INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC .,
a Flo rida not for profit charity ,
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
Defendant INA is engaged in the business of underwriting marine insurance and had issued a
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
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
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 .)
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 .
2
Case 0:05-cv-61364-KAM Document 33 Entered on FLSD Docket 08/17/2006 Page 3 of 5
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-
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-
The Court begins its analysis by noting that a non-moving pa rty may move pursuant t o
3
Case 0:05-cv-61364-KAM Document 33 Entered on FLSD Docket 08/17/2006 Page 4 of 5
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 .
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
Defendant INA's failure to provide this Cou rt with binding case law or record citations i n
4
Case 0:05-cv-61364-KAM Document 33 Entered on FLSD Docket 08/17/2006 Page 5 of 5
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 ,
for Summary Judgment [DE 23] is DENIED WITHOUT PREJUDICE. Defendant INA may
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, thi s
KENNETH A . MARR A
United States District Judge
copies to: