365 F.Supp.2d 57 (2005) | Cited 2 times | D. Maine | April 15, 2005


Claiming a failure to pay under an unissued trip insurancepolicy, a customer filed suit against an insurer and its agencyfor losses to a vessel damaged in transit. At the conclusion ofthe Plaintiff's case during a jury trial, the Defendants made anoral Motion for Judgment as a Matter of Law pursuant toFed.R.Civ.P. 50(a). Because the Plaintiff produced no evidence tripinsurance exists and would have been available to cover theclaimed loss, and because any insurance contract, if issued,would have been voidable under the doctrine of uberrimae fidei,this Court GRANTS the Defendants' Motion for Judgment as a Matterof Law.


A motion for judgment as a matter of law is controlled by Rule50.1 Fed.R.Civ.P. 50. The standard for grantingjudgment as a matter of law "mirrors" the standard for granting summary judgment, such that the "inquiry under each is the same."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150(2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250-51 (1986)). A motion for judgment as a matter of law "onlymay be granted when, after examining the evidence of record anddrawing all reasonable inferences in favor of the nonmovingparty, the record reveals no sufficient evidentiary basis for theverdict." Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70,75 (1st Cir. 2001). In performing this review, the court "may notweigh the evidence, undertake credibility determinations, orengage in differential factfinding." Id.


Frank P. Grande, a resident of Waterville, Maine, owned andoperated APHRODITE, a 25-foot Catalina sail vessel, which hechartered off the Maine coast. He obtained charter insurancethrough Defendant Charter Lakes Insurance Company of Kentwood,Missouri (Charter Lakes), a marine insurance agency, which placedcoverage with Defendant St. Paul Fire & Marine Insurance Co. (St.Paul). The St. Paul policy was for the policy term from June 3,2002 through June 3, 2003.2 Defendant's Exhibit 11.

Mr. Grande dreamt of owning a bigger vessel. In the spring of2003, he went South on business and visited his cousin, Frank A.Grande.3 The cousins had known each other growing up andhad remained close. Frank A. Grande had been successful in thereal estate and construction business in Texas and, afterdiscussing Frank P. Grande's plans to buy and charter a larger vessel, Frank A. Grande made a generous offer. He agreedto loan Frank P. Grande the money to purchase a bigger boat.

Frank P. Grande set about searching for a new vessel. In southFlorida, he came upon what he was looking for: GINA, a 44-footIrwin. He told his cousin about the GINA and Frank A. Grandeended up purchasing the boat for him.4 Once the purchaseprice of $75,000.00 was fixed, Frank A. Grande paid the full$75,000.00 to the seller; Frank P. Grande paid no money towardthe purchase of the GINA. A Purchase and Sale Agreement datedApril 27, 2003 and April 28, 2003, Joint Exhibit J1, and a Billof Sale dated April 29, 2003 were entered into between the sellerand Frank A. Grande. Defendant's Exhibit 18. Frank P. Grandewas not listed as owner or buyer on either document. Id.

Frank P. Grande intended to sail the GINA to Maine, but beforehe did so, he needed insurance.5 He contacted MarkVanEpps, an insurance agent with Charter Lakes and told him, heneeded to add the GINA to the charter policy, remove theAPHRODITE, and obtain coverage for the trip from Florida toMaine. On April 28, 2003, Mr. VanEpps faxed a letter to Frank P.Grande, providing him with a quote. The letter begins: "Thank youfor contacting us regarding your Charter Insurance." It quotes aprice for insuring the GINA for $2,094.00 and lists the coverageprovided by the policy and their limits. It also enclosed anapplication for Frank P. Grande to complete, sign and return, andrequests a boat survey. The letter expressly notes that this is aquote only and coverage is "NOT BOUND." Finally, the followinglanguage appears in the letter: The coverage is underwritten by St. Paul Fire & Marine Insurance Co., an A+ rated company. The annual premium for the above coverage is $2,094.00. There will be a one-time trip fee of $150.00 for navigating your boat from Coconut, FL to your homeport of Long Cove, ME. We will take the Catalina off the policy and pro-rate a return premium on that boat for you, and apply it to this premium, and invoice the remaining balance due.

Joint Exhibit J2B.

On April 28, 2003, Frank P. Grande faxed an insuranceapplication to Charter Lakes. Joint Exhibit J2C. The insuranceapplication asks the name of the "Registered Owner or Lessee" andindicates the applicant is to list "all registered owners." FrankP. Grande wrote in his name and did not list his cousin. Inaddition, the application asks whether the vessel is to be owneroperated and Frank P. Grande answered, "Yes." Finally, it askswhether the vessel is to be operated by anyone other than theowner and Frank P. Grande again listed his name only as the owneroperator. The insurance premium was paid for by Frank A. Grande,not Frank P. Grande. After sending the application and otherinformation to Mr. VanEpps, Frank P. Grande called him some timebefore leaving port and confirmed that the GINA was insured bothfor charter insurance and the trip to Maine.

On May 5, 2003, Mr. Grande left port in Florida, heading forMaine. On May 16-17, 2003, GINA ran into heavy weather off thecoast of Cape Hatteras and the crew issued a "PAN" call. Theywere rescued by the United States Coast Guard; GINA, however,sustained damages that are the focus of this lawsuit.

After the May 16-17, 2003 incident, Frank P. Grande received abinder and policy from the Defendants. See Plaintiff's Exhibit8. The policy was for charter insurance and contained anendorsement that provided coverage to Mr. Grande for the tripfrom Florida to Maine. The policy, however, retained the 100 milenavigational limit that had been imposed in the APHRODITE policy.Frank P. Grande never received a separate policy for tripinsurance. On May 22, 2003, St. Paul issued a reservation of rights letter toFrank P. Grande, raising questions about whether coverage existedunder the charter insurance policy for the losses sustained tothe GINA. Plaintiff's Exhibit 20. This letter was followed by aletter dated August 12, 2003, denying coverage on the ground thatFrank P. Grande had exceeded the 100 mile navigational limit inthe policy. Plaintiff's Exhibit 23.


A. The Trip Insurance Policy

In his Complaint, the Plaintiff claimed the Defendants agreed"to provide marine insurance without any navigational limits" andwhen it imposed navigational limits and denied coverage on thatbasis, they breached "their contracts." Plaintiff's Complaint ¶25. At trial, however, the Plaintiff abandoned his claim that theDefendants breached the terms of the charter insurance policy;instead, he claimed the loss should have been paid under a tripinsurance policy.6 Mr. Grande contended that when heinformed the insurance agent he wished to have coverage for atrip to Maine and the agent agreed to provide such coverage, thisestablished an obligation on the part of the insurer and the agency to pay anyloss to the vessel occurring during the trip. In other words, theinsurer and agency were held to the quote without any limitingterms and conditions. Because the agent had written there "willbe a one-time trip fee of $150.00 for navigating your boat fromCoconut, FL to Long Cove, ME" and the loss occurred on the way toMaine, Mr. Grande says it must have been a covered loss.

Simply put, the Plaintiff's contention is erroneous. First, asthe April 28, 2003 letter makes clear, the letter was aninsurance quote, not an insurance binder. ("If you need coverageimmediately, please call us . . . to bind coverage. Coverage isNOT BOUND. This quote is valid only for 30 days."). This is aquote without a policy. Any insurance quote is subject toacceptance, to the issuance of an insurance binder, and to theterms and conditions of a later issued insurance policy. There isno basis for claiming the April 28, 2003 letter alone constitutedan insurance contract upon which a cause of action for insuranceproceeds could be based.

In this case, Frank P. Grande testified Mr. VanEpps confirmedbefore the GINA left port, that a binder had issued and the GINAwas "free to go." He stressed that, when Mr. VanEpps informed himthat the binder had issued, he made no mention of anynavigational limits. The Plaintiff, therefore, contends that thebinder must have been without navigational limit, except to theextent it was limited to a trip from Florida to Maine.

As Judge Carter explained, however, the "general rule regardingthe terms of an oral binder or contract for temporary insurancepending issuance of a written policy consists, in absence of aspecial agreement, of the usual provisions of contract employedto effect like insurance." Acadia Ins. Co. v. Allied MarineTransp. LLC, 151 F. Supp. 2d 107, 125 (D. Me. 2001); see PineRidge Realty, Inc. v. Massachusetts Bay Ins. Co., 2000 ME 100,752 A.2d 595, 599 (2000) ("In the insurance context, when a lossoccurs after a binder has been issued, but before a policy is written, the insurer is bound to providecoverage in line with its standard policies referenced in thebinder (citations omitted) or policies standard throughout theindustry."). The Charter Lakes insurance binder required St. Paulto write coverage at the quoted price in accordance with itsstandard terms and conditions.7 Here, Frank P. Grande isclaiming that so long as the GINA sustained a loss during hisproposed trip from Florida to Maine, the April 28, 2003 quotetogether with the VanEpps later confirmation of coverage createda binding obligation on the Defendants to pay any loss with "noother restrictions."8 The Plaintiff's entire case,therefore, rests on an insurance quote, not an insurance policy.His fundamental contention is not the law.

There is a separate reason the Plaintiff's claim fails. Tosurvive a Rule 50 motion, the Plaintiff was required to producesome evidence that the trip insurance he is claiming would havecovered the loss exists and could have been provided either bySt. Paul or elsewhere. Royal Maccabees Life Ins. Co. v.Peterson, 139 F.3d 568, 570 (7th Cir. 1998); Huff v. StandardLife Ins. Co., 897 F.2d 1072, 1074 (11th Cir. 1990), cert.denied 499 U.S. 936 (1991); Wilson v. Massachusetts Indem. &Life Ins. Co., 920 F.2d 1548, 1553 (10th Cir. 1990);Lifespan/Physicians Prof'l Servs. Org. v. Combined Ins. Co. ofAm., 345 F. Supp. 2d 214, 227-28 (D.R.I. 2004); AmericanMotorists Ins. Co. v. Salvatore, 476 N.Y.S.2d 897, 900(N.Y.App. Div. 1st Dep't 1984) (an insurance agency may be liable intort or contract for failing to procure insurance; "in order tosupport a recovery, it must be demonstrated that coverage couldhave been procured prior to the occurrence of the insuredevent."); State ex rel. Fisher v. Warren Star Theater,616 N.E.2d 1192, 1196-97 (Ohio Ct. App., Trumbull County 1992)("(T)hird party plaintiffs failed to present any evidence to establish what theterms of the coverage would have been on the . . . policy thatthey had requested."); Bayly, Martin & Fay, Inc. v. Pete'sSatire, Inc., 739 P.2d 239, 243 (Colo. 1987) (quotingHeller-Mark & Co. v. Kassler & Co., 544 P.2d 995, 997(Colo.Ct.App. 1976) ("The law is well established that the plaintiffmust show . . . that other insurance could have been obtained,which requirement arises out of the plaintiff's obligation toprove causation and damages."); Russell v. Reliance Ins. Co.,672 S.W.2d 693, 694 (Mo.Ct.App. 1984) ("If there was noinsurance that could be purchased insuring against the perilcausing the loss then any negligence of respondent would not bethe proximate cause of appellant's damages.").

This rule has been applied in actions involving the procurementof insurance for vessels. See Stinson v. Cravens, Dargan & Co.,579 S.W.2d 298 (Tex.Civ.App. Dallas 1979) (in negligence actionby boat owner against insurance agent for failure to obtaininsurance on boat, failure of owner to prove coverage wasavailable under any policy was fatal to claim); Pacific DredgingCo. v. Hurley, 397 P.2d 819 (Wash. 1964) (dredge owner's actionagainst insurance broker for negligently failing to extend orrenew maritime insurance dismissed where owner failed to provethat the requested insurance, even if obtained, would haveinsured against the loss).

In the only Maine state case on point, Justice Hjelm of theMaine Superior Court concluded to make out a claim under eithernegligence or breach of contract, the purported insured mustpresent "some evidence to allow a finding" that the coverage heis looking for "would have been available." Bangor-BrewerBowling Lanes v. Commercial Union-York Ins. Co., CV-99-259,2001 Me. Super. LEXIS 174, **14-16 (Me. Super. Ct. Pen. Cty., July 3,2001); cf. Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶¶13-14, 742 A.2d 933, 940 (in legal malpractice claim to prove proximate causation, plaintiff mustprove that proper representation would have resulted in morefavorable outcome).

Moreover, the majority rule is that the plaintiffs bear theburden of proving that coverage was available for the loss.Bangor-Brewer, 2001 Me. Super. LEXIS 174 at * 16; Johnson &Higgins v. Blomfield, 907 P.2d 1371, 1374 (Alaska 1995); Bayly,Martin & Fay, Inc., 739 P.2d at 234-44; see generally Liabilityof Insurance Agent or Broker On Ground of Inadequacy of LiabilityInsurance Coverage Procured, 60 A.L.R.5th 165 * 5 (2004).

The Plaintiff offered no evidence that St. Paul wrote tripinsurance as a stand alone form of insurance and no evidence thatCharter Lakes or another agency could have procured stand alonetrip insurance from other insurers. As such, the Plaintiffoffered no evidence of what terms and conditions such a policywould have contained and whether such insurance, if available,would have covered the GINA's damages. Moreover, there is noevidence that the Plaintiff's more extreme position, that tripinsurance with "no other restrictions" would have been issued byany insurer, including St. Paul. His claim, therefore, fails as amatter of law.9

B. Uberrimae Fidei

1. The Contract Claim

A breach of contract claim consists of the following elements:(1) there was an offer; (2) there was an acceptance of thatoffer; (3) there was consideration by each of the parties; and,(4) there was a meeting of the minds, or mutual assent. SeeSearles v. Trustees of St. Joseph's College, 1997 ME 128, ¶ 13,695 A.2d 1206; Dom J. Moreau & Son, Inc. v. Federal PacificElectric Co., 378 A.2d 151, 153 (Me. 1977). For a contract to beenforceable, "the parties thereto must have a distinct and commonintention which is communicated by each party to the other." Stanton v. Univ. of Maine Sys., 2001 ME 96, ¶ 13,773 A.2d 1045. Further, "the mutual assent to be bound by all of itsmaterial terms must be reflected and manifested either expresslyor impliedly in the contract and the contract must besufficiently definite to enable a court to determine its exactmeaning and fix any legal liability of the parties." JuneRoberts Agency v. Venture Props., 676 A.2d 46, 48 (Me. 1996).

An insured must disclose in an application for insurance allknown circumstances that materially affect the insurer's risks.Marchiori v. American Republic Ins. Co., 662 A.2d 932, 934 (Me.1995) (discussing misrepresentation under Maine insurance law).In maritime insurance, this rule is particularly stringent.Maritime insurance policies are "traditionally contractsuberrimae fidei and a failure by the insured to discloseconditions affecting the risk, of which he is aware, makes thecontract voidable at the insurer's option." Windsor Mount JoyMut. Ins. Co. v. Giragosian, 57 F.3d 50, 54 (1st Cir. 1995)(quoting Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311,316 (1928)). This doctrine imposes "a strict duty on the insuredto disclose to the insurer all known circumstances thatmaterially affect the insurer's risk, the default of which dutyrenders the insurance contract voidable by the insurer." Id.;N.Y. Marine & Gen. Ins. Co. v. Tradeline, L.L.C., 266 F.3d 112(2d Cir. 2001); Acadia Ins. Co., 151 F. Supp. 2d at 128 ("Underthis doctrine, every insured is under an obligation of `utmostgood faith' to disclose to the insurer all circumstances thatmaterially affect the insurer's risk."). In discussing thedoctrine of uberrimae fidei, Couch states that "good faith andthe requirements of the contract of insurance obligate theinsured to make a specific and full disclosure of all materialfacts of which the insured has, or ought to have, knowledge, andall circumstances known to him or her, and unknown to theinsurer, which materially affect the risk, even though no inquirybe made." Couch on Insurance 3d § 99:2. Under the federal maritime rule, if the insured is to recover,warranties in maritime insurance contracts must be strictlycomplied with, even if they are collateral to the primary riskthat is the subject of the contract. See Reliance Nat'l Ins. Co.(Europe) Ltd. v. Hanover, 246 F.Supp. 2d 126, 135-36 (D. Mass.2003), (citing Patrick J.S. Griggs, Coverage, Warranties,Concealment, Disclosures, Exclusions, Misrepresentations, and BadFaith, 66 Tul. L. Rev. 423, 431-32 (1991)). This rule of strictcompliance "stems from the recognition that it is particularlydifficult for marine insurers to assess risk, such that insurersmust rely on the representations and warranties made by insuredsregarding their vessels' condition and usage." Id. (quotingCommercial Union Ins. Co. v. Flagship Marine Servs.,190 F.3d 26, 31-32 (2d Cir. 1999); see also Atlantic Mut. Ins. Co. v.Balfour MacLaine Int'l (In re Balfour MacLaine Int'l),85 F.3d 68, 80-81 (2d Cir. 1996).

The standard for disclosure "is an objective one, that is,whether a reasonable person in the assured's position would knowthat the particular fact is material. To be material, the factmust be `something which would have controlled the underwriter'sdecision' to accept the risk. The assured's failure to meet thisstandard entitles the underwriter to void the policy abinitio." N.Y. Marine & Gen. Ins. Co., 266 F.3d at 123(prediction of severe rainy weather would have voided marineinsurance policy if not disclosed); Certain Underwriters atLloyd's v. Montford, 52 F.3d 219, 222 (9th Cir. 1995) (policyvoid due to misrepresentations about prior loss record, purchaseprice, and age of vessel); Knight v. U.S. Fire Ins. Co.,804 F.2d 9, 13 (2d Cir. 1986) (citations omitted) (no reasonablejuror could find that an insurer would not want to know of thecancellation of the insured's prior policy); Puritan Ins. Co. v.Eagle S.S. Co. S.A., 779 F.2d 866, (2d Cir. 1985) (failureaccurately to reveal prior loss history voids policy); PacificQueen Fisheries v. Symes, 307 F.2d 700, 707 (9th Cir. 1962)(contract void ab initio due to failure to reveal increased gasoline carrying capacity of vessel);Fireman's Fund Ins. Co. v. Wilburn Boat Co., 300 F.2d 631, 641(5th Cir. 1962) (misrepresentation as to intended use of vesselto carry passengers for hire was material to risk and voidedpolicy); Reliance Nat'l Ins. Co. (Europe) Ltd. v. Hanover,246 F. Supp. 2d 126, 137 (D. Mass. 2003) (policy void ab initio forowner's failure to reveal defects in vessel).

Ownership interests are material to assessing the risk in amarine insurance contract. See Cigna Prop. & Cas. Ins. Co. v.Polaris Pictures Corp., 159 F.3d 412, 420-422 (9th Cir. 1998),cert. denied 528 U.S. 815 (1999); El Fenix de Puerto Rico v.Gutierrez, 786 F. Supp. 1065, 1066 (D.P.R., 1991) (adoptingReport and Recommendation of Magistrate Judge, reported at1991 U.S. Dist. LEXIS 20857, *15 (D.P.R. 1991)); Washington Int'lIns. Co. v. Mellone, 773 F. Supp. 189, 192-93 (C.D. Cal. 1990);HIH Marine Servs. v. Fraser, 211 F.3d 1359, 1363 (11th Cir.2000); Couch on Insurance § 99:10 (the interest of the insured ina ship "may be of such a character that its concealment . . . ismaterial . . ."); but see Axa Global Risks (UK) Ltd. v. Pierre,2001 WL 1825853 (S.D. Fla. 2002).10

If a trip insurance contract existed, it would have beenvoidable, because Mr. Grande did not disclose to the Defendantseither his or his cousin's stake in the Gina. The Gina waspurchased with funds supplied by his cousin, Frank A. Grande; notFrank P. Grande. Frank A. Grande was on the Bill of Sale and onthe Purchase and Sale Agreement; Frank P. Grande was not. FrankA. Grande paid the insurance premium; Frank P. Grande did not.There was no written documentation that Frank P. Grande had anyownership interest in the GINA. The cousins had apparently agreed that, although repayment was nottied to Frank P. Grande's sale of his house in Waterville and theAPHRODITE, Frank P. Grande would repay his cousin and theyunderstood he had these properties up for sale. They also had anunderstanding that when Frank P. Grande got the GINA to Maine,the vessel would be formally placed in his name. At trial, FrankA. Grande conceded there was "a lot of faith and trust in thisparticular transaction" and it was "not ordinary."

Even if all these facts are accepted, 1) that Frank A. Grandeloaned Frank P. Grande the money to buy the GINA; 2) that FrankP. Grande was going to repay him; 3) that the ownership documentswere made out in Frank A. Grande's name only transitorily; 4)that title to the GINA would be transferred to Frank P. Grande inthe future; and, 5) that Frank P. Grande and Frank A. Grandeconsidered Frank P. Grande to be the owner, even as he leftFlorida, the doctrine of uberrimae fidei still requires FrankP. Grande reveal these facts to the potential insurer to allow itto assess its risk. M'Lanahan v. Universal Ins. Co.,26 U.S. 170, 185 (1828) (Story, J.). If he had done so and Defendants hadaccepted the risk, there would be no issue. Instead, Frank P.Grande not only failed to reveal facts material to the risk,namely the purchase and sale agreement and bill of sale were insomeone else's name and he had paid nothing for the vessel, buthe also affirmatively misrepresented he was the registered owner,when he was not.

This Court finds that, as a matter of law, the ownershipinterest of Frank P. Grande and Frank A. Grande are facts thatmaterially affect the insurer's risk. Frank P. Grande'smisrepresentation as to the status of ownership of the GINA, bothhis interest and his cousin's, materially affected the risk tothe Defendants, and the policy, if it had issued, would have beenvoidable. C. The Negligence and Equitable Estoppel Claims andUberrimae Fidei

The doctrine of uberrimae fidei applies to the negligence andequitable estoppel claims, but in a slightly different way. Theseclaims are based on the proposition that Charter Lakes breached aduty of due care to Frank P. Grande, because it failed to procureappropriate coverage and misled him as to the scope of existingcoverage. To sustain these claims, Frank P. Grande had to showother insurance exists that would have covered the loss and aninsurer would have written such coverage, if it had known thetrue facts of the GINA's ownership. The Plaintiff called aswitnesses only Frank P. Grande and Frank A. Grande and there wasno evidence that any insurer would have issued trip insurance toFrank P. Grande, if informed of the contingent and undocumentednature of his ownership interest and of the current anddocumented nature of his cousin's interest.


This Court orders that the Defendants' Motion for Judgment as aMatter of Law be GRANTED.


1. Rule 50 provides in pertinent part: (1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.Fed.R.Civ.P. 50.

2. Frank P. Grande had owned APRHODITE since October 1991 andinitially used the vessel solely for pleasure. He later began tocharter the vessel from Tenant's Harbor, Maine and was insuredprior to 2002-03 with St. Paul through Charter Lakes. However,because of the expense of coverage, he did not purchase insurancefor the year 2001-02 and when he obtained charter insurance for2002-03, he was treated as a new customer. Defendants' Exhibit13.

3. Frank A. Grande was originally a party Plaintiff in thiscase, but upon his motion, was dismissed with prejudice afterjury selection.

4. Frank A. Grande's exact involvement in the purchase of theGINA, as will be seen, is difficult to characterize precisely.

5. The APHRODITE policy contained two territorial limits: 1) anavigational limit of no more than 100 miles off shore; and, 2)coverage only for the area between Eastport, Maine and St. Marys,Georgia. As the GINA was to be sailed from near Miami to Maine,the southern limit to the policy had to be removed for thistrip.

6. In his Opening, Mr. Savasuk distinguished between charterinsurance and trip insurance policies and he emphasized the agentassured him he had both types of insurance. Frank P. Grandetestified to the same thing. During argument on the Rule 50motion, Mr. Savasuk agreed the claim "is not under the policythat was issued" and "the charter insurance policy is not thepolicy that is applied in this case." He explained "the contractthat they entered into is that they were going to provideinsurance as quoted." Other than the general restriction that thevessel was covered for a trip from Florida to Maine, Mr. Savasukcontended the trip insurance policy contained "no otherrestrictions." At one point during the argument, Mr. Savasukseemed to change tacks and sail with the prevailing wind, sayinghe was claiming under the charter contract as well; however,having argued only the trip insurance theory in his Opening andhaving presented evidence solely on that theory, he laterreturned to the basic premise that the Defendants were requiredto provide trip insurance from Florida to Maine withoutrestriction. The Plaintiff's decision to proceed only on the trip insurancepolicy theory and not under the charter policy endorsement mayhave been a wise one. The trip endorsement was made part of theunderlying policy and the 100 mile navigational limit was stillin force. Although the Plaintiff argued he was blown off courseby water spouts and exceeded the navigational limits only to savelife and property, the GPS coordinates may have placed the GINAoutside the 100 mile limit just before the water spouts wereencountered and it appeared the GINA remained outside the limitsfor a substantial period after the danger had passed. The rescuewas necessitated primarily by a shredded lower stay and roughweather. If the charter policy were applicable, the Plaintiff mayhave faced insurmountable problems of proof and this may explainhis strategic decision to argue the Defendants had agreed toissue a separate trip policy without any such limits. In anyevent, having elected his cause of action, he could not seek tosurvive the Rule 50 motion by changing theories after he had puthis case in, since the Defendants had relied on his election indefending the case.

7. The insurance binder Charter Lakes issued on behalf of St.Paul is an example of what a binder is. Defendants' Exhibit 10.It states that the binder is "a temporary insurance contractsubject to the conditions shown at the bottom of this form." Thebottom of the form expressly states that the insurance contractis "subject to the terms, conditions and limitations of thepolicy (ies) in current use by the company." Id. at 2.

8. This phrase is Mr. Savasuk's at oral argument on the Rule50 motion.

9. This ruling applies with equal force to the negligence andequitable estoppel claims, because the Plaintiff would still haveto show causation under any legal theory: that there would havebeen coverage available that would have paid the loss if not forthe acts of the Defendants.

10. In Axa, the insurer argued that since the insured failedto disclose the fact his wife was the true owner of the vessel,the policy was null and void. Axa noted, however, that theinsurance application asked for the named insured, but not forthe name of the owner of the vessel, so in completing theapplication, the insured had not misrepresented ownership. Axaat * 5. Also, the Court was skeptical of the insurer's contentionthat if it had known the insured's wife owned the vessel, itwould not have issued coverage. Id. at * 5-6. On its fact,Axa is distinguishable from the instant case.

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