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Case 0:05-cv-61364-KAM Document 33 Entered on FLSD Docket 08/17/2006 Page 1 of 5

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORID A

CASE NO. 05-61364-CIV-MARRA/SELTZE R

INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC .,
a Flo rida not for profit charity ,

Plaintiff, FILED by , D.C.

vs .
AUG 15 2006
SANDERS MARINE TOWING, INC . CLARENCE MAUUOX
CLERK U .S . DIST . CT.
et al ., S .D . OF FLA . FT. LAUD.

Defendant .

ORDER

This cause is before the Court upon Defendant Indemnity Insurance Company of Nort h

America's ("INA" "Defendant") Motion for Summary Judgment [DE 23] . Plaintiff International

Marine Research Institute, Inc . ("IMRI" "Plaintiff") filed a response to the motion on May 8,

2006 and Defendant INA filed its reply on May 15, 2006 . The matter is now ripe for review .

The discovery cut-off date in this case is September 25, 2006 and the deadline for filing

substantive pre-trial motions is October 15, 2006 . (Order Setting Trial Dates and Discovery

Deadlines [DE 18] .) Nonetheless, on April 17, 2006, Defendant INA moved for summary

judgment on Count V (Breach of Contract) of the Verified Complaint, the only claim lodged

against it by Plaintiff. (Verified Complaint at ¶ ¶ 72-83 .) According to the Verified Complaint,

Defendant INA is engaged in the business of underwriting marine insurance and had issued a

policy to Plaintiff's vessel . (Verified Complaint at ¶ 17 .) Co-defendant Royal Insurance

Company was Plaintiff's insurance agent and/or broker (Verified Complaint at ¶ 20 .) After the
Case 0:05-cv-61364-KAM Document 33 Entered on FLSD Docket 08/17/2006 Page 2 of 5

vessel sustained a loss on or about December 23, 2004, Defendant INA did not pay Plaintiff for

the loss sustained to its vessel . (Verified Complaint at ¶ 11 27-43, 73-81 . )

In its Motion for Summary Judgment, Defendant INA puts forth its statement of material

facts not in dispute. Defendant INA states that it issued a policy that covered Plaintiff's vessel .

The policy of insurance contained a Port Risk Endorsement which stated that "[w]arranted

insured yacht(s) are confined to port, located at (as per submitted monthly reports) however, for

the purpose of vessel demonstration, service or maintenance, navigation is granted within a

twenty (20) mile radius of the port risk locations ." (Exh. 1B attached to Def. Mot .) In addition,

lines 143-44 of the Commercial Hull Policy states that "[a]ny deviation beyond the navigation

limits provided herein shall void this policy." (Exh . I B attached to Def. Mot .)

Additionally, Defendant INA highlights a monthly inventory report, submitted by

Plaintiff's representative, covering the period of December 19, 2004 though January 19, 2005,

that showed that Plaintiff's vessel had a "port risk physical location" of 404 Riberia, St .

Augustine, Florida . (Exh . IC attached to De£ Mot .) Despite that representation, according to

Defendant INA, Plaintiff's vessel left that St . Augustine location and, on or about December 23,

2004, Plaintiff's vessel began taking on water, eventually capsizing approximately 163 miles

away from St. Augustine, Florida and near Fort Pierce, Florida . '

Based on those facts, Defendant INA argues that the record is clear that Plaintiff's vessel

was beyond 20 miles from St. Augustine and that such an act constitutes a breach of an express

navigational limit warranty in the insurance contract, thus releasing Defendant INA from an y

' The Court notes that Defendant INA does not provide a citation to the record for thi s
fact .

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liability. (Def. Mot . at 3-5 .) Additionally, Defendant INA claims that even if Plaintiff advised

co-defendant Royal Marine Insurance Company, Inc . of its intention to take the vessel beyond 20

radius miles from St . Augustine, knowledge of an insurance broker cannot be imputed to the

insurer. (Def. Mot . at 5-6.) In support of this later proposition , Defendant INA cites Lien Ho v.

Klaus , 738 F .2d 1455 ( 9`" Cir . 1984) and Jefferson Ins . Co . of N .Y . v . Huggins , No. 3 :99-CV-

1315-H, 2000 WL 1881201 ( N .D . Tex . July 10, 2000) .

In filing its response to Defendant INA's motion , Plaintiff specifically controve rts

Defendant 1NA's representation that "[u]nbeknownst to INA , on or about December 17, 2004,

the vessel [ ] left the marina in St . Augustine , Florida ." (Def. Statement of Material Facts at ¶ 9 ;

P1. Resp . at 4 .) In fact, Plaintiff states that "it is unclear whether [ ] Royal Ma ri ne Insurance

Group , Inc . transmitted information regarding the [vessel ' s] movement from the St . Augustine

area prior to the loss as set fo rt h [by INA ] ." (P1 . Resp . at 4.) Plaintiff argues that summary

judgment should not be granted prior to providing the pa rties with an oppo rtunity to engage in

meaningful discovery . (Pl . Resp . at 4.) According to Plaintiff, it is necessary for it to take the

depositions of representatives from both co-defendant Royal Marine Insurance Company, Inc .

and Defendant INA because Plaintiff told co-defendant Royal Marine Insurance Company, Inc .

that the vessel was being moved and "[i]t is unclear whether the information was relayed from

Royal Marine Insurance Company, Inc . to [ID A] conce rning the vessel[ ' s] [ ] southbound

movement in conformity with the policy terms ." (P1 . Resp . at 5 .) In reply, Defendant INA

criticizes Plaintiff for failing to point to record evidence that a notice was sent by Plaintiff to co-

defendant Royal Marine Insurance Company, Inc . or to Defendant INA .

The Court begins its analysis by noting that a non-moving pa rty may move pursuant t o

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Federal Rule of Civil Procedure 56(f) for a continuance to obtain fu rther evidence, where

additional discove ry would enable the non-movant to carry its burden on summary judgment .

See Fed. R. Civ. P . 56(f) ; Fitzpatrick v . Cityof Atlanta, 2 F .3d 1112 , 1116 n .3 (11`h Cir. 1993) .

In ruling on summary judgment motions , the Eleventh Circuit has held that "summaryjudgment

may only be decided upon an adequate record ." WSB-TV v . Lee, 842 F .2d 1266, 1269 (11" Cir .

1988). Moreover, "the opposing party does not need to file an affidavit pursuant to Rule 56(f) in

order to invoke the protection of that rule because `the written representation by [the opposing

party's] lawyer, an officer of the cou rt, is in the spirit of Rule 56(f) under the circumstances . "'

Fernandez v . Bankers Nat'] Life Ins . Co . , 906 F .2d 559, 570 (11`h Cir . 1990) quoting Snook v .

Trust Co . , 859 F .2d 865 , 871 (11`h Cir. 1988) .

The Cou rt finds that Plaintiff ' s response memorandum constitutes a request for a

continuance in order that additional evidence may be obtained . Specifically, Plaintiff points out

that it has not had the oppo rtunity to engage in discove ry that may show that Defendant INA was

aware of the movement of Plaintiff' s vessel . Although Defendant INA insists that notice to co-

defendant Royal Marine Insurance Company, Inc . is not effective notice to Defendant INA, the

cases relied upon by Defendant INA are not binding on this Cou rt . Indeed, Defendant INA

provides the Cou rt with a Ninth Circuit case that interprets Oregon law and an unpublished

decision from the federal district cou rt in the No rthern District of Texas . (Def. Mot . at 5 ; Def.

Reply at 2 .) Furthermore , Defendant INA fails to cite to record evidence that the vessel left St .

Augustine and eventually capsized . Moreover , Plaintiff wishes to conduct discovery in order to

show that notice was actually received by Defendant INA .

Defendant INA's failure to provide this Cou rt with binding case law or record citations i n

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support of its motion as well as Plaintiff's need to develop an adequate record to meet its burden

as a non-moving party, compels this Court to conclude that, at the very least, Plaintiff should be

afforded the opportunity to conduct adequate discovery . Cf. Snook , 859 F .2d at 87 0

("[g]enerally summary judgment is inappropriate when the party opposing the motion has bee n

unable to obtain responses to his discovery requests") . By doing so, the Court rejects Defendant

INA's argument that Plaintiff's failure to supply record evidence, at this juncture, supports the

granting of summary judgment in its favor . Instead, by permitting discovery to go forward, the

Court will be assured that summary judgment is decided "upon an adequate record ." WSB-TV ,

842 F .2d at 1269 .

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant INA's Motion

for Summary Judgment [DE 23] is DENIED WITHOUT PREJUDICE. Defendant INA may

renew its motion after adequate discovery has been completed .

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, thi s

5'day of August 2006 .

KENNETH A . MARR A
United States District Judge

copies to:

All counsel of record