Katchmore Luhrs, LLC v. Allianz Global & Corporate Specialty

Filing 238

ORDER granting in part and denying in part 132 Defendants' Motion for Partial Summary Judgment. Signed by Magistrate Judge Jonathan Goodman on 1/18/2017. (jf00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15-CIV-23420-GOODMAN
[CONSENT CASE]
KATCHMORE LUHRS, LLC
Plaintiff,
v.
ALLIANZ GLOBAL CORPORATE
& SPECIALTY, and AGCS MARINE
COMPANY,
Defendants.
____________________ /
ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendants Allianz Global Corporate & Specialty (“Global”) and AGCS Marine
Insurance Company (“AGCS Marine”) filed a motion for partial summary judgment
[ECF No. 132] concerning the claim for $1,500 in damages under the “Loss of Charter
Hire” provision of a marine insurance policy and a $10,000 damages claim under the
“Fishing Gear and Personal Effects” provision of the same policy. Plaintiff Katchmore
Luhrs, LLC filed an opposition response [ECF No. 170] and Defendants filed a reply
[ECF No. 233]. For the reasons outlined below, the Undersigned grants the motion
concerning the loss of charter hire damages but denies it concerning the claim for lost
or damaged fishing gear and personal effects.

PROCEDURAL DEFECTS
Plaintiff did not file an adequate statement of disputed facts [ECF No. 171] in
response to the statement of undisputed material facts which Defendants filed [ECF No.
133] in support of their partial summary judgment motion.
Defendants’ Statement of Material Facts contains 13 separately-numbered
paragraphs, using the format required by local rule. But Plaintiff’s responsive statement
does not respond to those 13 paragraphs, nor does it separately flag when its counterstatements begin. Instead, Plaintiff’s purported statement [ECF No. 171] contains 32
separately-numbered paragraphs. They are not numbered in a way to correspond to
Defendants’ paragraph structure, nor do they expressly indicate whether they are
responding to one of Defendants’ numbered paragraphs or providing additional facts.
Apparently, Plaintiff intends for the Undersigned to comb through its confusing
statement of facts and sift through it and the exhibits (and other exhibits it periodically
submitted after its response was filed) and unilaterally decipher its response to each of
the separate paragraphs clearly listed in Defendants’ motion. In other words, Plaintiff’s
approach, contrary to local rule, requires me to, in effect, do its job.
Under Local Rule 56.1, the Undersigned has authority to deem as admitted all
the facts submitted by Defendant in support of its arguments. As the plain language of
Local Rule 56.1 states, “(a): A motion for summary judgment and the opposition
thereto shall be accompanied by a statement of material facts as to which it is
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contended . . . there does exist a genuine issue to be tried[.]” S.D. Fla. L. R. 56.1(a)
(emphasis supplied). The Local Rule requires that such statement “(1) Not exceed ten
(10) pages in length; (2) Be supported by specific references to pleadings, depositions,
answers to interrogatories, admissions, and affidavits on file with the Court; and (3)
Consist of separately numbered paragraphs.” Id. (emphasis supplied).
Specifically, for statements of material facts submitted in opposition to a motion
for summary judgment, the Local Rule requires “correspond[ence] with the order and
with the paragraph numbering scheme used by the movant” and requires that
“[a]dditional facts which the party opposing summary judgment contends are material
shall be numbered and placed at the end of the opposing party’s statement of material
facts [.]” Id. (emphasis added). Failure of a respondent to file a statement of disputed
facts, in the format as required above, causes “[a]ll material facts set forth in the
movant’s statement” to be “deemed admitted unless controverted by the opposing
party’s statement[.]" S.D. Fla. L. R. 56.1(b) (emphasis added).
When a party properly complies with Local Rule 56.1, it is relatively easy for a
court to determine whether there is a genuine disputed issue of fact. Basically, all a
court needs to do is look at the opposing statement of material facts on a paragraph-byparagraph basis and quickly see whether any paragraphs are designated as disputed.
When a party does not comply with the Local Rule, however, then it is exceedingly
difficult for a court to discern if there is a factual dispute concerning a specific
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paragraph. A court needs to review the entire opposing statement of facts and
determine whether any particular sentence or paragraph is, in fact, a vague reference to
some type of actual rebuttal evidence which might generate a disputed issue of material
fact. This can be an arduous process, and, in any event, generates unnecessary work for
the court and its staff.
Essentially, Plaintiff did not follow any of the procedural requirements of Local
Rule 56.1. Its lack of compliance is so clear-cut that the Court undoubtedly has the
discretion to deem Defendants’ facts admitted and then enter partial summary
judgment in Defendants’ favor as Plaintiff’s defective response essentially leaves the
Court with “the functional analog of an unopposed motion for summary judgment.”
Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1343 (S.D. Fla. 2015) (admitting facts from
defendant’s undisputed material facts statement after reviewing the record based on
plaintiff’s violation of Local Rule 56.1); Regions Bank v. 62’ Ocean Sport Fish, No. 13–
20966–CIV, 2014 WL 4055707, at *2 (S.D. Fla. Aug. 14, 2014) (admitting undisputed facts
in plaintiff’s statement supported by the record based on defendants’ violation of Local
Rule 56.1). 1
In Rives v. Lahood, the Eleventh Circuit addressed a somewhat analogous
situation where the non-moving party violated the local rule by failing to file an
On the other hand, Defendants did not file a motion to strike Plaintiff’s
opposition response for violating the Local Rule.
1

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opposing statement of facts. 605 F. App’x 815, 818 (11th Cir. 2015). The Rives court held
that the district court had not erred in accepting the movant’s statement of facts as true
when the non-movant failed to file a counter-statement of material fact. Id.
Because Plaintiff failed to submit a rule-compliant opposing statement of
disputed material facts and likewise failed to submit a conforming counter-statement of
additional facts, the Undersigned is being asked to step into the shoes of Plaintiff’s
attorney and determine what evidence could possibly support the claims Plaintiff is
making in opposition to Defendants’ motion. I am also being asked to review all 32
paragraphs and see whether any of them demonstrate a factual dispute with any of the
13 paragraphs in Defendants’ statement, and, if so, to cross-reference the submissions
and figure out which specific paragraphs are indeed disputed. And I am being asked to
do this without any logical numbering system.
Thus, paragraph 28 of Plaintiff’s statement could conceivably relate to paragraph
4 of Defendants’ submission, or it could relate to paragraph 2 or 6 or 11. Or maybe
paragraph 28 is a purported additional fact, and does not directly relate to any of the 13
paragraphs. To properly analyze the competing factual assertions in this chaotic
scenario generated by Plaintiff’s failure to follow the local rule, I would need to prepare
my own spreadsheet, cross-referencing Defendants’ disorganized factual assertions to
the specifically numbered facts provided by Plaintiff.

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However, it is not my role, when reviewing a summary judgment motion, to
make arguments for Plaintiff (or evaluate non-compliant submissions to discern
whether they create a factual dispute) so that its lawsuit (or certain claims in the
lawsuit) may proceed to trial in the face of a comprehensive, evidence-laden submission
from Defendants.
Because Plaintiff has not filed an acceptable statement of disputed material facts
or additional facts, the Court could treat Defendants’ statement of facts as true and not
consider Plaintiff’s additional factual statements (wherever they may be buried in the
32-paragraph submission). But, notwithstanding Plaintiff’s procedural failings, it is
clear that there are some factual disputes and that some of them will preclude a portion
of the requested relief. These disputes will be discussed, where appropriate, in the body
of this Order.
FACTUAL BACKGROUND
The Insurance Policy provides coverage for “Loss of Charter Hire.” The limit of
this coverage is $1,500. This portion of the Policy states:
Loss of Charter Hire — We will pay up to $250 for one lost charter hire
per day or the amount of charter hire, whichever is less, if your Watercraft
had any written charter party agreements that could not take place
because of a covered loss. For each covered loss to your Watercraft,
coverage applies for the amount of time that your Watercraft would have
been chartered under the charter party agreements, for up to 30 days, but
we will pay no more than $1,500 in the aggregate during the policy term.
No deductible applies to this coverage. This coverage will not apply in the
event of a total loss of your Watercraft.
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[ECF No. 133-1, p. 8] (emphasis added).
This “Loss of Charter Hire” provision was amended to include “oral agreements
for charter” on or about July 24, 2014. This amendment was effected by Endorsement
No. 8, which expressly states that the date of this Endorsement is February 20, 2015.
[ECF No. 133-1, p. 33]. The Endorsement further provides that “ALL OTHER TERMS
AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. DATED 7/24/2014.”
[ECF No. 133-1, p. 33].
Although Endorsement No. 8 (which went into effect on February 20, 2015) does
mention “oral agreements,” it conditions the coverage for an oral charter agreement:
[A]ny oral agreements [the insured makes] must have been confirmed by
[the insured] prior to the date of loss using electronic mail (email) or
regular mail and show the date and duration of the charter, the agreed
cost and person or organization that is agreeing to the charter.
[ECF No. 133-1, p. 33] (emphasis supplied).
Plaintiff seeks damages for Loss of Charter Hire. Although requested to do so by
Defendants in discovery, Plaintiff did not produce any written charter party agreement,
nor did it produce any documents reflecting the existence of charters or that Plaintiff
had taken individuals on charter trips. In addition, Plaintiff did not produce any
confirmation showing the duration of any charter agreements, the agreed cost or the
person or organization agreeing to the charter.
A managing member of Plaintiff is Clarke Zingone, and Mr. Zingone served as
Plaintiff’s corporate representative. During its corporate 30(b)(6) deposition, Plaintiff
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testified that its business is a “100 percent cash business.” [ECF No. 133-2, p. 7]. Plaintiff
further admitted that it did not keep any records “concerning charters and the cash that
was received from the people that hired the company and or the boat for charter”. [ECF
No. 133-2, p. 8].
Plaintiff also admitted that since its inception that it has been a “100 percent cash
business that has never had any records.” [ECF No. 133-2, p. 8].
Plaintiff did, however, provide deposition testimony from Andy Palucha, who
claimed that he had paid Plaintiff for commercial charter trips in the past and was
unable to do so in the future because of the loss of the vessel. Mr. Palucha said: “I had
an unbelievable time. I wish it didn’t sink so I could go again with him. He’s a great
guy, and I love going fishing with him. I haven’t been fishing since, because obviously
his boat sank[.]” [ECF No. 170-5, p. 21].
The Policy also provides coverage for “Fishing Gear and Personal Effects.” In
pertinent part, the Policy states:
Fishing Gear and Personal Effects – We cover the loss or damage to
fishing gear and personal effects belonging to you on board or used in the
water with the Watercraft. We will pay the actual cash value of the
covered personal effects at the time of the loss or the amount shown on
the Declarations, whichever is lower, less a deductible of $100 for each
occurrence. We will not be liable for Personal Effects for any amount
beyond that amount.
[ECF No. 133-1, p. 7]. (emphasis supplied).

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Plaintiff seeks damages for Fishing Gear and Personal Effects. The parties
dispute whether Plaintiff lost covered property. Defendants focus on the fact that
Plaintiff did not “lose” property because they say Plaintiff (1) conceded it has no
knowledge of any equipment missing from the vessel; (2) testified that it removed all of
its fishing rods from the vessel; (3) testified that there was still some equipment on the
vessel; and (4) confirmed that it has recovered “basically all” of the equipment and
fishing rods from the vessel since it sank.
But Defendants stridently challenge these contentions, arguing that there is a
dispute about whether all fishing rods were removed. Moreover, Plaintiff emphasizes
that the policy provides coverage for loss and damage, not merely loss. Therefore, for
example, a fishing rod removed from the vessel might still be covered under the policy
if it was damaged.
The two provisions at issue in the partial summary judgment motion are
identified in Section B of the Policy, entitled “Additional Coverage.” Under the Policy,
Plaintiff may recover for Loss of Charter Hire only if the vessel is deemed to not be a
total loss. Fishing gear and other personal effects are recoverable regardless of the
amount of the loss. The parties disagree on whether the vessel is a total loss.
APPLICABLE LEGAL STANDARDS AND ANALYSIS
The Court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). When “the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (internal citation and marks omitted). If the
movant establishes the absence of a genuine issue, then the non-movant must “do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
For issues on which the opposing party will have the burden of proof at trial, the
movant can prevail by merely pointing out that there is an absence of evidence to
support the non-movant’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
“By its very terms, this standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original).
An issue of fact is genuine “if the record taken as a whole could lead a rational
trier of fact to find for the nonmoving party.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646
(11th Cir. 1997). In applying this standard, the district court must view the evidence and
all factual inferences in the light most favorable to the party opposing the summary
judgment motion. Id. at 646 (internal citation omitted).
Nevertheless, the non-movant cannot defeat summary judgment by: (a)
“rest[ing] upon mere allegations or denials,” Woolsey v. Town of Hillsboro Beach, 541 F.
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App’x 917, 919 (11th Cir. 2013); (b) “simply saying the facts are in dispute,” Latele
Television, C.A. v. Telemundo Commc’ns Grp., LLC, No. 12-22539, 2014 WL 7272974, at *7
(S.D. Fla. Dec. 18, 2014); or (c) relying on “evidence that is merely colorable or not
significantly probative,” Fields v. Gorman, No. 09-61466, 2010 WL 3769396, at *3 (S.D. Fla.
Sept. 3, 2010). “Rhetoric and attorney argument are no substitute for record evidence.”
Latele, 2014 WL 7272974, at *7.
To the contrary, the opposing party has a duty to present affirmative evidence to
defeat a properly supported summary judgment motion. Anderson, 477 U.S. at 252.
Indeed, “Rule 56 mandates the entry of summary judgment, upon motion, against a
party who fails to make a showing sufficient to establish an element essential to his case
on which he bears the burden of proof at trial.” Schechter v. Ga. State Univ., 341 F. App’x
560, 562 (11th Cir. 2009) (citing Celotex, 477 U.S. at 322).
Conclusory allegations, subjective beliefs, opinions, and unsupported assertions
are insufficient as a matter of law to withstand summary judgment. See Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (finding that conclusory
allegations and conjecture cannot be the basis for denying summary judgment); Grigsby
v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987) (“[C]onclusory allegations of
discrimination, without more, are not sufficient to raise an inference of . . . intentional
discrimination[.]”); St. Hilaire v. The Pep Boys–Manny, Moe & Jack, 73 F. Supp. 2d 1350,
1359 (S.D. Fla. 1999) (“[a plaintiff’s] mere belief, speculation, or conclusory accusation
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that he was subject to discrimination will not suffice to create an inference of
discrimination or satisfy his burden when responding to a properly supported motion
for summary judgment.”).
The Charter Party Claim
In its response, Plaintiff argues that the term “charter party agreement” is “an
ambiguous term which is not properly defined by the contract and has no ‘generally
accepted’ definition, legal or otherwise.” [ECF No. 170, p. 18]. It says the term “could be
reasonably interpreted in a myriad of ways,” but it offers only one way. [ECF No. 170,
p. 19]. Plaintiff argues that the term “charter party agreement” would lead to a “liberal
construction” to “encompass any document or oral agreement which could reflect or
evidence the loss of charter revenue as a result of the loss in question.” [ECF No. 170, p.
19]. And Plaintiff then argues that this supposed ambiguity means that the term should
be construed against the drafter (i.e., the insurance carrier).
The Undersigned disagrees. The term “charter party agreement” is not, as
Plaintiff argues, susceptible to a “myriad” of interpretations.
Under Florida law, courts must give effect to the plain language of contracts
when that language is clear and unambiguous. See generally Arriaga v. Fla. Pacific Farms,
LLC, 305 F.3d 1228, 1246 (11th Cir. 2002) (citation omitted). Whether a contract provision
is ambiguous is a question for the court. Arriaga, 305 F.3d at 1246 (citing Strama v. Union
Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001)). Additionally, “an ambiguity
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is not invariably present when an insurance contract requires interpretation, and the
mere failure to define a term involving coverage does not necessarily mean a term is
ambiguous.” TIG Ins. Co. v. Smart School, 401 F. Supp. 2d 1334, 1342 (S.D. Fla. 2005)
(citation omitted); see also Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 30
(Fla. 2d DCA 2004) (finding that the lack of a definition in an operative term does not,
by itself, create ambiguity in an insurance policy).
The mere fact that Plaintiff says the term is ambiguous does not make it so.
Likewise, Plaintiff’s ability to assert a different interpretation does not mean the term is
ambiguous. Moreover, when assessing Plaintiff’s argument that the phrase “charter
party agreement” is ambiguous, the Undersigned should not evaluate the phrase in
isolation from other Policy provisions. Cont’l Ins. Co. v. Collinsworth, 898 So. 2d 1085,
1087-89 (Fla. 5th DCA 2004) (reversing declaratory judgment ruling against insurance
carrier in a wrongful death lawsuit because the term “any speed race” is unambiguous
even though it was not specifically defined in the marine insurance policy, and holding
that any further resort to contract interpretation rules would be unnecessary).
The term “charter party agreement” is a term commonly used in the maritime
community. In fact, the Fifth Circuit Court of Appeals defined “charter party
agreements” as “essentially contracts” which are subject to “the general rules of
contract law.” See Cont’l Ins. Co. v. J. Ray McDermott, Inc., 80 F. App’x 355, 356 (5th Cir.
2003) (citation omitted) (reversing judgment for charterer and rendering judgment in
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favor of the insurance carrier which issued hull insurance). Additionally, the term
“charter” is defined as “to hire, rent, or lease for usually exclusive and temporary use
<chartered

a

boat

for

deep-sea

fishing>.”

Charter,

MERRIAM-WEBSTER.COM,

www.merriam-webster.com/dictionary/charter (last visited Jan. 10, 2017); see also
Hrynkiw v. Allstate Floridian Ins. Co., 844 So. 2d 739, 742 (Fla. 5th DCA 2003) (affirming
order granting insurer’s motion for judgment on the pleadings after interpreting policy
language according to its “everyday meaning” and determining if it is “understandable
to a layperson”) (footnote omitted).
Defendants contend that the effective date of Endorsement No. 8 (which
provides coverage for oral agreements for charter) is February 20, 2015, not July 24,
2015. They further note that Plaintiff’s loss is alleged to have occurred on January 1,
2015, which predates the effective date of Endorsement No. 8 (which means the
coverage in place at the time required written charter party agreements in place). But
the Undersigned need not determine whether to accept or reject Plaintiff’s argument
that Endorsement No. 8 applies because Defendants are entitled to partial summary
judgment even if I were to adopt Plaintiff’s view and find Endorsement No. 8 applicable.
As explained above, Plaintiff did not provide written confirmation (through
“electronic mail (email) or regular mail” of oral agreements for charters. The mere fact
that one paying customer explained that he wished the vessel had not sank because he
would have liked to have gone out on another fishing charter is not sufficient to confirm
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that a charter agreement had in fact been made and confirmed. The comment is not a
confirmation of an agreement; it is an after-the-fact, speculative, generic wish that
perhaps one day it would be nice to take another charter on Plaintiff’s vessel.
Defendants are entitled to partial summary judgment on the charter party claim.
The Fishing Gear and Personal Effects Claim
In opposing Defendants’ partial summary judgment motion, Plaintiff submitted
Captain Zingone’s affidavit.

Among other points raised in the affidavit, Captain

Zingone said “all of the electrical equipment and components were damaged[.]” But,
even if true, this assertion is irrelevant to the current motion -- which concerns “loss of
fishing gear and personal effects.” Electronics is covered by a different paragraph in the
policy -- a paragraph on which Defendants are not here seeking to obtain partial
summary judgment.
Paragraph 4 of the Policy provides:
Electronic Equipment shall mean: all permanently installed electronic and
related equipment used for communication or navigation of the
watercraft.
[ECF No. 133-1, pp. 2, 5].
The definition of Insured Watercraft found

in paragraph

7(c) is entirely

consistent with this distinction. Insured Watercraft is defined to include: “(3) tools,
marine electronics (including portable marine electronics) charts, maps or similar
property[.]”[ECF No. 133-1, pp. 2, 6].
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Because “Electronic Equipment” is separately defined and set apart from the
definition of “Fishing Gear and Personal Effects” found in paragraph 5 of the Policy
definitions, it is distinct from “Fishing Gear” and is part of the “Insured Watercraft.”
Plaintiff also seeks recovery for items identified paragraph 7(c)(l) of the Insured
Watercraft definition:
(1) the hull, spars, sails, winches, rigging, fitting, ships tackle and other
equipment carried aboard as normally required for the operation,
navigation or maintenance of the insured watercraft.
[ECF No. 133-1, pp. 2, 6] (emphasis added).
Consequently, Plaintiff’s claims for chain, anchor rope, hydraulic piston, fuel
filters, poly balls fenders, battery charger, batteries, cushions for seats, docking lines
plugs, and electric cable, simply are not compensable under the “Fishing Gear and
Personal Effects” provision of the Policy. Likewise, there is no basis for Plaintiff’s
inclusion of “GPS and electronics; Marine Radio and Antenna; Lorance Depth Finder”
or screw drivers, ratchets, toolset, or an electric saw as items for which it seeks
compensation under the Fishing Gear provision of the Policy. [ECF No. 170-22].
Therefore, Plaintiff cannot prevent the entry of partial summary judgment in
Defendants’ favor on the “fishing gear and personal effects” provision by pointing to
these types of alleged losses.
However, there is another reason -- i.e., the existence of factual disputes -- which
prevent Defendants from obtaining partial summary judgment.
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As noted above, the provision at issue provides protection for more than fishing
gear which has been “lost;” it also provides coverage for damaged gear. Thus, the mere
fact that Plaintiff recovered an item from the vessel does not preclude recovery if that
recovered or retrieved item is also damaged.
Based on the conflicting evidence submitted by the parties, the Undersigned
cannot conclude that Defendants have established an absence of genuine material facts
concerning fishing gear which was either lost or damaged. Therefore, the Undersigned
denies Defendants’ partial summary judgment motion concerning claims under the
“fishing gear” provision of the policy.
CONCLUSION
The Undersigned grants, in part, Defendants’ summary judgment motion.
Specifically, I grant it on the $1,500 “charter hire” claim and deny it on the $10,000
“fishing gear” coverage claim.
DONE and ORDERED in Chambers, in Miami, Florida, on January 18, 2017.

Copies furnished to:
All Counsel of Record

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