronic data) or a network to which
it is connected, designed to damageor destroy any part of the system or
disrupt its normal operation. But therethe Covered Cause of Loss in the area
is no coverage for an interruption re -
where the described premises arelated to manipulation of a computer
located.system (including electronic data) byany employee, including a temporary
Loss of "Rental Value" must be caused by or leased employee, or by an entitydirect physical loss or damage at the de-
scribed premises caused by or resultingretained by you or for you to inspect,design, install, maintain, repair or re -
from any Covered Cause of Loss.place that system.
e. Interruption Of Computer Operations (4) The most we will pay under this Additional
Coverage Interruption Of Computer Op-(I) Under this Additional Coverage, elec- erations is $2, 500 for all loss sustained in
tronic data has the meaning describedany one policy year, regardless of the
under Additional Limitation Interruption number of interruptions or the number ofOf Computer Operations, premises, locations or computer systems
involved. If loss payment relating to the
(2) Subject to all provisions of this Additional first interruption does not exhaust this
Coverage, you may extend the insurance amount, then the balance is available for
that applies to Business Income to apply loss sustained as a result of subsequentto a "suspension" of "operations" caused interruptions in that policy year. A balance
by an interruption in computer operations remaining at the end of a policy year does
due to destruction or corruption of elec- not increase the amount of insurance in
tronic data due to a Covered Cause of the next policy year. With respect to anyLoss. Interruption which begins in one policy
yearand continues or results in additional
(3) With respect to the coverage provided loss in a subsequent policy year(s), all
under this Additional Coverage, the Cov- loss is deemed to be sustained in the pol-ered Causes of Loss are subject to the
following:icy year in which the interruption began.
(5) This Additional Coverage Interruption in
(a ) If the Causes Of Loss Special Form Computer Operations does not apply to
applies, coverage under this Addition- loss sustained after the end of the "periodal Coverage Interruption Of Corn- of restoration,
"
even if the amount of
puter Operations is limited to the insurance stated in (4) above has not
"specified causes of loss" as defined been exhausted.
Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 20 of 50
(1) The building or structure first sustains (2) To Business Income coverage or to Extra
damage by a Covered Cause of Loss to Expense coverage.
its roof or walls through which the rain,
snow, sleet, ice, sand or dust enters; or 3. The special l imit shown for each category, a.
through d. , is the total limit for loss of or damage
(2) The loss or damage is caused by or re - to all property in that category. The special limit
sults from thawing of snow, sleet or ice on applies to any on e occurrence of theft, regardlessthe building or structure. of the types or number of articles that are lost or
damaged in that occurrence. The special limits
d. Building materials and supplies not attachedare:
as part of the building or structure, caused byor resulting from theft.
a. $2, 500 for furs, fur garments and garmentstrimmed with fur.
However, this limitation does not apply to:
(1) Building materials and supplies held for b. $2,500 for jewelry, watches, watch move-
sale by you, unless they are insured un - ments, jewels, pearls, precious and semi-
der the Builders Risk Coverage Form; or precious stones, bullion, gold, silver, platinumand other precious alloys or metals. This limit
(2) Business Income coverage or Extra Ex- does not apply to jewelry and watches worth
pense coverage. $100 or less per item.
2.
e. Property that is missing, where the only evi-
dence of the loss or damage is a shortagedisclosed on taking inventory, or other in-
stances where there is no physical evidence
to show what happened to the property.
f. Property that has been transferred to a per-
so n or to a place outside the described prem-
ises on the basis of unauthorized instructions.
We will not pay for loss of or damage to the
following types of property unless caused by the
"specified causes of loss" or building glassbreakage:
e. Animals, and then only if they are killed or
their destruction is made necessary.
b. Fragile articles such as statuary, marbles,chinaware and porcelains, if broken. This re -
striction does not apply to:
(1) Glass; or
4.
c. $2,500 for patterns, dies, molds and forms.
d. $250 for stamps, tickets, including lottery tick-
ets held for sale, and letters of credit.
These special limits are part of, not in addition to,
the Limit of Insurance applicable to the Covered
Property.
This limitation, C.3., does not apply to Business
Income coverage or to Extra Expense coverage.
We will not pay the cost to repair any defect to a
system or appliance from which water, other lig-uid, powder or molten material escapes. But
we will pay the cost to repair or replace dam-
aged parts of fire extinguishing equipment If the
damage:
a. Results in discharge of any substance from an
automatic fire protection system; or
b. Is directly caused by freezing.
(2) Containers of property held for sale.
However, this limitation does not apply to Bus-c. Builders' machinery, tools and equipment iness Income coverage or to Extra Expense
owned by you or entrusted to you, provided coverage.such property is Covered Property.
However, this limitation does not apply:D. Additional Coverage Collapse
(1) If the property is located on or within 100The term Covered Cause of Loss includes the Addi-
feet of the described premises, unless thetional Coverage Collapse as described and limited in
5. This Additional Coverage, Collapse, will not in-
4. The coverage provided under this Limited Cover-
age does not increase the applicable Limit of In-
surance on any Covered Property. If a particular
occurrence results in loss or damage by "fungus,"
wet or dry rot or bacteria, and other loss or dam-
crease the Limits of Insurance provided in this age, we will not pay more, for the total of all loss
Coverage Part. or damage, than the applicable Limit of Insurance
E. Additional Coverage Limited Coverage For "Fun-
gus,"
Wet Rot, Dry Rot And Bacteria
on the affected Covered Property.
If there is covered loss or damage to Covered
1. The coverage described in E.2. and E.6. only Property, not caused by "fungus," wet or dry rot or
limited by the
applies when the "fungus,"
wet or dry rot or
bacteria is the result of one or more of the
bacteria, loss payment will not be
terms of this Limited Coverage, except to the ex-
following causes that occurs during the policy pe- tent that "fungus,"
wet or dry rot or bacteria
riod and only if all reasonable means were used to causes an increase in the loss. Any such increase
save and preserve the property from further in the loss will be subject to the terms of this Lim-
damage at the time of and after that occurrence. Held Coverage.
2.
3.
a.
A "specifiedcause of loss" other than fire or
lightning; or
b. Flood, if the Flood Coverage Endorsement
applies to the affected premises.
We will pay for loss or damage by "fungus,"
wet or
dry rot or bacteria. As used in this Limited Cover-
age, the term loss or damage means:
a. Direct physical loss or damage to Covered
Property caused by 'fungus,"
wet or dry rot or
bacteria, including the cost of removal of the
"fungus,"
wet or dry rot or bacteria;
b. The cost to tear out and replace any partof
the building or other property as needed to
gain access to the "fungus,"
wet or dry rot or
bacteria; and
c. The cost of testing performed after removal,
repair, replacement or restoration of the dam-
aged property is completed, provided there is
a reason to believe that "fungus,"
wet or dryrot or bacteria are present.
The coverage described under E.2. of this Limited
Coverage is limited to $15,000. Regardless of the
number of claims, this limit is the most we will pay
for the total of all loss or damage arising out of all
occurrences of "specified causes of loss" (otherthan fire or lightning) and Flood which take placein a 12-month period (starting with the beginningof the present annual policy period). With respectto a particular occurrence of loss which results in
"fungus,"
wet or dry rot or bacteria, we will not pay
more than a total of $15,000 even if the "fungus,"
wet or dry rot or bacteria continues to be presentor active, or recurs, in a later policy period,
5. The terms of this Limited Coverage donot in-
crease or reduce the coverage provided under
Paragraph F2. (Water Damage, Other Liquids,Powder Or Molten Material Damage) of this
Causes Of Loss Form or under the Additional
Coverage Collapse.
6. The following, 6.a. or 6.b., applies only if Business
Income and/or Extra Expense coverage applies to
the described premises and only if the "suspen-sion" of "operations" satisfies all terms and condi-
tions of the applicable Business Income and/or
Extra Expense coverage form.
a. If the loss which resulted in "fungus, " wet or
Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 36 of 50
Policy Number: MCP0140064Mt. Hawley Insurance Company
EXCLUSION OF CERTAIN COMPUTER RELATED LOSSES -- "A "
THIS ENDORSEMENTMODIFIES INSURANCE PROVIDED. PLEASE READ IT CAREFULLY.
A. We will not pay for loss or damage, whether direct or indirect, to "electronic data processing equipment":
1. Arising from "computer virus" and/or "computer hacking";
2. Caused by the transfer or delivery of covered property from a covered location or your computer to a person or
place outside of a covered location on the basis of unauthorized or fraudulent instructions, including but not lim-
ited to instructions transmitted by a computer, whether or not owned by you, or via any telecommunications trans-
mission method;
3. Arising from costs to research, replace or restore the information contained on electronic or magnetic media;
4. Arising from electrical disturbance including electrical or magnetic damage, disturbance of electronic recordings, or
erasure of electronic recordings;
5. Arising from power supply disturbance including interruption of power supply, power surge, blackout, or brownout;
6. During the period when your business is interrupted as a result of loss to your Web Site operation whether or not
maintained or operated by you and whether or not located at the described premises;
7. Arising from the failure, malfunction or inadequacy of:
a. Such "electronic data processing equipment" whether belonging to you or to others;
b. Any products, and any services, data or functions that directly or indirectly us e or rely on, in any manner, such
"electronic data processing equipment" due to the inability to correctiy recognize, process, distinguish,interpret, or accept one or more dates or times. An example is the inability of computer software to recognize
the year 2000; and/or
8. Arising from any advice, consultation, design, evaluation, inspection, installation, maintenance, repair, replace-
ment or supervision provided or done by you or for you to determine, rectify or test for, any potential or actual
problems described in this endorsement.
Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any se -
quence to the loss or damage.
B. However, if direct physical loss or damage not otherwise excluded by this policy results, then subject to all of its terms
and conditions, we will only pay for the resulting direct physical loss or damage.
C. Claims for resulting physical loss or damage at multiple locations will constitute a separate occurrence at each
location.
D. DEFINITIONS
1. "Computer virus" means the introduction into a computer of any self-replicating electronic data processing code o
other code that is intended to:
a. Result in the deletion, destruction, generation, or modification of data;
CPR 2187 (10/01)Page 1 of
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Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 38 of 50
Policy Number: MCP0140064 Mt. Hawley Insurance Company
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CERTIFIED TERRORISM LOSS
1. The following definitions ar e made a part of this policy.
A. "Certified act of terrorism" means an act that is certified by the Secretary of the Treasury, in concurrence with the
Secretary of State and the Attorney General of the United States:
1. To be an act of terrorism;
2. To be a violent act or an act that is dangerous to human life, property, or infrastructure;
3. To have resulted in damage:
a. Within the United States; or
b. To an air carrier (as defined in section 40102 of title 49, United States Code); to a United States flag ves-
sel (or a vessel based principally in the United States, on which United States income tax is paid and
whose insurance coverage is subject to regulation in the United States), regardless of where the loss oc-
curs; or at the premises of any United States mission; and
4. To have been committed by an individual or individuals acting on behalf of any foreign person or foreign inter-
est, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect
the conduct of the United States Government by coercion.
B. "Certified terrorism loss" means loss that results from a "certified act of terrorism."
2. The "terms" of any terrorism exclusion or limitation in coverage that is part of or that is attached to this policy are
amended by the following provision:
This exclusion or limitation In coverage does not apply to "certified terrorism loss."
3. If the Secretary of the Treasury determines that the amount of "certified terrorism loss" has exceeded the maximum
annual liability as set forth by the Federal Terrorism Risk Insurance Act of 2002 or any amendments thereto, we will
not pay for any portion of "certified terrorism loss" that exceeds the maximum annual liability.
4. Neither the "terms" of this endorsement no r the "terms" of any other terrorism endorsement attached to this policy pro-vide coverage for any loss that would otherwise be excluded by this policy under:
A. Exclusions that address war, military action, or nuclear hazard; or
B. Any other exclusion.
5. The absence of any other terrorism endorsement does not imply coverage for any loss that would otherwise be ex -
cluded by this policy under:
A. Exclusions that address war, military action, or nuclear hazard; or
B. Any other exclusion.
ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED.
CPR 2221 (02/03) Page 1 of 1
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Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 40 of 50
Policy Number: MCP0140064 Mt. Hawley Insurance Company
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CONDITIONAL TERRORISM EXCLUSION
(Relating to the Certified Terrorism Loss Endorsement already on this Policy.)
Applicability of the provisions of this endorsement.
A. The provisions of this endorsement will apply on the date one of the following situations first occurs:
1. The federal Terrorism Risk Insurance Program ("Program") established by the Terrorism Risk Insurance Act of2002, terminates; or
2. The Program is renewed, extended or otherwise continued in effect without a requirement to make terrorismcoverage available to you and with changes that
a. Increase our statutory percentage deductible under the Program for terrorism losses. (That deductibledetermines the amount of all certified terrorism losses we must pay in a calendar year, before the federalgovernment shares in subsequent payment of certified terrorism losses.); or
b. Decrease the federal government's statutory percentage share in potential terrorism losses above suchdeductible; or
c. Redefine terrorism or make insurance coverage for terrorism subject to provisions or requirements that differfrom those that apply to other types of events or occurrences under this policy.
The Program is scheduled to terminate at the end of December 31, 2005 unless renewed, extended or otherwisecontinued by act of Congress.
B. If the provisions of this endorsement become
applicable,CPR 2221 CERTIFIED TERRORISM LOSS is
rescinded inits entirety and will become void. Any other endorsements or policy conditions pertaining to terrorism and a part of thispolicy remain in effect until the expiration of this policy.
C. If the provisions of this endorsement do NOT become applicable, any terrorism endorsement already endorsed to thispolicy that addresses "certified acts of terrorism" will continue in effect unless we notify you of changes to thatendorsement in response to federal law.
ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED.
CPR 2257 (09/04) Page 1 of 1
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Case 0:09-cv-60723-AJ Document 1-2 Entered on FLSD Docket 05/15/2009 Page 41 of 50
Policy Number: MCP0140064 Mt. Hawley Insurance Company
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
FLORIDA CHANGES - CANCELLATION AND NONRENEWAL
This endorsement modifies insurance provided under the following:
BOILER AND MACHINERY COVERAGE PART
CAPITAL ASSETS PROGRAM (OUTPUT POLICY) COVERAGE PART
COMMERCIAL INLAND MARINE COVERAGE PART
COMMERCIAL PROPERTY COVERAGE PART
CRIME AND FIDELITY COVERAGE PART
FARM COVERAGE PART
A. Paragraph 2. of the Cancellation Common Policy (2) On the basis of filing of claims for partialCondition is replaced by the following: loss caused by sinkhole damage, regard-
less of whether this policy has been the2. Cancellation For Policies In Effect 90 Days Or subject of a sinkhole claim, or on the ba-
Less sis of the risk associated with the occur-
rence of such a claim. However, we maya. If this policy has been in effect for 90 days or cancel this policy if:
less, we may cancel this policy by mailing or
delivering to the first Named Insured written (a) The total of such property insurance
notice of cancellation, accompanied by the claim payments for this policy ex-
specific reasons for cancellation, at least: ceeds the current policy limits of cov-
erage for property damage; or(1) 10 days before the effective date of can-
cellation if we cancel for nonpayment of (b) You have failed to repair the structure
premium; or in accordance with the engineeringrecommendations
uponwhich
any(2) 20 days before the effective date of can- loss payment or policy proceeds were
cellation if we cancel for any other rea- based.
son, except we may cancel immediately if
there has been: B. The following is added to the Cancellation Common
Policy Condition:
(a) A matorial misstatement or misrepre-sentation; or 7. Cancellation For Policies In Effect For More
Than 90 Days(b) A failure to comply with underwriting
requirements established by the a. I f this policy has been in effect for more thaninsurer. 90 days, we may cancel this policy only for
one or more of the following reasons:
b. We may not cancel:
(1 ) Nonpayment of premium;(1) On the basis of property insurance claims
that are the result of an act o f God, unless (2) The policy was obtained by a material
we ca n demonstrate, by claims frequency misstatement;or otherwise, that you have failed to take
action reasonably necessary as request- (3) There has been a failure to comply with
ed by us to prevent recurrence of damage underwriting requirements established byto the insured property; or the insurer within 90 days of the effective
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SERVICE OF SUIT ENDORSEMENT
It is understood and agreed that in the event of the failure of the Company to pay any amount claimed to be due
hereunder, the Company, at the request of the Named Insured, will submit to the jurisdiction of a court of competentjurisdiction within the United States of America. The foregoing shall not constitute a waiver of the right of the Company to
remove, remand or transfer such suit to any other court of competent jurisdiction in accordance with the applicable statutesof the state or United States per-tinent hereto. In any suit instituted against them upon this contract, the Company willabide by the final decision of such court or of any appellate court in the event of an appeal.
It is further
agreedthat service of
processIn such suit
maybe made
uponthe
Superintendent, Commissioner, or Directorof Insurance or other person specified for that purpose in the statute or his successor o r successors in office as their trueand law-ful attorney upon whom may be served any lawful process in any action, suit, or proceeding instituted by or onbehalf of the Named Insured or any beneficiary hereunder arising out of this contract of insurance. The Company herebydesignates Michael J. Stone, President,
Mt. Hawley Insurance Company
9025 N. Lindbergh Drive, Peoria, Illinois 61615 as the person to whom the said Superintendent, Commissioner, or Directorof Insurance is authorized to mail such process or a true copy thereof, in compliance with the applicable statutes governingsaid service of process in the state or jurisdiction in which a cause of action under this contract of insurance arises.
ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED.
•
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8/8/2019 EL-AD RESIDENCES AT MIRAMAR CONDOMINIUM ASSOCIATION, INC. V. MT. HAWLEY INSURANCE COMPANY et al Co…
Named Insured & Mailing Address Producer's Name & AddressEl Ad Residences at Miramar SWETT & CRAWFORD CORP2480 West Preserve Way 2 WALL STREETMiramar FL 33025 10TH FLOOR
NEW YORK NY 1000565431W-NEW
General Policy Policy Period: 12 months
informationBusiness Description: Condominiums
When Coverage Begins: 09/07/2005 12:01 A.M. Standard Time at Named Insured's Addre
When Coverage Ends: 09/07/2006 12:01 A.M. Standard Time at Named Insured's Addre
In return fo r the payment of the premium, and subject to all the terms of this policy, weagree with you to provide the insurance as stated in this policy.
The premium for this policy is indicated below next to the applicable Coverage Form(s).
Coverage FormPremium
Commercial Property Excess Manuscript Coverage Part 55,000.00
Total Premium: $ 55,000.00
Minimum Earned Premium: $ 13,750.00
Attached Forms See Forms Schedule CPfs2information
Authorization Countersigned At:
InformationDate: 10/25/2005
JS/pgmAuthorized Agent:
These Declarations together with the Coverage Declarations, Common Policy Conditions andPage 1 of 1 Coverage Conditions (if applicable), Coverage Form(s) and Forms and Endorsements, if any, issuedForm BB-5W58a (12/95) to form a part thereof, complete the above numbered policy.
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t ))EXCESS SCHEDULE & MANUSCRIPT FORM
ITEM
1. TITLE OF ASSURED: El Ad Residences at Miramar
(See ACE "A")
2. ADDRESS OF ASSURED: 2480 West Preserve WayMiramar FL 33025
3. PERILS COVERED: Risks of direct physical loss or damage excludingEarthquake and Flood and Earthquake SprinklerLeakage per Primary Policy (Mt. Hawley insurance
Company Policy No. MCP0140064) and forms and
endorsements attached to this policy.
4. PROPERTY INSURED: Buildings, Business Personal Property, Business Income
including Extra Expense and Rental Value per PrimaryPolicy (Mt. Hawley Insurance Company Policy No.
MCP0140064) and schedule on file with Westchester
Surplus Lines Insurance Company Policy No.
035910177 001.
5, PERIOD OF INSURANCE: 09/07/2005 To 09/07/2006
6. PREMIUM: $55,000.00 subject to a minimum earned premium in the
Entered on FLSD Docket 05/15/2009 FIP-45W5016,350ELECTRD NIC
c.JS 44 (Rev. 2/08) CIVIL" COVER SHEET
The JS 44 civil cover sheet and the information containedherein neither replace nor supplement the filing and service of pleadings or other papers as r May 15, 2009by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the us e of the Clerk szi
the civil docket sheet. (SEE INSTRUCTIONS ON TH E REVERSE OF THE FORM.) NOTICE: Attorneys MUST Indicate All Re-filed C F
I. (a) PLAINTIFFS DEFENDANTS S,-11EVEN1' M. &RI MORE
(CA RK U.S. WIN C
EL-AD RESIDENCES AT MIRAMAR CONDOMINIUM MT. HAWLEY INSURANCE COMPANI op?, 0 Fa Fj....A.
ASSOCIATION, INC. SURPLUS LINES INSURANCE COMPANY
(b) County of Residence of First Listed Plaintiff BROWARD County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
(C) Attorney's (Firm Name, Address, and Telephone Number)
NOTE. IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TR
LAND INVOLVED.
Daniel S. Rosenbaum, Esq., Katzman Garfinkel Rosenbaum
250 Australian Ave. S., Ste 500, West Palm Beach, FL 33401 Attorneys (If Known)
