Accelerant Specialty Insurance Company v. BALLARD

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-61652-CIV-SINGHAL

ACCELERANT SPECIALTY INSURANCE

COMPANY,

Plaintiff/Counter-Defendant,

v.

JASON BALLARD,

Defendant/Counter-Plaintiff.

___________________________________/

ORDER

THIS CAUSE is before the Court on Plaintiff’s Motion for Summary Judgment.

(DE [84]). The motion is fully briefed and ripe for review. For the reasons discussed below,

the motion is granted.

I. INTRODUCTION

Plaintiff, Accelerant Specialty Insurance Company (“Accelerant”), seeks a

declaratory judgment that it is not obligated to provide coverage under a Private and

Pleasure Yacht Insuring Agreement1 (the “Policy”) (DE [12-1]) issued by it to Defendant

Jason Ballard (“Ballard”). Ballard, in turn, has filed a Counterclaim against Accelerant for

breach of contract and seeks payment under the Policy. (DE [46]).

The dispute arose after the insured vessel suffered a sudden and accidental loss

when it grounded on a submerged rock in the Hillsboro Inlet near Pompano Beach,

Florida. Ballard made a claim for coverage under the Policy and, after investigation,

Accelerant filed this declaratory judgment action. Accelerant contends no coverage is

owed because under New York law, Ballard’s breach of the Policy’s fire suppression and

misrepresentation that all the survey recommendations had been completed violated the

federal admiralty doctrine of uberrimae fidei, and the Policy is, therefore, void from its

inception. (DE [1] ¶¶ 42-50).

Ballard contends that Florida, not New York, law should apply. He also argues that

he did not breach the Policy’s conditions and warranties because the loss to the vessel

was not caused by fire and the firefighting equipment was in working order. He states that

he was never provided a copy of the survey and cannot, therefore be charged with failure

to comply with the survey. He also argues that the alleged misrepresentations were not

material to the risk. Finally, Ballard argues that Accelerant waived the right to rescind the

Policy because it never refunded the premium to him.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is

appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material

fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S.

650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));2 see also Alabama v.

North Carolina, 560 U.S. 330, 344 (2010). The moving party bears the “responsibility of

informing the … court of the basis for its motion and identifying those portions of the

‘pleadings, depositions, answers to interrogatories, and admissions on file, together with

affidavits if any, which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The court must construe the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756

2 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “‘genuine

issue’ of any material fact.”

are viewed in the light most favorable to the non-moving party on each motion.” Chavez

v. Mercantil Commercebank, N.A. 701 F.3d 896, 899 (11th Cir. 2012). The court must

consider each motion on its own merits. SEC v. Keener, 580 F. Supp. 3d 1272, 1281

(S.D. Fla. 2022).

To prevail on a motion for summary judgment, “the nonmoving party must offer

more than a mere scintilla of evidence for its position; indeed, the nonmoving party must

make a showing sufficient to permit the jury to reasonably find on its behalf.” Urquilla-

Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015). “[T]his, however, does not

mean that we are constrained to accept all the nonmovant’s factual characterizations and

legal arguments.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994).

III. DISCUSSION

Ballard owns a 1986 40’ Viking yacht. (DE [84] ¶ 1). The Policy (DE [12-1]) insured

the vessel’s hull for $72,000, subject to a $10,800 deductible. (DE [84] ¶ 2).

The Policy contains General Conditions and Warranties, including the following:

xi. If the Scheduled Vessel is fitted with fire extinguishing equipment,

then it is warranted that:

a. All fire extinguishing equipment is properly installed and is

maintained in good working order.

b. All fire extinguishing equipment is tagged and certified

annually or in accordance with the manufacturer’s

recommendations, whichever is more frequent.

c. The tanks of such equipment are weighed annually or in

accordance with the manufacturer’s recommendations,

whichever is more frequent.

d. The tanks are recharged as necessary.

For purposes of complying with this warranty, all installation,

maintenance, certification, tagging, weighing, and recharging must be

conducted by a duly licensed and qualified individual whose principal

business is the installation, maintenance, certification, tagging,

weighing, and recharging of such systems. Such individual may not be

approved by Us in writing. (DE [12-1] p. 14).

xiii. This contract is null and void in the event of a non-disclosure or

misrepresentation of a fact or circumstances material to Our

acceptance or continuance of this insurance. No action or inaction by

Us shall be deemed a waiver of this provision. Id.

xviii. Unless We agree in writing to the contrary, if We request a survey

of the Scheduled Vessel then it is warranted that such survey is in

existence prior to the effective date of this insurance and a copy of the

same must be received by us within 30 days of the effective date of this

Insuring Agreement. If the survey makes any recommendations with

respect to the Scheduled Vessel, then it is warranted that all such

recommendations are completed prior to any loss giving rise to any

claim hereunder[.] Id. p. 15.

If You have used a broker to effect coverage, it is hereby agreed that

Your Brokers or any substituted brokers (whether surplus line approved

or otherwise), shall be deemed to be exclusively agents of You and not

of Us in any and all matters relating to, connected with or affecting this

insurance. Any notice given or mailed by us or on behalf of Us to the

said brokers in connection with or affecting this insurance, or its

cancellation, shall be deemed to have been delivered to You. Id. p. 13.

The Policy also provides that, in the absence of entrenched federal maritime law, disputes

under the Policy will be adjudicated under New York law:

11. Choice of Suit, Choice of Law and Forum

It is hereby agreed that any dispute or claim arising hereunder

(including non–contractual disputes or claims), or in connection with

this Insuring Agreement, shall be adjudicated according to well

established, entrenched principles and precedents of substantive

United States Federal Admiralty law and practice but where no such

well-established, entrenched precedent exists, any dispute or claim

arising hereunder (including non–contractual disputes or claims), or in

connection with this Insuring Agreement, is subject to the substantive

laws of the State of New York. Id. p. 18.

At all relevant times, the Vessel had a fire suppression system and at least four

portables. (DE [84] ¶ 17). As of the date of the loss, the vessel’s fixed fire suppression

prior to the loss. Id. ¶¶ 18-21.

Accelerant has produced evidence that it received a survey of the vessel dated

May 27, 2021, with the original application for insurance, from Ballard’s broker. Id. ¶¶ 22-

23. The survey was accompanied by a Letter of Survey Recommendations Compliance

(“LOC”) DocuSigned by Ballard which stated that “all recommendations pertaining to the

above vessel contained with the detailed survey submitted herein have been complied

with.” Id. ¶ 24. The DocuSign was sent to Ballard at an email address to which only he

had access. Id. ¶ 25. The LOC warned that “[a]ny misrepresentation in this letter of

compliance may render insurance coverage null and void from inception.” Id. ¶ 26.

According to Accelerant’s underwriter, Accelerant would not have agreed to provide

insurance if the survey had not been supplied. Id. ¶ 41-42.

The survey noted 10 A-level “Safety Deficiencies,” 18 B-level “Other Deficiencies

Requiring Attention,” and 21 C-level “Surveyor’s Notes and Observations.” Id. ¶ 27. These

recommendations included replacing all fuel hoses on the vessel, seizing the anchor rod

shackles with galvanized or noel seizing wire to help prevent loss of anchor, and

reconditioning gel coating on the forward deck as needed. None of these

recommendations had been completed by the time Accelerant conducted its post-loss

inspection of the Vessel. Id. ¶¶ 27-34. When Ballard signed the renewal questionnaire in

2022, he did not disclose that he had not corrected the deficiencies noted on the survey,

nor did he disclose that the fire suppression system had not been recertified since May

2021. Id. ¶ 40.

Accelerant’s underwriter stated that any prudent and intelligent insurer would

request a survey on a 35-year-old boat and would expect that any safety-related

vessel. Id. ¶¶ 41-42. The underwriter testified that if Accelerant had known that the survey

deficiencies were not corrected, it still may have agreed to issue the Policy, but only

subject to a warranty that the vessel would remain in port until the recommendations had

been complied with. Id. ¶ 43.

Ballard does not contest the language of the Policy, but he claims he never

received a copy of the Policy prior to the loss or the filing of his claim. (DE [106] ¶¶ 3-11,

23-28, 30, 32, 34, 39). Ballard’s response to Accelerant’s statements about the Vessel’s

condition, the fire suppression system, the survey compliance, and the loss history do not

address the factual matters, but rather, disputes that these issues are material or related

to the loss. He further states that materiality precludes summary judgment. Id. ¶¶ 18-21,

29, 31, 33, 36-37, 40-50). But Ballard has not submitted any admissible evidence to

dispute the facts as stated by Accelerant.3

A. Accelerant’s Motion for Summary Judgment

Accelerant argues the Policy is void under New York law due to breach of several

Policy warranties and under the federal maritime doctrine of uberrimae fidei. Ballard

disputes each of these claims. He also argues that Accelerant has waived the right to

revoke the policy by not refunding his premium.

1. Choice of law

The first issue to be addressed is which law applies. The Policy contains a choice

of law clause providing that, in the absence of entrenched federal maritime law, disputes

under the Policy will be adjudicated under New York law. (DE [84] ¶ 10; DE [12-1], p. 18).

3 Ballard attempted to introduce facts in the form of denials offered by an expert witness. See (DE [82-1]).

The Court struck most of the witness’ testimony as improper expert testimony under Fed. R. Evid. 702. See

(DE [114]).

hereunder (including non–contractual disputes or claims), or

in connection with this Insuring Agreement, shall be

adjudicated according to well established, entrenched

principles and precedents of substantive United States

Federal Admiralty law and practice but where no such well-

established, entrenched precedent exists, any dispute or

claim arising hereunder (including non–contractual disputes

or claims), or in connection with this Insuring Agreement, is

subject to the substantive laws of the State of New York.

“[T]here is no firmly established federal maritime precedent governing express fire-

suppression or survey-compliance warranties.” Clear Spring Prop. and Cas. Co. v. Viking

Power LLC, 608 F. Supp. 3d 1220, 1226 (S.D. Fla. 2022) (Altonaga, C.J.) (citing Wilburn

Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 314-15 (1955). The scope and validity

of marine insurance warranties are to be determined by reference to state law. Id.

Ballard argues that Florida law should apply and bases most of his arguments on

Florida law; he argues that Accelerant has no good faith basis for arguing why New York

law should apply. This is incorrect. “Longstanding precedent establishes a federal

maritime rule: Choice-of-law provisions in maritime contracts are presumptively

enforceable.” Great Lakes Ins. SE v. Raiders Retreat Realty Co., 601 U.S. 65, 70 (2024).

There are only three instances where a court should disregard a maritime choice-of-law

provision: “(1) ‘when the chosen law would contravene a controlling federal statute’; (2)

when the choice-of-law clause would ‘conflict with an established federal maritime policy’;

or (3) ‘when parties can furnish no reasonable basis for the chosen jurisdiction.’” Clear

Spring Prop. & Cas. Co. v. Wello & Mom, LLC, 2025 WL 626028, at *11 (S.D. Fla. Feb.

26, 2025) (Altman, J.) (quoting Raiders Retreat, 601 U.S. at 76).

Ballard does not argue that New York law would contravene a controlling federal

statute or conflict with established federal maritime policy. He argues that application of

New York law would be unreasonable and unjust, that New York has no connection with

These arguments do not persuade.

First, the Supreme Court has stated that “the ‘no reasonable basis’ exception must

be applied with substantial deference to the contracting parties, recognizing that maritime

actors may sometimes choose the law of a specific jurisdiction because it is well

developed, well known, and well regarded.” Raiders Retreat, 601 U.S. at 77. Ballard does

not argue that New York law is inadequate. Indeed, “courts in this District routinely enforce

choice of law provisions selecting federal maritime or New York law as the law governing

marine insurance policies.” Liermo v. Nat'l Cas. Co., 733 F. Supp. 3d 1359, 1365 (S.D.

Fla. 2024) (citing cases).

Second, the Supreme Court rejected the proposition that state-level public policy

concerns could invalidate choice-of-law provisions in maritime contracts.

A federal presumption of enforceability would not be much of a

presumption if it could be routinely swept aside based on 50

States’ public policy determinations. The ensuing disuniformity

and uncertainty caused by such an approach would undermine

the fundamental purpose of choice-of-law clauses in maritime

contracts: uniform and stable rules for maritime actors.

Raiders Retreat, 601 U.S. at 77; see also Wello and Mom, LLC, 2025 WL 626028, at *11

(noting that in Raiders Retreat, “the Supreme Court declined to recognize an additional

exception based on state public policy”) (emphasis in original)). As a consumer, Ballard

had complete freedom to purchase a policy without a choice of law clause, or one that

did not specify New York law. But this Policy by its terms directs that the parties shall first

look to “well established, entrenched principles and precedents of substantive United

States Federal Admiralty law and practice” and if no such law exists, to the law of New

York. (DE [12-1]). New York law applies to this dispute and the Court will not address

Ballard’s arguments that are based on Florida law.

Accelerant argues the Policy is void because Ballard breached two Policy

warranties: the Fire suppression warranty and the Survey compliance warranty. As

discussed above, New York law applies to these claims. Under New York law, a “breach

of an express warranty in a marine insurance policy voids the policy, even where the

breach played no role in the loss.” Wello and Mom, 2025 WL 626028, *13 (quotations

omitted) (citing Jarvis Towing & Transp. Corp. v. Aetna Ins. Co., 82 N.E.2d 577, 577 (N.Y.

1948) (holding that noncompliance with an express warranty “forbids recovery, regardless

of whether the omission had a causal relation to the loss”).

a. The fire extinguisher warranty

Ballard argues the breach of the fire extinguisher warranty cannot void the Policy

because (1) the fire extinguishers were in working condition and (2) the loss was not

caused by fire. Neither argument prevails.

The fire extinguisher warranty states as follows:

9. General Conditions & Warranties

xi. If the Scheduled Vessel is fitted with fire extinguishing equipment, then

it is warranted that:

a. All fire extinguishing equipment is properly installed and is

maintained in good working order.

b. All fire extinguishing equipment is tagged and certified annually

or in accordance with the manufacturer’s recommendations,

whichever is more frequent.

c. The tanks of such equipment are weighed annually or in

accordance with the manufacturer’s recommendations,

whichever is more frequent.

d. The tanks are recharged as necessary.

For purposes of complying with this warranty, all installation, maintenance,

certification, tagging, weighing, and recharging must be conducted by a duly

licensed and qualified individual whose principal business is the installation,

maintenance, certification, tagging, weighing, and recharging of such

named operator, unless expressly approved by us in writing. (DE [1] ¶ 16).

As discussed above, under New York law a breach of a marine insurance policy’s

warranty will forbid recovery regardless of whether there is causation between the breach

and the injury. Great Lakes Ins. SE v. Chartered Yachts Miami LLC, 676 F. Supp. 3d

1251, 1264 (S.D. Fla. 2023) (Williams, J.) (citing Jarvis Towing & Transp. Corp., 82

N.E.2d 577); Sirius Ins. Co. (UK) v. Collins, 1993 WL 645926, at *2 (E.D.N.Y. June 29,

1993)). “[T]he governing law of New York requires strict and literal compliance with all the

Policy’s warranties.” Wello and Mom, LLC, 2025 WL 626028, at *15 (emphasis in

original). The fact that the fire suppression system was working and complied with Coast

Guard regulations (DE [106-1] ¶ 10) does not satisfy the Policy’s requirement that the

system be tagged, certified, and weighed at least annually by a qualified individual.

Accelerant has introduced evidence that, as of the date of loss, the Vessel’s fixed

fire suppression system had not been weighed, certified, or tagged since May 2021, more

than one year prior to the loss. (DE [84] ¶¶ 16-21). This evidence is unrefuted. An

insured’s belief that fire extinguishing equipment is functional and properly maintained

does not comply with the Policy’s warranties. Id. at 14-15 (citing Viking Power, 608 F.

Supp. 3d at 1227 (“Defendants’ argument [that the fire-extinguishing system was properly

maintained] is beside the point…All that matters is whether the fire-suppression warranty

was breached”). Likewise, in this case, the evidence submitted by Accelerant establishes

that the fire suppression warranty was breached.

Ballard argues the fire suppression warranty language is ambiguous, and it cannot,

therefore be used to deny coverage. Ballard does not, however, identify the purported

ambiguity nor can the Court discern an ambiguity. “A contract is ambiguous if it is

reasonably susceptible to more than one interpretation.” Viking Power, 608 F. Supp. 3d

N.Y.3d 675, 680, 37 N.E.3d 78, 16 N.Y.S.3d 21 (2015)). The fire suppression warranty

clearly states that the fire suppression equipment must be weighed, certified, and tagged

at least annually. Other courts in this District and elsewhere have found no ambiguity in

similar clauses. Viking Power, 608 F. Supp. 3d at 1227; Lloyd’s of London v. Pagan-

Sanchez, 539 F.3d 19 (1st Cir. 2008) (fire-suppression warranty not ambiguous); Clear

Spring Prop. & Cas. Co. v. Big Toys LLC, 683 F. Supp. 3d 1297, 1308–09 (S.D. Fla. 2023)

(“The only reasonable interpretation of the fire suppression warranty is that it required the

tanks be weighed ‘once a year’”).

Ballard argues that he never received a copy of the Policy and suggests, therefore,

that he cannot be bound by its warranties. This is not consistent with the law. “[U]nder

both New York and Florida law, a party is presumed to know and understand the terms

of the contract it entered into.” Big Toys LLC, 683 F. Supp. 3d at 1306 (citing God's

Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371, 812

N.Y.S.2d 435, 845 N.E.2d 1265, 1267 (N.Y. 2006) (a party “may not pick and choose

which provisions suit its purposes, disclaiming part of a contract while alleging breach of

the rest”)); Webster v. Royal Caribbean Cruise, Ltd., 124 F. Supp. 2d 1317, 1324 (S.D.

Fla. 2000) (a party “cannot be permitted to pick and choose the provisions of the

[agreement] he wishes to enforce and those he wishes to ignore when bringing a lawsuit

for damages under the [agreement].”)).

The undisputed evidence establishes that the fire suppression system was not

weighed, certified, and tagged as required by the Policy. (DE [84] ¶¶ 17-22). Under both

the terms of the Policy and New York law, the Policy is null and void. See Policy (DE [12-

1] p. 14); Viking Power, 608 F. Supp. 3d at 1228; Big Toys, 683 F. Supp. 3d at 1306-08.

Accelerant has provided evidence that Ballard signed a Letter of Survey

Recommendations Compliance (“LOC”) (DE [84-8]) in which he certified that “all

recommendations pertaining to the above vessel contained with the detailed survey

submitted herein have been complied with.” (DE [96] ¶ 22; DE [84-8]; DE [84-9]). The

LOC notes that “Any misrepresentation in this letter of compliance may render insurance

coverage null and void from inception.” Id. Accelerant has also introduced uncontroverted

evidence that the survey’s safety recommendations were not corrected. (DE [96] ¶¶ 27-

32).

Ballard has produced no proof to show that the survey recommendations were

completed. Instead, he argues that he never received a copy of the survey. Again, he is

presumed to understand the contents of the contract he seeks to enforce. Big Toys, LLC,

683 F. Supp. 3d at 1306. Further, Ballard sent a LOC to Accelerant cerfiying that the

survey recommendations had been completed. (DE [84] ¶¶ 24-25). The Docusign for the

LOC was sent to Ballard’s private email address. Id. Ballard does not deny signing the

LOC.

The LOC signed by Ballard explained the consequences of a misrepresentation.

New York law upholds provisions voiding a policy for breach of warranty. There is nothing

ambiguous about the warranty. As explained by Chief Judge Altonaga:

Under the Policy, Defendant's violation of the warranty

comes with great consequence. The Policy provided that it

must be treated as void from its inception if Defendant

breached a warranty. As the Court has twice explained (and

Defendant has admitted in its pleadings), New York law

permits marine insurers to deny coverage for breaches of

promissory warranties regardless of whether the breach is

causally connected to a later loss. (See May 20, 2022, Order

6; Mar. 11, 2022, Order 9; Countercl. 13); see also N.Y. Ins.

Law § 3106(c) (McKinney 2022); Jarvis Towing & Transp.

Cunningham v. Ins. Co. of N. Am., 521 F. Supp. 2d 166, 170

(E.D.N.Y. 2006).

Viking Power LLC, 2022 WL 17987116, at *4. “New York law has long provided that the

breach of an express warranty [in a marine insurance policy], whether material to the risk

or not, whether a loss happens through the breach or not, absolutely determines the policy

and the assured forfeits his rights under it.” Chartered Yachts Miami LLC, 676 F. Supp.

3d at 1264 (quoting Great Lakes Reinsurance (UK), PLC v. Rosin, 757 F. Supp. 2d 1244,

1257 (S.D. Fla. 2010) (alteration in original)). Even construing the facts in the light most

favorable to Ballard, the Court concludes that the undisputed evidence of the breach of

the survey compliance warranty compels summary judgment in favor of Accelerant.

3. Uberrimae Fidei

Finally, Ballard argues that Accelerant’s uberrimae fidei argument is “unsupported”

and cannot be a bar to summary judgment in his favor. The Court disagrees.

“Uberrimae fidei requires that an insured fully and voluntarily disclose to the insurer

all facts material to a calculation of the insurance risk.” HIH Marine Services, Inc. v.

Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000). “Under uberrimae fidei, a material

misrepresentation on an application for marine insurance is grounds for voiding the

policy.” Id. at 1363. “Duty under uberriemae fidei is broad. It extends to material facts not

directly inquired into by the insurer and applies even if the misrepresentation was the

result of “mistake, inadvertence, or forgetfulness.” HIH Marine Services, Inc., 211 F.3d at

1363 (quoting Steelmet, Inc. v. Caribe Towing Corp., 747 F.2d 689, 695 (11th Cir. 1984)).

It includes failure to disclose facts which are “within or ought to be within” the knowledge

of the insured, including those which are omitted due to negligence or voluntary

Ins. Co., 409 F.2d 974, 980 (5th Cir. 1969) (internal citations omitted)).

Accelerant’s Complaint alleges Ballard breached the duty of uberriemae fidei by

representing that all the survey recommendations had been complied with as of

November 2021. (DE [1] ¶¶ 45-50). Ballard argues that he “wholly and completely rejects

and controverts the contention that his application for insurance or their letter of

compliance contained a misrepresentation or nondisclosure.” (DE [107] p. 20). He states

that he was never in possession of the survey prior to the issuance of the policy. Id. He

does not, however, deny that he signed the letter of compliance which stated that “all

recommendations pertaining to the above vessel contained with the detailed survey

submitted herein have been complied with.” (DE [96] ¶ 22). And, as discussed above,

Accelerant has introduced evidence that the survey’s safety recommendations were not

corrected. (DE [84] ¶¶ 26-34). Assuming Ballard attested that all survey recommendations

were made without knowing what those recommendations were, the Court cannot

reasonably conclude Ballard’s disclosure was made in good faith.” [A] party who signs a

document without any valid excuse for having failed to read it is conclusively bound by its

terms, unless there is a showing of fraud, duress, or some other wrongful act on the part

of any party to the contract.” Prompt Mortg. Providers of N. Am., LLC v. Zarour, 64

N.Y.S.3d 106, 108 (N.Y. App. Div. 2017). Having signed and submitted the LOC, Ballard

cannot now disavow Accelerant’s reliance on it.

Further, Accelerant has provided uncontroverted testimony that resolution of the

safety-related survey deficiencies is material. (DE [84] ¶¶ 41-43). Ballard has not

produced any admissible evidence to support his argument that the survey compliance

judgment from being entered on Accelerant’s uberriemae fidei claim.

4. Waiver

Ballard argues that Accelerant waived its right to rescind the Policy because it did

not return the premium to him. The undisputed evidence, however, establishes that no

waiver occurred. First, Accelerant has provided proof that it offered to return the premium

to Ballard if he dropped his claim. (DE [96] ¶ 49). Second, Accelerant seeks declaratory

judgment and, therefore, it is not required to return the premium unless and until the Court

declares that there is no coverage available under the Policy. As stated by Judge Bloom

of this District:

Big Toys is correct that an insurer can forfeit its right of rescission

by taking actions inconsistent with rescission. One such

inconsistent action is when an insurer accepts and collects

premiums despite knowing that the policy has been forfeited.

Here, however, Clear Spring did not know of Big Toys’ breach of

the Fire suppression warranty until it conducted its post-accident

investigation. In light of the parties’ disagreement as to whether

the Policy is void, Clear Spring acted appropriately in filing this

lawsuit for declaratory judgment prior to returning the premiums.

Thus, the Court rejects Big Toys’ argument that Clear Spring

forfeited its right of rescission by failing to return Big Toys’

premiums prior to filing suit.

Big Toys LLC, 683 F. Supp. 3d at 1308–09 (citations omitted) (declaring policy void due

to breach of fire suppression warranty and ordering return of premium). The Court agrees

with Judge Bloom’s analysis and concludes that Ballard has failed to establish a waiver.

B. Conclusion

For the reasons discussed above, the undisputed facts in the record establish that

Accelerant is entitled to summary judgment on its claims for breach of warranty and

uberrimae fidei as well as on Ballard’s counterclaim for breach of contract. Accordingly, it

is hereby

ORDERED AND ADJUDGED that Plaintiffs Motion for Summary Judgment

(DE [84]) is GRANTED. Pursuant to Fed. R. Civ. P. 58(a), a separate final judgment will

be entered. The Clerk of Court is directed to CLOSE this case and DENY AS MOOT any

pending motions.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 17th day of

April 2025. \ Z

Copies furnished counsel via CM/ECF eee SINGH

UNITED STATES DISTRICT JUDGE

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