Barry Zalma, Inc. on Insurance Law

Ambiguous Policy Wording Results in Adoption of Continuous Trigger of Coverage The United States Court of Appeals for the Fourth Circuit certified a question to the Supreme Court of Appeals of West Virginia asking: "[a]t what point in time does bodily injury occur to trigger insurance coverage for claims stemming from chemical exposure or other analogous harm that contributed to the development of a latent illness?" In Westfield Insurance Company v. Sistersville Tank Works, Inc.; et al, No. 22-848, Supreme Court of Appeals of West Virginia (November 8, 2023) the Court answered the question. The Supreme Court answered the question with the conclusion that a "continuous-trigger" theory applies to the policy, as the policy is ambiguous as to when coverage is triggered. OPINION The gateway to coverage under every standardized, commercial general liability (or "CGL") policy issued in the United States since 1966 is proof that a bodily injury or property damage has "occurred." FACTUAL BACKGROUND Sistersville Tank Works ("STW") has, since late 1984, been a family-owned and -operated West Virginia corporation. STW manufactures, installs, and repairs various types of tanks at industrial sites throughout world, including at several chemical plants in West Virginia. Beginning on the first day of 1985, STW was protected under a commercial general liability ("CGL") policy it purchased from Westfield Insurance Company ("Westfield"), an Ohio corporation. Westfield thereafter renewed STW's coverage under a series of CGL policies with one-year (or more) coverage periods. The CGL policy defines a "bodily injury" as a "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." At different points in 2014, 2015, and 2016, three men were diagnosed with various forms of cancer. In 2016 and 2017, the "claimants" (the men with cancer and/or their spouses) sued STW in three separate lawsuits in West Virginia state courts. The claimants alleged the cancers were, in some part, caused by STW's tanks. STW asked Westfield to provide a defense and indemnification to the three lawsuits under its previously purchased CGL policies. Westfield denied coverage under its CGL policies for the three suits and, in June 2018, filed a complaint against STW for declaratory relief and after discovery, the parties filed competing motions for summary judgment. In an order dated September 4, 2020, the district court granted a judgment in favor of STW and found Westfield owed STW a duty to defend and to indemnify under all of its policies issued from 1985 through 2010. The district court concluded that Westfield's promise to cover a bodily injury that "occurs during the policy period" was ambiguous in light of the latent disease claims asserted against STW. The district court ruled that the language in Westfield's policy did not clearly identify when coverage was "triggered" in instances where a claimant alleged repeated chemical exposures and the gradual development of a disease over successive policy periods. The Supreme Court had never addressed the question raised before the district court. Nevertheless, the district court calculated that this Court would apply the continuous-trigger theory to clarify the ambiguous language in Westfield's policy. DISCUSSION Occurrence-based CGL policies provide coverage if the event insured against takes place during the policy period, irrespective of when a claim is presented. The certified question raises a different, more complicated set of circumstances. Westfield contends that manifestation of a disease is the sole trigger of coverage under its occurrence-based CGL policies. On the other hand, STW takes the position that the occurrence language incorporates a "continuous" trigger theory of coverage. STW's argument encompasses the entirety of Westfield's insuring agreement. STW points out that, by definition, an "occurrence" under Westfield's policy includes "continuous or repeated exposure" to a "harmful condition []" that results in "bodily injury, sickness or disease." It is evident from the parties' competing positions that the meaning of the policy's insuring agreement is uncertain or doubtful in the context of latent or progressive diseases, as the parties have shown the occurrence language used is susceptible to at least two plausible constructions. Here, the occurrence and bodily injury provisions that Westfield chose to incorporate into its insuring agreement fail to precisely articulate a trigger of coverage. They are, the Supreme Court concluded, ambiguous. History shows that the "occurrence" language incorporated into the CGL policy was designed with the goal of affording coverage for singular, repeated, or continuous exposures to hazardous substances if those exposures cause either a singular or a progressive bodily injury, sickness, or disease. The Supreme Court concluded, after review of the history of the drafting of the CGL, that the drafters of the occurrence language used by Westfield intended to incorporate a continuous trigger of coverage. The Policy Language Supports A Continuous Trigger The reasoning of the Supreme Court’s recognition of the continuous trigger of coverage has the effect of spreading the risk of loss widely to all of the occurrence-based insurance policies in effect during the entire process of injury or damage. As one court said, the continuous trigger theory is the most efficient doctrine for allocation of liability amongst insurers for toxic waste cases, because it encourages all insurers to monitor risks and charge appropriate premiums. Therefore, an occurrence based CGL policy covers all injuries, sicknesses, or diseases that occur during coverage, not merely those that become manifest. Under the continuous-trigger theory, when a claim is made alleging a progressive injury caused by chemical exposure or other analogous harm, every occurrence-based policy in effect from the initial exposure, through the latency and development period, and up to the manifestation of the bodily injury, sickness, or disease, is triggered and must cover the claim. ZALMA OPINION It is axiomatic that when a court finds an ambiguity in an insurance policy it must be interpreted in favor of coverage for the insured. West Virginia found the policy was ambiguous as to trigger and therefore, overruling a strenuous dissent, and applied the continuous trigger expanding the coverages available to STW for the claims of the plaintiffs that STW was responsible for the illnesses because under the continuous-trigger theory of coverage every moment from the first exposure to the harmful chemicals up to and including the date of diagnosis would be covered by Westfield's policy. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Plea of Guilty of Murder for Insurance Cannot Be Withdrawn In State Of Ohio v. Darin Brusiter, No. 112410, 2023-Ohio-3794, Court of Appeals of Ohio, Eighth District, Cuyahoga (October 19, 2023) Darin Brusiter ("Brusiter") appealed for the third time from the trial court's denial of his post-sentence motion to withdraw his guilty plea. FACTS In April 2011, Brusiter was charged with two counts of aggravated murder, with murder-for-hire and firearm specifications, kidnapping, insurance fraud, and tampering with evidence in relation to the killing of Asia Harris ("Harris"). Harris's husband Samuel Wilson was also charged in the same indictment. Brusiter filed a motion to suppress the statements he made to the police as being in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On May 2, 2012, the court denied Brusiter's motion and that same day he pled guilty to one count each of aggravated murder, kidnapping, insurance fraud, and tampering with evidence. The court sentenced Brusiter to an agreed term of "33 years to life" in prison. Brusiter filed a direct appeal of the trial court's denial of his motion to suppress and the Court of Appeals earlier affirmed Brusiter's convictions, finding that he waived his right to appeal pretrial rulings when he pled guilty. In finding that Brusiter waived his right to challenge the denial of his motion to suppress, the Court of Appeals also concluded that "the record on appeal affirmatively demonstrates that [Brusiter] entered a voluntary, knowing and intelligent guilty plea as required by Crim.R. 11." Brusiter filed a second motion to withdraw guilty plea. In this motion, Brusiter argued that there are two, apparently specious, reasons he should be allowed to withdraw his guilty plea. The trial court summarily denied both motions to withdraw guilty plea ANALYSIS Appellate courts review a trial court's ruling on a motion to withdraw a guilty plea for an abuse of discretion. The presumption of prejudice recognized in precedent applies regardless of whether a defendant has signed an appeal waiver. Brusiter's 2020 motion to withdraw his guilty plea, which alleged ineffective assistance of counsel and the improper denial of his motion to suppress, is barred by the doctrine of res judicata. Brusiter filed a direct appeal in which he challenged the trial court's denial of his motion to suppress. The Court of Appeals three times affirmed Brusiter's convictions, finding that he waived his right to challenge the denial of his motion to suppress by pleading guilty. The Court of Appeals also found that Brusiter's guilty plea was voluntary, knowing, and intelligent. Therefore, the trial court did not abuse its discretion by denying Brusiter's motion to withdraw his guilty plea without holding a hearing. The motion was filed almost nine years after he pled guilty to aggravated murder and other offenses associated with the death of Harris. ZALMA OPINION Although life insurance fraud by murder is a seriously and violent crime Mr. Brusiter decided it was important to plead guilty with a guaranteed sentence of only 33 years rather than a death sentence, he abused the kindness of the courts of Ohio by filing multiple motions and appeals to withdraw his plea. Since he's in jail for at least 20 more years it made no sense to punish him further or seek monetary sanctions he could not pay, but any further appeals or motions should be summarily dismissed without an opinion. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

The Florida Supreme Court was asked to resolve a certified question from a lower court about whether a personal injury damages award must be reduced by a payment the plaintiff received to settle a bad faith claim against his uninsured motorist insurance carrier. In Alberta S. Ellison v. Randy Willoughby, No. SC2021-1580, Supreme Court of Florida (November 2, 2023) the Supreme Court answered the questions posed. FACTS Respondent/plaintiff Randy Willoughby was badly injured in a car crash. After the accident, he sued Petitioner/defendant Alberta Ellison, bringing a vicarious liability claim based on Ellison's co-ownership of the other car in the crash. Willoughby also sued his own uninsured motorist insurance carrier to recover policy benefits and for statutory bad faith damages. Willoughby and his insurer settled before trial for $4 million. The subsequent trial against Ellison resulted in a $30 million jury verdict for Willoughby. Ellison then asked the trial court to set off the $4 million insurance settlement against the damages award, but the court denied the motion. The Second District Court of Appeal affirmed the denial of the set off request. It also certified this two-part question as one of great public importance. Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to set off under section 768.041(2) or a collateral source within the meaning of section 768.76? The court answered no to both parts of the question, holding that neither statute authorized a set off in this case. The Second District explained that, writing on a blank slate, it would have found Ellison entitled to a set off under section 768.041(2), but it decided that the Supreme Court's case law precluded that result. Based on the parties' arguments and the Supreme Court's review of the record, the Supreme Court determined that Ellison did not ask the trial court for a set off under section 768.041(2) and refused to consider the issue. The Supreme Court rephrased the question posed to it to read: “Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim a collateral source within the meaning of section 768.76(2)(a)2.?” Although Willoughby sued his uninsured motorist insurance carrier both for the $10,000 limit allowed under his policy and for bad faith damages, his $4 million insurance settlement was undifferentiated (as to claims and categories of damages). Subject to certain exceptions, section 768.76(1) mandates damage award reductions for sums that the plaintiff has received from "collateral sources." The Supreme Court noted that bad faith damages are not "benefits" for purposes of the collateral source definition in section 768.76(2)(a)2. First-party bad faith claims like Willoughby's are a creature of statute, not of the underlying insurance contract between the parties. In particular, the damages recoverable in an uninsured motorist insurance bad faith claim are set out in a statute to be "the total amount of the claimant's damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of a law of this state." The Florida Supreme Court characterized statutory bad faith damages as a penalty. By "extracontractual," the Supreme Court meant that first-party bad faith damages are over and above the amount owed pursuant to the express terms and conditions of the policy after all of the conditions precedent of the insurance policy in respect to payment are fulfilled. The Supreme Court answered its rephrased question with a "no" and concluded that a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim is not a collateral source and the judgment could not be offset. ZALMA OPINION The $30 Million verdict was not offset by the $4 Million bad faith settlement. Randy Willoughby was entitled to collect, if possible, the full $34 million in damages and punishment damages. The Supreme Court wisely concluded that punishment damages were not damages for bodily injury and could not be used to reduce the trial court's verdict in the bodily injury suit. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Charge of Insurance Fraud, if True, Not Defamatory In RMS Insurance Services, Inc., d/b/a Flanders Insurance Agency, and Owen G. Costanza, an Individual v. Donald G. Sattler, an Individual, Marion L. Thornberry, an Individual, Elisabeth M. Rodgers, an Individual, and Cheryl Russell-Smith, an Individual, No. 4-23-0143, 2023 IL App (4th) 230143-U, Court of Appeals of Illinois, Fourth District (October 17, 2023) a suit claim of defamation by a politician failed. THE SUIT Plaintiffs RMS Insurance Services, Inc., d/b/a Flanders Insurance Agency (Flanders), and Owen G. Costanza, in his individual capacity, filed a 17-count complaint against defendants Donald G. Sattler, Marion L. Thornberry, Elisabeth M. Rodgers, and Cheryl Russell-Smith. Defendants Sattler, Thornberry, and Rodgers filed a motion for summary judgment asking the court to dismiss plaintiffs' first amended complaint with prejudice the court granted defendants' motions and dismissed plaintiffs' entire amended complaint with prejudice. BACKGROUND According to plaintiffs' complaint, Costanza was the former president of the Village of Poplar Grove. During the 2020 election, Sattler ran against Costanza for the office of village president. Costanza was the incumbent village president at that time. The complaint outlined animosity that existed between Costanza and defendants prior to and after the election. Plaintiffs alleged defendants made defamatory statements about Costanza including accusations Costanza committed criminal acts, including insurance fraud. Sattler defeated Costanza in the election. However, plaintiffs alleged defendants continued to post the allegations against Costanza after the election was over. The trial court (Judge Stephen E. Balogh presiding) found plaintiffs alleged the three defendants wanted to ruin Costanza's career in local politics. The crux of the defendants' motion for summary judgment is that their statements are all privileged because those statements are indisputably, materially and substantially true. Under Illinois law, recovery for a defamatory statement in this case will only be allowed if there is a showing of actual malice. This requires proof by the plaintiff that has established both that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. The trial court indicated it was undisputed that Costanza had been accused of, administratively disciplined for, and fired for committing fraud in the general sense of the word while working in the insurance industry. Costanza had a misdemeanor criminal record and has engaged in fraud, as that term is generally understood, in his work as an insurance professional. ANALYSIS When a party moving for summary judgment supplies facts which, if not contradicted, would entitle the moving party to a judgment as a matter of law, the nonmoving party may not rely on his pleadings alone to raise issues of material fact. A plaintiff must present a factual basis that would arguably entitle the plaintiff to a judgment. Applicable Law To state a defamation claim, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages. Qualified Privilege Even if a statement is defamatory, the statement cannot support a defamation claim if it is true. Regardless, even if a defamatory statement is not substantially true, the statement is not actionable if protected by a qualified privilege. Courts must look at the alleged defamatory statements in context, giving the words of the statement, and any implications arising from them, their natural and obvious meaning. The Court of Appeal concluded that the plaintiffs failed to establish the trial court erred in examining all of the statements made in the flyer. The foundation for all of plaintiffs' claims in their amended complaint was defendants' alleged defamation. As a result, defendants' motion for summary judgment challenged all of plaintiffs' claims. Plaintiffs failed to establish the trial court erred in granting defendants' motion for summary judgment as to the entire amended complaint. ZALMA OPINION Accusing a person of the crime of insurance fraud is per se defamatory. However, if, as in this case, the charge is true the defamation charge fails. Costanza was not convicted of the crime of insurance fraud but lost his license to act as an insurance agent as a result of insurance fraud and was disciplined for the acts. Since the charge was true there was no way for Costanza to succeed in his defamation suit. Politics, Mr. Costanza, learned is a dirty game and will succeed if the allegations against him of insurance fraud was true. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Excess Insurer Owes Nothing Until Primary Insurer's Limits Are Exhausted Vizio, Inc. appealed the district court's order granting Arch Insurance's motion to dismiss. Arch issued an insurance policy to Vizio and provided coverage excess to Navigators Insurance's primary policy, meaning that Arch only covered losses that exceeded the $5 million limit of the Navigators Policy. The Arch Policy "followed form" to Navigators' policy, so it has the same terms except for those specifically contradicted by the Arch Policy. Vizio also had a separate line of general liability coverage with Chubb. In VIZIO, INC. v. ARCH INSURANCE COMPANY, et al., No. 22-55755, United States Court of Appeals, Ninth Circuit (October 30, 2023) Vizio sought coverage from an excess insurer after reaching a settlement with plaintiffs in a class action suit without first getting permission from the excess insurer. FACTS After consumers filed class action lawsuits against Vizio in connection with its Smart TV products (the "Smart TV Litigation"), Vizio notified both Navigators and Arch of its potential insurance claims in a February 2016 email. Arch requested more information, while Navigators denied coverage, citing a policy exclusion. Vizio twice forwarded Navigators' denial letter to Arch, but Vizio never provided Arch with any substantive updates about the Smart TV Litigation. Arch, in turn, failed to convey a coverage decision, though internal records show that Arch decided to deny coverage. About two years later, without seeking or receiving Arch's consent, Vizio settled the Smart TV Litigation for $17 million. On Arch's motion the district court dismissed Vizio's fourth amended complaint with prejudice, holding (among other things) that Vizio failed to properly notify Arch of its claim after the underlying policy limit was exhausted. The District Court Erred In Holding That Providing Notice Prior To Exhaustion Was Improper. Finding that notice was given the district court incorrectly concluded Vizio failed to give proper notice but rightly determined that Arch at that time had no duty to defend or indemnify because the primary policy limit had not yet been exhausted. Vizio's February 2016 email was adequate notice. Vizio Failed To Comply With The Consent Provision Before Settling. First, Vizio admits that it did not obtain Arch's consent prior to settling the Smart TV Litigation as required under the Arch Policy. Since a following form excess policy has the same terms and conditions as the underlying primary policy and, therefore, the Navigators Policy's consent provision is incorporated into the Arch Policy. Second, Vizio argues that Arch's policy conflicts with Navigators' policy. Not so. Lastly, Vizio argues that, if the consent provision applies, Vizio was excused from performing because Arch allegedly breached the policy first by not properly responding to Vizio's February 2016 email. However, Vizio failed to allege facts that would plausibly show that Arch breached any of its duties under the policy. Moreover, even if Arch breached the policy as alleged, this would not excuse Vizio from seeking Arch's consent to the settlement. ANALYSIS Insurance contracts in the state of California incorporate the terms of California's insurance regulations. Vizio relies on California Code of Regulations Title 10, Section 2695.7(b) for the proposition that an insurer's failure to accept or deny a claim within 40 days of tender is a breach of the insurance policy. But Section 2695.7(b) only applies after an insurer receives a "proof of claim," which is defined as evidence of a claim that "reasonably supports the magnitude or the amount of the claimed loss." 10 C.C.R. § 2695.2(s). A "notice of claim" is not a proof of claims. Vizio's February 2016 email to Arch was a notice of claim, not a proof of claim. Vizio also alleged Arch breached the contract when it internally denied coverage and never informed Vizio. Arch's alleged breach would only excuse Vizio's non-consensual settlement if Vizio had requested and been denied coverage. But Arch never informed Vizio that it would deny coverage, and Vizio never followed up or provided Arch with any substantive updates about the Smart TV Litigation. Thus, Vizio, having never been notified of a denial of coverage, still had an obligation to obtain Arch's consent to any settlement, notwithstanding Arch's alleged breach. Without notice, Arch was denied the opportunity to participate in the settlement negotiations, which the insurance contract established as a prerequisite to Arch's duty to pay. Vizio's Claim For The Breach Of The Implied Covenant Of Good Faith And Fair Dealing Fails. Under California law, without a breach of the insurance contract, there can be no breach of the implied covenant of good faith and fair dealing. Because Vizio breached the policy by not soliciting Arch's consent prior to settlement, no benefits were due, and Arch therefore did not breach the contract. Vizio's Equitable Contribution Claim Fails. Equitable contribution is the right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution. However, as a general rule, there is no contribution between a primary and an excess carrier. Arch was indisputably an excess insurer because it only had an obligation to indemnify Vizio once the $5 million limit of the Navigators Policy was exhausted. ZALMA OPINION The Ninth Circuit read the two policies: the primary and the following excess policy. Both policies required that the insured advise the insurers of their intent to settle, obtain permission from the insurer, or lose the right to indemnity. The settlement of the class action may have been a wise decision by Vizio but its failure to seek the participation and consent of Arch cost them any possibility of obtaining contribution from Arch and deprived Arch of the ability to reject coverage or pay. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Not Wise to Burden Appellate Court with Multiple Frivolous Motions\ After appellant Donya Entertainment, Inc. noticed a "very significant . . . water intrusion" in a restaurant it had owned and operated for several months, Donya submitted a claim to its insurer, respondent Farmers Insurance Exchange. Farmers denied the claim, asserting it was not covered under Donya's policy. Donya sued Farmers alleging Farmers insufficiently investigated the claim before denying it. Farmers moved for summary judgment, arguing that the policy excluded claims for water seepage that had been occurring for 14 days or more, and the undisputed evidence demonstrated the water seepage had been occurring for at least a year. The trial court granted Farmers' motion, holding there could be no liability for a defective investigation if there was no coverage under the policy. In Donya Entertainment, Inc. v. Farmers Insurance Exchange, B315381, California Court of Appeals (October 27, 2023) the Court of Appeals dealt with multiple incompetent appellate motions and ruled in favor of Farmers. FACTUAL BACKGROUND In May 2020, Donya sued Farmers, alleging that Donya operated a franchise restaurant in Rancho Cucamonga. Donya claimed it purchased the operation from Bacon-Up Corporation in July 2019. Donya alleged Bacon-Up had an insurance policy issued by Farmers when it operated the restaurant, and that Donya had also insured itself with Farmers "under policy number 0606749543," which "provided coverage for Donya with respect to losses caused by water intrusion." Several months after Donya began operating the restaurant, "a very significant experience of water intrusion occurred [,] adversely affecting the kitchen and dining areas." Donya submitted a claim to Farmers. Donya also alleged that "during this time," it learned the restaurant "had experienced similar water intrusion during the ownership and operation" of Bacon-Up, and that Bacon-Up "had made alterations to the physical structure of the flooring in relation to that previous water intrusion." In July 2020, Farmers filed its verified answer. Farmers Moves for Summary Judgment In February 2021, Farmers moved for summary judgment. As to Donya's claim on its own insurance policy, Farmers contended "[t]here can be no tort liability in the absence of coverage" and "the undisputed material facts establish that no coverage exists under the Policy" for Donya's claim. Farmers claimed that the water leaking had been going on for at least a year before Plaintiff reported it." As to Donya's claim against Farmers on Bacon-Up's policy, Farmers argued the obvious: that "a third-party claimant cannot sue the insurer of its litigation adversary for breach of contract or bad faith, or failure to properly investigate." Relevant here are the "Back Up of Sewers or Drains Coverage Endorsement" and the "Limited Coverage for Fungi, Wet Rot, Dry Rot and Bacteria." The former added coverage for "water that . . . backs up or overflows from your sewer or drain" and deleted a provision in the "Exclusions" section excluding such coverage. The latter added an exclusion for "Continuous or repeated seepage or leakage of water . . . that occurs over a period of 14 days or more." Farmers also submitted declarations from three employees of the restaurant who had been employed when it was operated by Bacon-Up. Each of these employees attested that Bacon-Up had concealed from Donya "physical defects that existed at the franchise location, including a very serious water leak coming up from under the slab in the kitchen area going out to the first table in the dining area." These declarations corroborated allegations in Donya's federal complaint that, prior to Donya's purchase of the restaurant, the "restaurant building was contaminated from sewage spills through failing plumbing" and such defects were concealed from Donya. In its sworn pleading, Donya admitted that the claim it submitted on its own policy "alleged that the previous owner of the restaurant location intentionally tampered with the subject restaurant location's plumbing . . . causing the dysfunction resulting in the loss suffered by Donya," but claimed this would be a "covered loss." That sworn statement worked to prove the exclusion applied. The court granted Farmers' motion. Finally, the court found Donya provided no evidence to support a claim against Farmers for denying its claim on Bacon-Up's policy. DISPOSITION The judgment was affirmed. Respondent was awarded its costs on appeal. Respondent was additionally awarded $6,466 in sanctions against Donya's counsel, Amir Pasha Vafaei, only for filing frivolous motions to the Court of Appeals. ZALMA OPINION When I was a young adjuster in 1968-1972 I had to advise insureds there could be no coverage for losses due to water intrusion that had continued for more than 14 days. It was a logical exclusion to help an insured understand the need to properly maintain their property. No one was happy with the decision. Donya admitted in its pleading, plus the testimony of three employees, that the water leaks had been going on for more than a year before the claim was made. The decision of the trial court was affirmed and because Donya's counsel was punished for using frivolous or inept motions to the court of appeal on a case where the insured and insurer obviously knew there was no coverage. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Statute of Limitations Bars Bad Faith Action PPO Health Insurance Policy Refusal to Pay Starts Running of Statute of Limitation In Christina Terry, individually and on behalf of her minor child, G.T., and on behalf of all others similarly situated v. Health Care Service Corporation, a mutual legal reserve company, d/b/a Blue Cross and Blue Shield of Oklahoma, No. 21-6141, United States Court of Appeals, Tenth Circuit (October 27, 2023) the Tenth Circuit dealt with the Oklahoma Statute of Limitations. THE POLICY A "preferred provider organization" or PPO health insurance plan consists of "networks" made up of healthcare practitioners, facilities, and affiliates who contract with health insurance companies such as Blue Cross and Blue Shield of Oklahoma (BCBSOK) to provide its insureds medical services. Known as "preferred providers," these practitioners, facilities, and affiliates offer healthcare services to PPO policyholders at reduced rates. Preferred providers accept a previously negotiated price from the insurer as payment for covered services. The insured is not responsible for the difference if a preferred provider bills more than the allowable charge. The policy informs the insured that where the policy's allowable charge for a non-contracting provider is less than such provider's billed charges, the insured is responsible for the difference. And according to the policy, "[t]his difference may be considerable." FACTS & THE CLAIM Due to G.T.'s precarious condition, his doctor recommended G.T. be transported via air ambulance to the University of Oklahoma's Children's Hospital in Oklahoma City. Rocky Mountain Holdings (RMH) transported G.T. and billed charges of $49,999.00 for the 109-mile trip. Plaintiff filed a putative class action against BCBSOK on April 27, 2018, alleging breach of contract, bad faith, and fraud. She invoked the district court's diversity jurisdiction by way of her putative class action. The court granted BCBSOK's motion and entered judgment in its favor. The district court held the policy's limitations provision barred Plaintiff's breach of contract claim. The Tenth Circuit noted that a reasonable insured, who by definition has performed due diligence, could readily ascertain from the foregoing language that Plaintiff filed her breach of contract claim later than three years after the expiration of the time within which her policy required her to file an insurance claim. Plaintiff was aware, or certainly should have been aware, of an injury-that is, BCBSOK would not meet her demands-at the time RMH, the emergency air service responsible for transporting her infant, had a garnishment order issued against her in February 2016. Having established Plaintiff's knowledge of an injury, the next inquiry is at what point could Plaintiff have become aware of facts establishing her causes of action for fraud and bad faith. Because Plaintiff's claim rests in large part on the terms of her PPO policy, once she realized her injury, nothing prohibited her at that point from pursuing her bad faith claim based upon the wording of the policy and BSBSOK alleged representations regarding coverage, both of which she says entitle her to relief. Plaintiff argued that BCBSOK was exercising bad faith throughout her ordeal and did not stop until just before she filed suit in April 2018. The plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief. Because Plaintiff's bad faith claim accrued no later than February 2016, the Oklahoma two-year statute of limitations bars such claim. ZALMA OPINION Even health insurance policies are contracts and are contracts subject to state statutes of limitation. Regardless of the conduct of the insurer - even if in bad faith - the insured must file her suit within the times allowed by the state's statutes of limitation. Plaintiff waited too long and it was not enough to claim that the insurer BCBSOK treated her badly by applying its contract as written. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/s... or at substack at https://barryzalma.substack.com/publi... Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?... Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claim...

ZIFL Volume 27, Issue 21 The Resource for the Insurance Claims and Insurance Fraud Professionals What a Great Country! This article a fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is posted to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ­­­Perpetrators than any Other Crime. How Insurance Fraud Can Succeed Wo Ping Chen was trained as a physician in Hong Kong. Until Hong Kong was returned by the United Kingdom to the Peoples Republic of China, he was the best-known Orthopedist in the Crown Colony. Fearing problems with the new government he emigrated to Vancouver, British Columbia, Canada as a citizen of the commonwealth. He worked as an employee of the National Health Service for a year and then obtained a work visa to the U.S. and crossed the border into the U.S. only to find he could not work as a physician without a license from a U.S. state and attended a U.S. based medical school. After one year of medical school, one year of internship in a Seattle hospital and one year as a resident Chen was able to restart his life. Read this article and the full 20 pages of this issue at ZIFL in pdf More McClenny Moseley & Associates Issues This is ZIFL’s seventeenth installment of the saga of McClenny, Moseley & Associates and its problems with the federal courts in the State of Louisiana and what appears to be an effort to profit from what some Magistrate and District judges indicate may be criminal conduct to profit from insurance claims relating to hurricane damage to the public of the state of Louisiana. Access Restoration Services U.S., Inc. and MMA Scheme Alleged in Detailed New Orleans Court Pleading and more. Read this article and the full 20 pages of this issue at ZIFL in pdf After Avoiding Prison Fraudster Appeals Unsuccessfully False Lightning Strike Claim Results in Fraud Conviction Sara Weisbeck appealed her convictions for insurance fraud: false material information and identity theft over $1500 and under $10,000, both class “D” felonies. In State of Iowa v. Sara Jo Weisbeck, No. 22-1068, Court of Appeals of Iowa (October 11, 2023) considered her pleas for mercy. Read this article and the full 20 pages of this issue at ZIFL in pdf Health Insurance Fraud Convictions Tampa Pain Management Physician Edward Lubin Agrees to Pay $1.5 Million To Settle False Claims Act Liability for Receiving Bribes and Writing Unnecessary Fentanyl Prescriptions Edward Lubin, a pain management physician agreed to pay the United States $1.5 million to resolve allegations that he violated the False Claims Act (FCA) by causing the submission of claims for fentanyl prescriptions that were written in exchange for kickback payments and that were medically unnecessary. The agreement resolves the United States’ claims against Dr. Lubin under the FCA. The claims resolved by the settlement are allegations only, and there has been no admission or determination of liability. Read this article, and dozens convictions and the full 20 pages of this issue at ZIFL in pdf Read this article and the full 20 pages of this issue at ZIFL in pdf at http://zalma.com/blog/wp-content/uploads/2023/10/ZIFL-11-01-2023.pdf Read this article and the full 20 pages of this issue at ZIFL in pdf Other Insurance Fraud Convictions Claims Adjuster Will Serve Prison Time for Fraud Scheme Paul Richard Massey, of Shady Spring, West Virginia, a former Allstate claims adjuster, will spend one year and a day in prison, forfeit his beach house and pickup truck to the federal government after pleading guilty to wire fraud and money laundering. Federal prosecutors alleged that 51-year-old Massey issued 68 fraudulent checks from Allstate accounts totaling $862,871.29 while he worked as a claims adjuster in 2018 and 2019. Massey had settlement authority for up to $100,000 in his position with Allstate. Read this article, and dozens convictions and the full 20 pages of this issue at ZIFL in pdf Crime Does Not Allow Insurer to Pay Withholding Coverage for Criminal Acts Disincentivizes Criminal Conduct Safeway Insurance Company sought supervisory writs from the judgment of the lower court which denied its motion for summary judgment. In Damien Harris v. Safeway Insurance Company Of Louisiana And Justin Rossette, No. CW 23-165, Court of Appeals of Louisiana, Third Circuit (October 25, 2023) the Louisiana Court of Appeals resolved an insurance coverage dispute over a criminal acts exclusion. Read this article and the full 20 pages of this issue at ZIFL in pdf (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this Newsletter, blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library

Routine Business Not Protected Work Product In Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., et al., No. 2:17-cv-01515-KJM-AC, United States District Court, E.D. California (October 25, 2023) an insurance coverage dispute wastes the time of the court and are admonished by the court. FACTUAL BACKGROUND In a long-running insurance coverage dispute that was prolonged for several years by defendant Global Aerospace Inc.'s refusals to produce evidence in response to requests from plaintiff Aerojet Rocketdyne, Inc. The root of the disagreement was Global's assertion of attorney-client privilege and work-product protections. The Magistrate Judge determined the disputed evidence was not protected by the attorney-client privilege or work product doctrine, and the court denied Global's repeated requests to revisit that decision. In short, although attorneys were involved in the disputed investigation, communications with them were not privileged, and their work product was not protected; the investigation was part of the company's routine business. It was not conducted in anticipation of litigation. Several defendants, including Global, have now moved for summary judgment. Briefing is ongoing. The exhibits are excerpts of transcripts from two depositions marked “confidential” under the terms of a discovery protective order. The witnesses were Katherine Posner and Wendy Grossman, two attorneys at the center of the dispute about privilege and work product. The defendants argued the transcripts are “sensitive” and must be sealed because they “would ordinarily be protected by the attorney-client privilege and work product doctrine.” The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. Although that right is not absolute, a strong presumption in favor of access is the starting point. This presumption is based on the need for federal courts, although independent-indeed, particularly because they are independent-to have a measure of accountability and for the public to have confidence in the administration of justice. When documents are filed with motions more than tangentially related to the merits of a case, such as alongside a motion for summary judgment, a party who asks to keep them secret must meet the high threshold of showing that compelling reasons that support that request. This standard applies even if the documents have previously been filed under seal or are covered by a generalized protective order, including a discovery-phase only protective order. To decide whether the party requesting sealing has carried its burden, the court balances the requesting party's reasons for secrecy with the public's interests in disclosure. If a court decides to grant a request to seal, it must explain its reasons and may not rely on hypothesis or conjecture. The District Court concluded that the defendants have not justified their request to seal the deposition transcript excerpts in question. They cannot rely on the confidentiality designation now. Once confidential discovery documents are made part of a dispositive motion, such as a motion for summary judgment, they lose their status of being raw fruits of discovery. They no longer enjoy protected status without some overriding interest in favor of keeping the discovery documents under seal. DOCUMENTS UNDER SEAL The District Court concluded that the defendants have no overriding interest in secrecy. They do not claim the testimony was privileged. They do not contend it discloses protected work product. They argue only that the testimony would “ordinarily” be privileged or protected, except that the court had decided they waived the attorney-client privilege with their outside counsel. The argument suffers from two primary faults: The court did not find the defendants waived the protections of any privilege or protection. The Magistrate Judge found the documents were not privileged and not protected, and this court upheld that decision. There was nothing to waive. The defendants' argument proves too much. If an unsuccessful privilege claim could support a motion to seal, then any defendant could keep any document from the public view simply by asserting a meritless privilege claim, waiting for that claim to be rejected, and asking to seal the document because it would “ordinarily” have been privileged. Any evidence could be kept from the public arbitrarily. The deposition testimony may not be kept secret solely because it is specific to the particular claim at issue in the litigation. The argument undermines the motion. If the court were to grant summary judgment, and if the testimony were sealed, then the public could not read and understand the evidence behind the court's decision why there was no genuine dispute as to any material fact. Therefore, the motion to file under seal was denied. In addition, the court ordered that within seven days, defendants must either (1) file a notice withdrawing their reliance on Exhibits AAAA and BBBB in connection with their pending motion for summary judgment, or (2) file copies of Exhibits AAAA and BBBB on the public docket. THE WARNING The court and the parties have already devoted too much time, too much money, and too much effort to arguments about privilege and work product protections. As before, the court warns defendants that “dilatory or evasive tactics may result in an order to show cause why sanctions should not issue.” ZALMA OPINION There is nothing that annoys a trial judge more than repeated motions asserting privileges that do not exist yet wish to use the documents to support a dispositive motion. Insurance disputes should be relatively straightforward based upon clear and unambiguous wording of an insurance policy as applied to the facts supporting the dispute. Years of disputes over discovery of facts that the court repeatedly ruled were not privileged is contumacious and if continued the warning from the court should result in the sanctions predicted. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library

Withholding Coverage for Criminal Acts Disincentivizes Criminal Conduct Safeway Insurance Company sought supervisory writs from the judgment of the lower court which denied its motion for summary judgment. In Damien Harris v. Safeway Insurance Company Of Louisiana And Justin Rossette, No. CW 23-165, Court of Appeals of Louisiana, Third Circuit (October 25, 2023) the Louisiana Court of Appeals resolved an insurance coverage dispute over a criminal acts exclusion. FACTS After a motor vehicle accident which occurred on April 10, 2019 in Abbeville, Louisiana. Plaintiff, Damien Harris, a passenger in a 2009 Toyota Camry being driven by Defendant, Justin Rossette, collided with a pickup truck while the Toyota was running from the polices. The Camry was covered by an automobile insurance policy issued by Safeway. Officers from the Abbeville Police Department were in pursuit of Rossette with sirens and lights on the police cars were activated and the facts establish this was a high-speed pursuit. Rossette ignored a stop sign at the intersection and collided with the vehicle being driven by Aaron T. Durke. Rossette was arrested for aggravated flight from an officer and possession of narcotics at the scene of the accident. Plaintiff sustained multiple injuries. Safeway denied coverage based on a policy exclusion clause included in their standard contracts for criminal acts. Following the denial of coverage, Plaintiff filed suit against Safeway and Rossette for damages arising from the motor vehicle accident. Plaintiff and Safeway filed cross motions for summary judgment on the coverage issues. Both motions were denied. ANALYSIS Safeway argued that at the time of the collision, Rossette was engaged in and/or committing several criminal acts. Safeway noted that before the collision occurred, Rossette had been chased by numerous police cars for several blocks through parts of Abbeville. Safeway also noted that Rossette disregarded several stop signs, was speeding excessively, and the specific cause of the collision was Rossette ignoring another stop sign at the intersection. Therefore, Safeway argued Rossette was in the commission of a crime under La.R.S. 14:108.1. Plaintiff countered that Rossette was not engaging in a criminal act in the moments right before the collision. Although coverage exclusions generally do not comport with the policy of granting protection for injured persons, the exclusions in the Safeway policy served a separate public policy interest of prohibiting persons from insuring themselves against their own intentional or criminal acts. Withholding insurance coverage for intentional or criminal acts helps to disincentivize such conduct, which in turn serves the purpose of eliminating reckless and irresponsible drivers from the highways. Whether Rossette was contemplating discontinuing the flight from police as the trial court implied, the facts are clear that the accident occurred immediately after he again ran through a stop sign and collided with Mr. Durke. There was no question of fact that Rossette ran into Mr. Durke's vehicle while intentionally fleeing from a police officer, which is a crime. The Safeway policy in this case clearly provides that damages arising out of the use of an automobile "while being operated or used in the preparation to commit a crime, commission of a crime, and/or flight from a crime, other than a traffic violation," are excluded from coverage. Safeway's writ application was , therefore, granted and summary judgment in favor of Safeway was ordered. ZALMA OPINION Liability Insurance, by definition, provides coverage for fortuitous or accidental events. Running from the police in a high speed chase while blowing through stop signs and colliding with an innocent driver is a criminal act in Louisiana. That the driver had a subjective intent to avoid the accident was convicted of multiple crimes that resulted in the injuries that were the subject of Mr. Harris's injuries. There was no fortuity and the acts of Mr. Rossette were criminal and excluded. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library

Failure to Plead a Viable Complaint after Four Tries Stops Everything Scott Manley moved the USDC to dismiss the two claims plaintiff Mark Esquibel asserted against him in the Third Amended Complaint (TAC) for wrongful termination in violation of public policy (“Tameney claim”) and for promissory fraud. Because Manley was Esquibel's manager at Kinder Morgan and not his employer, Manley cannot be liable for the Tameney claim as a matter of law. For the same reason, Manley contends that he cannot be liable for promissory fraud resulting from alleged assurances in or around 2008 that Kinder Morgan would provide Esquibel with insurance coverage during his employment. More problematic is that these alleged assurances occurred in 2008 but Manley did not become plaintiff's supervisor until 2017. In Mark Esquibel v. Kinder Morgan, Inc., et al., No. 21-cv-02510-WHO, United States District Court, N.D. California (October 17, 2023) the USDC explained why its patience had been exhausted. ANALYSIS Esquibel asked for leave to amend to assert totally new claims against Manley, including eavesdropping in violation of California Penal Code section 632 and invasion of privacy, harassment under California's Fair Employment and Housing Act (FEHA), and claims for intentional and negligence infliction of emotional distress based on the alleged eavesdropping and harassment. Esquibel did not address the standard for granting leave to amend or explain why – despite the multiple opportunities to amend he was given – he failed to allege these claims in any of his prior four complaints. The claims that he seeks to add now – based on eavesdropping in violation of California Penal Code section 632 and systemic harassment and intimidation based on use of racial slurs – rely on factual allegations that were made in this case at its inception. In the trial judge's June 2023 Order, Esquibel was “given one last chance to amend.” In that Order, the court explained to Esquibel what facts were missing but were necessary in order to state viable claims. He then filed the The Amended Complaint only to find it denied and Kinder Morgan's third motion to dismiss allowing the Tameney claim and the promissory fraud claim to proceed. Given the multiple opportunities Esquibel has had to amend, the “one last chance” warning given, and the significant prejudice caused not only Manley but Kinder Morgan (who repeatedly and successfully moved to dismiss, resulting in the court's narrowing of the claims left at issue) by Esquibel's dilatory tactics and attempts to plead yet more claims based on facts known since the inception of this litigation, further leave to amend was denied. There is simply no excuse for Esquibel sitting on these claims. There has been undue delay and dilatory conduct, causing significant prejudice to defendants. Esquibel’s piecemeal approach to his pleadings and seeming inability or unwillingness to fully plead his claims despite the Court’s Orders and defendants pointing out the multiple deficiencies in his claims is unacceptable. Construing his opposition to the motion to dismiss as a properly noticed motion for leave to file a Fourth Amended Complaint with wholly new claims against Manley (and logically against Kinder Morgan), the motion was denied. Defendant Manley's motion to dismiss was granted and the litigation stopped. ZALMA OPINION Some judges have the patience of Job with litigants and allow them multiple opportunities to find a way to plead a viable cause of action. The judge in this case gave the plaintiff three tries and warned Esquibel that the last order was his "last chance." Ignoring the warning Esquibel tried a new way to allege a case that had nothing to do with his first three tries. His failure ended the court's patience and the order was dismissed. Why the court did not sanction Esquibel under Rule 11 is difficult to understand. Court's need to control their calendar and not be so patient. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library

Speaking to the California Conference of Arson Investigators Learn about CCAI at https://arson.org/ On October 19, 2023 I had the honor to speak to the California Conference of Arson Investigators Annual Seminar in San Louis Obisbo, California on taking the profit out of arson for profit. I learned as much from my audience as they learned from me and firefighters, arson investigators and federal investigators learned about the rights and duties of insurers and arson investigators when fraud - by definition arson-for-profit - is suspected. Part of my talk included: Most structures are Insured against the Peril of Fire. Arson damages property by fire. Arson is not excluded. Few insurance companies are equipped to deal with an arson-for-profit. Arson is a crime involving fire. Damage by fire is indemnified by insurance. There is no “arson defense” in an insurance policy. An arson fire is only a fire - a named peril the risk of loss of which is insured. I explained the Importance of parts of California statutes like: California Penal Code Section 550(a)It is unlawful to do any of the following, or to aid, abet, solicit, or conspire with any person to do any of the following:(1)Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury…. California Penal Code Section 550(5)Knowingly prepare, make, or subscribe any writing, with the intent to present or use it, or to allow it to be presented, in support of any false or fraudulent claim. (b)It is unlawful to do, or to knowingly assist or conspire with any person to do, any of the following:(1)Present or cause to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains any false or misleading information concerning any material fact.(2)Prepare or make any written or oral statement that is intended to be presented to any insurer … knowing that the statement contains any false or misleading information concerning any material fact. California Insurance Code Section 1871.1 Insurers and their agents, while they are investigating suspected fraud claims, shall have access to all relevant public records … California Insurance Code Section 1875.2 If any insurer has reason to suspect that a fire loss was caused by incendiary means, the insurer shall furnish an authorized agency with all relevant information acquired during its investigation of the fire loss and cooperate in an investigation by an authorized agency. California Insurance Code Section 1875.3 An authorized agency shall notify the insurer, if known, and at the expense of the insurer, whenever it has reason to believe that a fire loss was not accidentally caused. The agency shall also release to the claimant’s insurer specific information regarding the fire loss at the earliest time possible unless it determines that an ongoing investigation would be jeopardized. California Insurance Code Section 1875.4In the absence of fraud or malice, no insurer or person acting in its behalf who (a) furnishes information whether oral or written, pursuant to this article, or (b) assists in any investigation conducted by an authorized agency, shall be liable for damages in a civil action, nor shall any authorized agency which releases information pursuant to this chapter be liable for damages in a civil action.The act of furnishing information required pursuant to this article shall not constitute an act of fraud or malice. I then provided several examples of arson for profit schemes that were defeated by arson investigators working together with insurers and the investigators and claims people working with the insurers. Details are available from some of my books like: Insurance Fraudsters Deserve No Quarter Available as a paperback here. Available as a hardcover here.Available as a Kindle Book here. The Examination Under Oath to Resolve Insurance Claims Available as a Kindle book Available as a paperback. Available as a hardcover. Insurance Fraud – Volume I & Volume II Second Edition, Available as a Kindle book; Available as a Hardcover; Available as a Paperback &Available as a Kindle book; Available as a Hardcover; Available as a Paperback Fictionalized True Insurance Crime Books available at the Insurance Claims Library at http://zalma.com/blog/insurance-claims-l (c) 202 3 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library –

Most Public Adjusters are Honorable Professionals This is a fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The stories help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ­­­Perpetrators than any Other Crime. Unfortunately, like Every Profession, Some are not Honorable and This Story is Presented to Warn Insurers and Professional Public Adjusters How to Recognize the Amoral Members of the Profession Public adjusters, like personal injury lawyers, work on a contingency fee. For a percentage of the recovery, they present claims on behalf of insureds to insurance companies. Like personal injury lawyers, some are honest and some are not. The public adjuster who is the subject of this tale is one of the latter. This amoral public adjuster profits from the misery and grief of unfortunate people who suffer loss. His car is equipped with a multi-band scanner turned to all of the fire department frequencies. When he hears of a fire on his scanner he drives directly to the scene. He has been known to arrive before the fire engines. In his briefcase he carries glossy brochures explaining what services he provides and how insurers will take advantage of innocent insureds not represented by amoral public adjusters. While the embers of their house cool, he has the homeowners sign a contingency fee contract promising to take care of all their needs. Because state law requires that the contract have a seventy-two-hour cancellation clause he does nothing for the first three days, except leave the property owner with blank inventory forms upon which he has instructed them to write a description of every item of property in their house. Once the seventy-two hours have expired and the contract can no longer be canceled, he calls in contractors and furniture restorers to prepare estimates for the restoration of the house and its contents. Each of the contractors knows that they will not be called unless they have already agreed to pay the amoral public adjuster, in cash, 15 percent (15%) of the contract amount. Each of the contractors, therefore, bid their work at a price at least twenty-five to thirty percent higher than necessary to restore the damaged property using material of like kind and quality as existed before the fire. The contractors understood that a reasonable profit can only be made if the insurance company pays the inflated estimate. The company adjuster can adjust the estimate downward and they will still have enough profit left over to pay the amoral public adjuster. The amoral public adjuster also has in his office computers a schedule of household goods. Whatever claim he adjusts; the same list of household goods is presented to the insurance company adjuster. The list always contains ten cans of Libby peas, four cans of Libby string beans, five cans of Del Monte tomato sauce, and twenty can of Campbell pea soup. Every schedule prepared by the amoral public adjuster shows a thirteen-inch Sony Trinitron color television with remote control in the kitchen and a 50 inch HD TV in the family room. The living room always contains a complete entertainment center with sixty inch televisions hung on the wall, a TiVo, a stereo and a CD player. The amoral public adjuster does not even attempt to find out what was actually in the insured’s house. Invariably, because of the extent of the list of personal property, the insured’s claim is invariably greater than their policy limit. The amoral public adjuster is happiest when the loss exceeds the policy limit. This gives the adjuster for the insurance company the opportunity to negotiate depreciation off the total value of the claimed lost property without ever reaching a number less than the policy limits. The amoral public adjuster’s success relied on the fact that the company’s adjuster is overworked, underpaid and under-trained. The company adjuster does not have the time to thoroughly investigate each fire loss. He must rely on the honesty of the insured and the contractors bidding on the repair work. If the adjuster doesn’t go out and look, there is no way for the adjuster to know that there was no television in the insureds’ second bedroom. If he doesn’t look, he will never know that the insureds had never purchased Libby products in their life, or that the house was not large enough to hold all of the personal property claimed destroyed in the fire. Since the company adjuster had 200 fire claims pending and a supervisor, who insisted that he close no less than 50 claims a month, the adjuster had no choice but to believe the presentation made by the amoral public adjuster. He depreciated the personal property, eliminated duplications on a construction estimate, and prepared a well-written report establishing that the loss exceeded policy limits. His superiors immediately provided him authority to the insured and the public adjuster. The amoral public adjuster collected 10% of the total amount of the loss from the insured. He added to his profit with an additional 15% from the contractors. The adjuster closed one more file and pleased his supervisor. The insured received enough money to repair his house and replace his personal property. Auditors reviewed the file and found it well documented with two reconstruction estimates, an investigation report prepared by the adjuster, and photographs of the dwelling. On paper the adjustment was excellent. The statement of loss was prepared in the proper format. Drafts were drawn properly; all codes were entered and appropriate reserves were submitted. There was no need for the expensive services of independent adjusters, surveyors, construction consultants, engineers or attorneys. As a result of similar good work, the adjuster was promoted to claims supervisor. If the insurer's adjuster only had 50 fire claims pending and, therefore, the time to make a complete and full investigation of the fire scene, he would have learned the following: More than 40% of the personal property claimed destroyed in the fire was not in the residence. The general contractor’s estimate to repair the building added eighteen inches to every dimension of every room. This additional square footage inflated the fire repair estimate 25 percent. If he had inspected the premises closely and done a complete scope of loss, he would have noted that the hardwood floors throughout the dwelling were actually plywood sub-flooring covered with carpet. He would also have learned that there was no service porch as called for in the repair estimates, nor was there any vinyl wall covering. Had he inspected carefully, he would have noted that a kitchen larder was bare and the refrigerator contained only a quart of milk, two eggs and half a package of bacon. If his company had authorized the purchase of overalls rather than requiring him to wear a business suit on all calls, he would have been able to go into the debris to find that the only remains of a television in the entire house were a single thirteen inch J.C. Penney black and white television. If the adjuster had any training in fire cause investigation, he would have noted the flammable liquid trails on the carpet in the living room, dining room, kitchen and master bath. If his sinuses weren’t plugged, he would have smelled the gasoline still liquid in the bathroom carpet. He didn’t have the time, he didn’t have the training, and he didn’t have the support. He talked to the insured on the telephone who told him he was away from the house when the fire happened. The adjuster had a contractor he knew prepare an estimate which he used as the basis of his adjustment. The contractor was introduced to the adjuster by the amoral public adjuster. The adjuster never saw the dwelling. He trusted his contractor and the amoral public adjuster to do his work for him. The insured got their house fixed and more money than they were entitled to receive. The amoral public adjuster collected 25% of the total payment for a total of five hours work. The contractor, even after paying 15% to the amoral public adjuster, made a profit of 40% and did only the least amount necessary to repair the house rather than the maximum amount specified on the reconstruction estimate. The fraud was perfect. The perpetrators and the victims alike, were satisfied. If the insurance industry believes it is saving money by under staffing, under paying and failing to properly train its adjusters, it is sorely mistaken. I submit that the most effective means of defeating fraudulent insurance claims would be for the insurance industry to recognize that its staff of adjusters must be highly trained professionals who earn the best wage in the insurance company and who are motivated and rewarded for good work. Adjusters must be compensated and rewarded for the quality of their work, not the quantity. Very few public adjusters are amoral. In fact, their national organization, requires they submit to the NAPIA code of ethics. [http://www.napia.com] If the amoral public adjuster followed the NAPIA code he would be the Moral Public Adjuster. This article was adapted from my book Insurance Fraud Costs Everyone (c) 202 3 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

UIM Statute Limited Coverage to Same as UM Coverage THE STATUTE CONTROLS Majdoleen A. Khattab, Administratrix of the Estate of Affan Mohamad Khattab, ("Appellant" or "the Estate"), appealed the district court's order granting summary judgment for Berkley Regional Insurance Company and Integon General Insurance (collectively, "the insurers"), and entering an order of declaratory judgment in favor of the insurers. In Majdoleen A. Khattab, Administrator, Estate of Affan Mohamad Khattab v. Berkley Regional Insurance Company; Integon General Insurance Corporation, No. 22-1462, United States Court of Appeals, Fourth Circuit (October 19, 2023) the Fourth Circuit interpreted the clear language of the statute and UM/UIM coverages. ISSUES At issue is an insurance policy issued by Berkley Regional Insurance Company. The policy has a general liability limit of $1,000,000 and an uninsured motorist coverage limit of $70,000. This case solely turns on the legal question of what the relevant coverage limit under the insurance policy is for an accident caused by a motorist whose insurance coverage is less than the amount of claimed damages and less than the amount of the general liability limit, but greater than the amount of the uninsured motorist coverage limit. Virginia mandates that an insurance policy's uninsured motorist coverage limits must match the policy's liability limits unless any one named insured rejects the additional uninsured motorist coverage by notifying the insurer as provided in the statute. There is no dispute that Berkley complied with the notice requirement for "uninsured/underinsured coverage limits" pursuant to the statute. There was no dispute that the insured properly limited the uninsured coverage to $70,000. With respect to underinsured coverage the statute provides that the policy shall also provide underinsured motorist insurance coverage with limits that shall be equal to the uninsured motorist insurance coverage limits and shall obligate the insurer to make payment for bodily injury or property damage caused by the operation or use of an underinsured motor vehicle to the extent the vehicle is underinsured. Appellant argues, the underinsured coverage limit remained at $1,000,000, equal to the policy's general liability limit. However, Appellant did not pay for a UIM coverage of $1 million. Appellant overlooks that the statutory default sets underinsured motorist coverage equal to uninsured motorist coverage, not the policy's general liability limit. Because the uninsured motorist coverage was properly limited to $70,000, and the policy does not provide for underinsured motorist coverage different from the statutory default, the district court correctly concluded that the applicable coverage limit was $70,000. Accordingly, the Fourth Circuit Court of Appeals affirmed. ZALMA OPINION It appears to me to be ridiculous to buy liability insurance with limits of $1 million to protect third parties that might be hurt by the insured but refuse to buy the same limit or more if the insured is injured by an uninsured or underinsured motorist. The insured sought the coverage that was needed, not the coverage ordered. (c) 202 3 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

Courts May Never Assume They Must Deal in Facts Grange Insurance Company ("Grange") issued two insurance policies for insureds called Roosters - a Business Owners' Policy ("BOP"), and a Commercial Umbrella Policy ("CUP"). All agree the BOP provides coverage. The BOP specifically covered liquor liability the CUP specifically excluded liquor Liability. In Grange Insurance Company v. Georgetown Chicken Coop, LLC; Anthony Crish; Chad Givens; Cock-A-Doodle-Doo, LLC; Preston Restaurant "A," LLC; and Robert Gauthier all aka "Roosters", No. 2022-CA-0101-MR, Court of Appeals of Kentucky (October 20, 2023) the Court of Appeal read the full CUP and ruled on its unambiguous language. FACTUAL BACKGROUND On the night of January 5, 2019, Joey Lee Bailey ("Bailey"), was served and consumed alcohol at Roosters in Georgetown. After leaving Roosters, Bailey went to another place called "Horseshoes" in Lexington, where Bailey continued to drink. Then, during the early morning hours of January 6, 2019, Bailey was driving the wrong direction on Interstate 75. Bailey's truck hit a vehicle carrying the five-member Abbas family. All six people were killed. The estates sued. Roosters then sued for declaratory judgment against their insurer, Grange. Grange then sought a legal determination concerning their insurance coverage under the CUP. Roosters sought summary judgment, which was granted. Grange appealed. ANALYSIS Even if a court finds an ambiguity in a policy courts may not rewrite the plain language of a policy examined as a whole. The circuit court declared an ambiguity. The circuit found an ambiguity and also made a general observation about umbrella policies. The difficulty with the decision of the circuit court flowed from the following paragraph in the circuit court's Conclusions of Law: “There is no purpose for an umbrella policy if not to supplement the underlying policy if exhausted.” What it ignored was that the purpose is only to supplement underlying policy coverages that the insurer agreed to supplement. The CUP was not a "follow form" umbrella and had different terms and conditions. The primary insurance for Roosters was provided by Grange with the BOP. Liquor liability coverage was provided by an endorsement to the BOP. The parties agreed that liquor liability coverage existed in the BOP. Roosters also purchased the CUP, an umbrella policy with Grange. Umbrella policies are often purchased but, as in a real-life thunderstorm, some umbrellas provide more coverage than others. The Court of Appeals noted that your feet may still get wet with the best umbrella. As a general statement, umbrella policies, as one form of excess coverage, follow the primary policy and provide additional coverage. Such policies often provide additional coverage for some claims not in the primary policy. An umbrella is not necessarily a mirror image of the primary coverage. An umbrella policy may have its own exclusions. The Court of Appeal stated that it was unable to find authority for the proposition that an umbrella cannot exclude additional coverage for certain claims covered by a primary policy since they are two separate contracts. That is why the first paragraph of the CUP states: "Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered." The word replace is not technical. The entire section in the form policy was removed and replaced by the language of the endorsement that eliminated liquor liability coverage. Without ambiguity, the expectations of the insured do not control. Courts are not in the business of assumptions. Rather, a court must apply facts to the law. Refusing to acknowledge and accept the Circuit Court's assumptions that an umbrella policy must provide coverage excess over all of the coverages provided by the BOP, the Court of Appeal reversed the trial court. The Court of Appeals directed a declaratory judgment that the CUP does not provide coverage and thus also does not impose a duty under the CUP to defend the claims in this case. ZALMA OPINION Whenever an insured or a court assumes facts or coverages exist without applying the actual language of the policy they must break the word "assume" into its component parts and Roosters and the trial court's assumption of coverage made an ass out of the insured and the circuit court. Although few actually read an insurance policy that is no excuse for any insured who did not pay someone to read it for them if they were unable to do it personally. The Court of Appeal had no choice, it read the policy and applied it as written. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

Conviction by Plea Manifestly Just Defendant Carlo Amato appealed from a March 24, 2022 order denying his motion to withdraw his guilty plea. In State Of New Jersey v. Carlo Amato, No. A-2788-21, Superior Court of New Jersey, Appellate Division (October 10, 2023) dealt with the intent to withdraw Amato's guilty plea. FACTUAL BACKGROUND In October 2017, Amato was indicted by a Grand Jury for four counts of second-degree healthcare claim fraud; two counts of third-degree theft by deception; third-degree possession of a controlled dangerous substance; five counts of second-degree theft by deception; second-degree insurance fraud; and two counts of first-degree financial facilitation of criminal activity. Two months later, defendant was charged with second-degree financial facilitation of criminal activity; second-degree theft by deception; and fourth degree making a false written statement. These additional charges stemmed from defendant allegedly filing false disability claims. Following issuance of an arrest warrant and execution of a search warrant at defendant's residence in December 2017, he was charged with second-degree financial facilitation of criminal activity and fourth-degree possession of a fictitious driver's license prompting the State to move for his pretrial detention. After the state multiplied the charges against Amato for multiple crimes, knowing he was guilty and had no chance of a defense verdict, in April 2018, Amato accepted a plea offer from the State to plead guilty to one count of first-degree financial facilitation of criminal activity and one count of second-degree theft by deception under Accusation, a small part of the charges in the indictments. Before he entered his guilty pleas, the State outlined the terms of the plea offer on the record, stating that in exchange for defendant's guilty pleas, it would: dismiss all other pending charges; allow defendant to exculpate his wife; recommend a ten-year prison term with a five-year parole disqualifier on the first-degree offense, to run consecutive to a flat five-year term on the second-degree theft charge; recommend that defendant's aggregate sentence run concurrent to a sentence due to be imposed on his pending federal charges; and consent to delay defendant's sentencing on state charges until after his sentencing on federal charges. SECOND THOUGHTS In April 2020 Amato moved to withdraw his guilty pleas to the two state charges, contending his reasonable sentence credit. Defendant argued he was denied effective assistance of counsel because plea counsel failed to advise him duplicate jail credits could not be awarded on his consecutive state sentences. Defendant certified that if plea counsel had advised him that he was not entitled to a duplicate award of 511 credits, he would not have accepted the plea offer from the State and would have insisted on going to trial. THE TRIAL JUDGE Additionally, the judge determined "[d]efendant received a host of benefits" when he accepted the State's plea offer and none of those benefits "w[ere] affected by the number of jail credits awarded for his state sentences." Therefore, he concluded there was no "reasonable likelihood [d]efendant would have insisted on going to trial, even if his claim that he was misadvised as to the award of jail credits had merit." When a motion to withdraw a guilty plea is filed after sentencing, a trial court may only vacate a guilty plea to correct a manifest injustice. The judge properly denied defendant's motion after finding the rules were followed at the time of defendant's plea hearing. Here, the judge carefully considered the argument and not one of the proposed errors supported withdrawal of defendant's pleas under the "manifest injustice" standard. Under these circumstances, and aware the judge chose to - but was not obliged to - revisit defendant's aggregate sentence before directing defendant's state sentences to run concurrently, we perceive no reason to disturb the judge's finding. ZALMA OPINION It is annoying to me, and to the trial and appellate court, when the state puts together a case to charge a person with fraud when the state provides an offer of a plea to lesser charges only to have the defendant, like Mr. Amato, to change his plea. If the judge agreed he could have forced Amato to trial and if convicted a much greater prison term or, what the court did here, was to deny the attempt to withdraw the appeal. People who commit insurance fraud and have no qualms, even after admitting to the crime, to try to get out of the jail sentence. Mr. Amato's attempt failed. (c) 202 3 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

What to Do When Faced With Auto Insurance Fraud This blog post is a True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is posted to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ­­­Perpetrators than any Other Crime. See the full video at and at https://youtu.be/CmUOiqJWg-A The Auto Fraud To a person intent on perpetrating an insurance fraud two maxims become immediately clear: Insurers don’t care. most adjusters and investigators wouldn’t know a fraud if it presented itself to them wearing a sign saying: “I am a fraud.” Very successful, multimillion-dollar businesses were set up with those maxims in mind. The most successful is the automobile personal injury fraud. It exists in almost every metropolitan community. Each perpetrator of an automobile personal injury fraud varies the methodology slightly. Rather than isolated instances of fraud they are run like a large corporate entity. The following are the categories of individuals involved in the automobile personal injury fraud ring: THE RECRUITER This is a person who worked in the community to recruit two different types of people: the victims and the insureds. They recruit victims from the ranks of the unemployed, individuals on welfare or anyone in need of quick cash. The same sources provide insureds who may even include wealthy, or well-off people, who need cash to support their purchase of illicit drugs. The recruiting techniques are simple and straightforward. A victim is offered $300 to $500 cash to allow his name to be used in a report of an automobile accident. Sometimes they must actually sit in a car that is then struck by one of the recruited insureds. Sometimes they only sell the use of their names. In fact, depending on the insurer involved and the reputation it has for investigation of such claims, living persons are not necessary to play the role of victim. In such situations, the insured merely runs his vehicle into a stationary object such as a garage wall or telephone phone to create damage to his vehicle. He reports that he struck the victim’s vehicle in a private parking lot and that the victim and four of his passengers are reporting personal injuries. All of the victims hire counsel. Almost always the victims hire the same lawyer who refers them all to the same physician or chiropractor. THE DISHONEST LAWYER Depending on his experience, the lawyer either recruits the recruiter or is recruited by the recruiter. The recruiters usually watch the results of the bar examination and then make contact with a newly admitted lawyer. They advise the lawyer that, for a small share of the proceeds, they can provide him with ten to twenty new personal injury plaintiff cases every month. They claim that they have this source of business because they work as an administrator for a local chiropractic clinic or in a body shop. The young, gullible lawyer, either not realizing that it is a crime to pay a person for a case, or is so hungry for work that he or she ignores the law, agrees. The young lawye r never meets his or her client. He or she gets contingency fee agreements from the recruiter and medical reports reflecting the injuries. He then makes demand on the insurer who has already received a report from its insured (who was paid to do so) advising that the accident was the insured’s fault. The lawyer makes demands on the insurer for settlement. After a few telephone calls and copies of the medical reports he settles with the insurer for between $5,000 and $10,000 a plaintiff. The lawyer keeps all of the money less the fees of the recruiter, the victim and the insured. The lawyer makes an excellent living earning more money than he ever would on salary for any law firm. He learns the trade and recruits his own recruiters to keep more of the money. Greed and the Dishonest Lawyer The people involved in staged automobile accident claims are usually successful until they get greedy. In 2011, Robert Belshaw, 56, a Marina del Rey, California attorney was sentenced to seven years and eight months in prison for his role in an auto insurance fraud ring that stole about $3 million. Belshaw was found guilty in March of five counts of money laundering and three counts of state income tax evasion. A co-defendant and ring leader, Solomon Morris Davis, 61, of Rancho Palos Verdes, also was convicted on 20 counts of insurance fraud and conspiracy. He was sentenced in April to 12 years in state prison. The ring staged accidents to defraud insurance companies. Prosecutors told the press that Davis set up Total Medical Healthcare in the mid-Wilshire area of Los Angeles under the name of his wife, Dr. Jody Hunter-Davis, as part of the scam. She, however, did not practice medicine at the clinic and was not a suspect in the case. As part of the fraud scheme, the signatures of doctors who worked part-time at the clinic were forged for inflated billings. Davis recruited Belshaw to run a sham law practice that negotiated the fraudulent billings with insurance companies from September 1999 to April 2003. Belshaw failed to claim any of his earning on state income tax returns from 1999 to 2001, officials with the state Franchise Tax Board said. Belshaw owes the tax board more than $31,600 in unpaid taxes, penalties, interest and the cost of the investigation. Had Mr. Belshaw limited the number and extent of fraudulent claims he would probably still be presenting fraudulent claim and earning a good living. Because he got greedy, because he failed to report the money he earned from his criminal activity, he is now residing in the grey bar hotel operated by the state of California and can only wear an orange jump suit. This post was adapted from my book, Insurance Fraud Costs Everyone Available as a Kindle Book and Available as a Paperback from Amazon.com. (c) 202 3 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

False Lightning Strike Claim Results in Fraud Conviction Sara Weisbeck appealed her convictions for insurance fraud: false material information and identity theft over $1500 and under $10,000, both class "D" felonies. In State Of Iowa v. Sara Jo Weisbeck, No. 22-1068, Court of Appeals of Iowa (October 11, 2023) considered her pleas for mercy. FACTS In spring 2019, Weisbeck was renting a house from Lisa Smith in LeClaire. The house did not come with appliances, so Weisbeck provided her own refrigerator, stove, microwave, washer, and dryer. The night of June 30, there was a severe storm in the area. The following morning, Weisbeck sent Smith this text message: I don't want to sound sketchy, but the house totally got struck [b]y lightening [sic] last night, and there are trees like splitting down the middle .... I don't know if you want to call your insurance and report it as part of the damage or not, but it would be good timing to do so if you did! That evening, Smith and her son went over to the house. Weisbeck was in the back yard and showed Smith the splitting tree at the back of the large lot. But Smith did not see or smell any scorching. Weisbeck then told Smith that lightning had struck the roof of the house and knocked a window out of its frame. Smith saw a window frame lying on the ground with one pane missing, but no shattered glass was around it. Weisbeck also said, because of the lightning strike, all of her appliances got "fried." Weisbeck would not, however, let Smith into the house to inspect the damage to the window. She only allowed Smith in several days later. Smith ultimately did not file any claim with State Farm, her property insurer. Weisbeck reported to her insurer, Nationwide Insurance, that lightning struck a tree on her lawn, and the electricity traveled into her house, damaging her appliances. She gave a list of the damaged items. She was also asked for and provided photographs of the items. The claims adjuster reported advising Weisbeck to keep her damaged property for inspection. Weisbeck's claim was referred to Nationwide's Special Investigations Unit for raising several "red flags." Joe Martinez, a special investigator with Nationwide, took over the case and asked to inspect the interior of the home, Weisbeck would not let him in. He explained that they needed to inspect the home and conduct an interview to collect additional information on the claim. Martinez photographed the tree and the house exterior, noting that the electrical meter was still functioning and there appeared to be no electrical or fire damage to the house. At that point, Weisbeck came out again and told Martinez to leave. Weisbeck was deemed to have refused to cooperate with the investigation, and Nationwide ultimately denied her loss claim. LeClaire police forwarded the complaint to the Iowa Insurance Division Fraud Bureau. The State ultimately charged Weisbeck with two criminal counts: insurance fraud: false material information a class "D" felony; and identity theft over $1500 and under $10,000 also a class "D" felony. A jury convicted Weisbeck as charged. The court sentenced her to indeterminate terms of five years for each conviction but suspended the terms and imposed two years of probation. She appealed her convictions and sentence. ANALYSIS Weisbeck argued there was insufficient evidence to prove she intended to defraud Nationwide or that she provided materially false information. The Court of Appeals agreed with the State that there was ample evidence to support both jury findings. The state established that several of the appliances, including the PlayStation and the Samsung Blu-ray player, appeared to have functioning lights, suggesting those electronics did not get "fried" as Weisbeck claimed. Another photograph depicted a monitor and printer with functioning blue lights next to the HP computer claimed as damaged. The court of appeals concluded that the jury reasonably believed that Weisbeck invented a fake email address to stand in as her landlord and falsely represent that her claim was valid. The evidence was enough to convince the jury that Weisbeck did so with the specific intent to defraud Nationwide. The jury was entitled to reject this defense and to disbelieve Weisbeck's story about the shifting appliances, and did so. There was substantial evidence to support its conclusion and a jury could conclude beyond a reasonable doubt that Weisbeck engaged in a pattern of deceptive behavior intended to get her claim approved, depriving Nationwide of those funds through deceit. SENTENCING Finally, Weisbeck contested her sentence to two five-year prison terms, suspended, instead of the deferred judgment she requested. At sentencing, Weisbeck argued that a felony conviction on her record would preclude her from jobs in her field as an elementary school resource teacher. The court of appeals noted that protection of the community from further offenses is an important and relevant sentencing factor and agreed with the trial court that found the criminal thinking involved warranted future employers being warned as to the defendant's past conduct. Therefore, there was no abuse of discretion in the trial court considering this as a relevant factor in sentencing. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

How Insurance Fraud Can Succeed "This blog post is a fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is posted to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ­­­Perpetrators than any Other Crime." Wo Ping Chen was trained as a physician in Hong Kong. Until Hong Kong was returned by the United Kingdom to the Peoples Republic of China, he was the best known Orthopedist in the Crown Colony. Fearing problems with the new government he emigrated to Vancouver, British Columbia, Canada as a citizen of the commonwealth. He worked as an employee of the National Health Service for a year and then obtained a work visa to the U.S. and crossed the border into the U.S. only to find he could not work as a physician without a license from a U.S. state and attended a U.S. based medical school. After one year of medical school, one year of internship in a Seattle hospital and one year as a resident Chen was able to restart his life. His first effort upon receiving a license was to apply to the U.S. Government’s Medicare and Medicaid systems for a medical provider number which would give the government the ability to deposit funds electronically into his bank account without having to wait for a check to be received and collected. Dr. Wo was a very good doctor and his practice grew rapidly. He found most of his patients were poor and could only pay through one of the government programs. He was not, as in Canada, an employee. He had to live on the small amounts that Medicare or Medicaid considered proper for the work he did. Each of his invoices was scrutinized and he was never paid what he billed even though he knew, from meetings with other physicians in Seattle, he was billing reasonable and proper amounts for the services rendered. Frustrated and earning less every year than the year before, although he was working harder and longer hours, he told his tale of woe to a colleague over a hospital lunch. “Wo, my friend” the colleague responded “don’t be upset and frustrated – it is time you used the system to your benefit.” “How?” “You know the people that review your billing are not physicians, they are key punch operators. If what you bill fits within the requirements of their computer software money goes into your account in the amounts required by their computer.” “Yes,” Wo replied, “when I speak with them to challenge their decisions they speak like complete idiots.” “Use their stupidity to your benefit.” “How?” “The CPT codes.” “They just describe services.” “Yes, so if you do something for a patient that is listed as a point two raise it to a point three.” “But that would be dishonest.” “No, because they base their payment on the code and the payments are not realistic so raising the code up one level will get you paid the correct amount for the services actually rendered.” Wo took the conversation to heart and found payments deposited into his bank increased to amounts reasonable for the services he was actually rendering even if it was not as described. His billings were never questioned. The information went from Chen’s office computer to a government agency computer that automatically sent money to his account. His youngest daughter had found a husband and he was facing an expense of over $100,000 to pay for a traditional Chinese wedding and reception. He did not have the cash. He did, however, have a large list of Medicare and Medicaid patients in his data base. He knew, from experience, that no one in the US Government or their agents would check his billing. He had served the public at low rates for many years. He decided to obtain the cost of his daughter’s wedding by using his computer. He created invoices for 300 of his male Medicare patients for an office visit and complete blood test at $250 each. He dated the service carefully so he showed only ten of the 300 each day for 30 days. He did the same for 300 female patients for an office visit, a pelvic exam, and an x-ray to check for a potential broken hip, each for only $250. By the end of the month $150,000 was deposited into his account without question. He had the money for his daughter’s wedding and did not have to work for it. "This is a great country," Wo thought, they send me money when I need it without requiring that I work for it. Dr. Wo knew that the practice of Medicine is hard work. The earnings of physicians were continuously being reduced by insurers and government agencies. He was getting old. He attended two medical schools and was still borrowing money to pay off loans he took to finish school. It was time he considered funding his retirement. As part of his practice, he spent half his time at the local hospital. He had problems with his office computers and hired the Information Technology person at the hospital to fix his system on a weekend. They had become friends. The IT man finished his work at the office and sat down for some coffee with Wo. “So, how is the practice treating you, Dr. Wo?” “Not bad, but the insurance companies and government keep cutting what I receive.” “It is tough. I wish I could help you.” “You can.” Chen replied. “I will pay you $100,000 more than your fee if you give me a CD ROM with the identification information of 100,000 hospital patients who are Medicare or Medicaid recipients.” “I’m not sure I can do that Dr. Wo. I could lose my job.” “Okay, I’ll give you $150,000.” The IT man delivered the disk the next day and received $15,000 in cash from Dr. Wo as a down payment. He used the disk to submit billing for each of the 100,000 patients for the same office examination, x-rays, and a complete blood count. Two weeks later $25,000,000 appeared in his account, Dr. Wo Ping Chen paid the IT man $135,000 to complete the fee, transferred the remaining money to his bank in Hong Kong, closed his office and moved back to Hong Kong where he retired a very wealthy man. No one questioned his billing. No investigator checked on how one doctor could treat 100,000 patients in one month. It seemed no one cared. Dr. Wo did not consider himself a criminal nor did the United States Government. He just played the system knowing that it was operated by people who did not care as long as the correct boxes in the computer were checked. His crime succeeded because he was not greedy. He only did the major crime once. The computer operators at the Medicare payment offices never noticed that he did a cervical exam on an eighty-three-year-old man named Louis Jones. Insurance fraud is often successful, as it was for Dr. Wo, because the governmental entities have little incentive to even look for fraud, investigate criminal conduct, or even try to do the job for which the government employees were charged. Dr. Wo was correct, this is a great country, and it gives away other people's money to anyone with the gumption to ask. That includes my money and yours and Dr. Wo's success offends me and should offend you. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

Reference to Defendant's Need to Pay is not Inappropriate Mention of Insurance When I was a young adjuster 55 years ago California and every state allowed a plaintiff's contributory negligence - no matter how small - to defeat a negligence claims. In 1975 Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393 (Cal. 1975) established the system of contributory negligence that has been followed in most states. Maryland, however, still applied contributory negligence and has refused to adopt comparative negligence. In Michael Lewis v. Pedro Romero, No. 1932-2022, Court of Special Appeals of Maryland (October 10, 2023) Mr. Lewis lost his negligence action against Mr. Romero whose vehicle struck pedestrian Mr. Lewis in a bank parking lot. Michael Lewis ("Lewis") sued Pedro Romero ("Romero") for negligence. Ultimately, the jury found that while Romero was negligent, Lewis was contributorily negligent, barring Lewis from recovering damages. FACTUAL BACKGROUND The incident occurred on October 9, 2019, outside of the Capital One Bank (the "bank") in Frederick, Maryland. The bank has two points of access for vehicles. There is a one-way, single lane road spanning the perimeter of the bank with painted one-way arrows. This road does not have any crosswalks. Both parties agreed that on the date of the incident, Romero was driving a pickup truck on the one-way road around the perimeter of the bank when he struck Lewis, a pedestrian, who was exiting the bank. Lewis testified that he walked on foot from a nearby hotel where he was staying to the bank in order to withdraw money. Lewis admitted that at the time of the impact, his cell phone was in his hand. However, Lewis denied that he was talking on the phone at the time he was struck by Romero's vehicle. ANALYSIS On the issue of contributory negligence when measuring contributory negligence, the standard of care is the conduct of an ordinarily prudent person under circumstances ordinarily. The court found that Romero met their burden of production regarding contributory negligence and that is that Romero has introduced more than a mere scintilla of evidence meaning more than a surmised possibility or conjecture that Lewis has been guilty of negligence and that Romero generated a jury issue. During closing argument, after discussing Lewis' alleged damages, Romero's counsel stated, "[Lewis] is asking you to award him [money] for the choices he has made. He wants Mr. Romero to pay him for some of these choices." The court denied Lewis' motion for mistrial. The jury returned a verdict, finding that while Romero was negligent, Lewis was contributorily negligent, barring Lewis from any recovery. DISCUSSION Maryland follows the majority rule that evidence of insurance on the part of a defendant is generally inadmissible. The Supreme Court of Maryland has also held that a mere inference that there may be insurance would not necessarily require a termination of the trial. Romero's counsel made an ambiguous comment during closing argument that Lewis wanted "Romero to pay him for some of [his] choices." There is nothing in the record to suggest that the comment surpassed the threshold of being an improper statement that warranted further consideration. WHAT IS CONTRIBUTORY NEGLIGENCE? Contributory negligence occurs whenever the injured person acts or fails to act in a manner consistent with the knowledge or appreciation, actual or implied, of the danger or injury that his or her conduct involves. Contributory negligence is defined as the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances. The question of whether the plaintiff has been contributorily negligent is ordinarily for the jury to decide. To find contributory negligence as a matter of law, the injured party's action must be distinctive, prominent, and decisive from which reasonable minds would not differ as to the negligent character. The case was properly submitted to the jury because, even when viewing the facts in the light most favorable to Lewis, the evidence establishing his contributory negligence amounted to more than surmise, possibility, or conjecture. Lewis' decision to leave the sidewalk and walk mid-way into the road while only glancing for oncoming traffic constituted a distinctive, prominent, and decisive decision from which the jury could find that Lewis was contributorily negligent. Notably, Lewis' testimony that he was "hit from behind" on a one-way road indicates that he was facing away from oncoming traffic and not looking for vehicles coming in his direction. Upon these facts, the appellate court concluded that the trial court properly submitted the question of contributory negligence to the jury. ZALMA OPINION The application of Contributory Negligence as an absolute defense to a negligence cause of action is considered, in most states, to be Draconian and that comparative negligence is fair and reasonable. Maryland is in the minority. That Maryland continues to apply the common law is appropriate and since the jury found both parties to be negligent Mr. Lewis recovered nothing from his suit. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-l

Using Sexy Pictures Without Consent Resulted in Coverage Dispute An insurance coverage dispute arising out of litigation in Texas state court. Two insurance policies are at issue, and the district court concluded that both provided the insureds coverage. The insurer appealed in The Princeton Excess and Surplus Lines Insurance Company v. A.H.D. Houston, Incorporated, doing business as Centerfolds; et al, No. 22-20473, United Stat es Court of Appeals, Fifth Circuit (October 6, 2023) FACTS This comparatively pedestrian contract dispute stems from a much more salacious lawsuit filed in Texas in 2017. Sixteen professional models (the Models) sued three Texas strip clubs (the Clubs) following the Clubs' use of the Models' likeness for advertising campaigns without the Models' consent. The Clubs' advertising material was manipulated to give the impression that the Models endorsed the Clubs or worked as strippers in the Clubs. The Models claimed they were depicted in various sexually charged social media and Internet posts encouraging patrons to visit the Clubs. According to the Models, the Clubs participated in the selection, creation, and dissemination of these advertisements. The state trial court granted summary judgment for the Models and awarded $1,405,000 in damages. The Clubs appealed. That appeal has not yet been finally adjudicated on the merits. Meanwhile, Princeton Excess and Surplus Lines Insurance Company (PESLIC) filed a declaratory judgment action. PESLIC issued two commercial liability insurance policies to the Clubs that have identical coverage provisions but contain slightly different exclusions The 01 Policy contains a "Field of Entertainment Exclusion." The 02 Policy contains an "Exhibitions and Related Marketing Exclusion" that curtails coverage for Personal and Advertising Injury subsections d. through g. As to the 01 Policy, the district court found that "the Models' pleadings in the underlying lawsuit sufficiently allege[d] that that the Clubs used [the] Models' images (i.e., their 'advertising ideas') and placed them in their own 'advertisements.'" Consequently, the district court held that PESLIC had a duty to defend and indemnify the Clubs under the 01 Policy. As to the 02 Policy, the parties disputed whether that policy's Exhibitions and Related Marketing Exclusion rendered illusory the Personal and Advertising Injury coverage. The district court agreed with the Models and the Clubs that it did and "decline[d] to give effect to PESLIC's 'Exhibition and Related Marketing' exclusion." The trial court thus held that PESLIC had a duty to defend the Clubs. The district court also held that PESLIC had a duty to indemnify the Clubs under the 02 Policy. DISCUSSION In Texas, insurance policies are interpreted by the same principles as contract construction. The words of the policy are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. An insurance contract is ambiguous if it is subject to more than one reasonable interpretation. Under Texas's well-established eight-corners rule, an insurer's duty to defend is determined by the claims alleged in the petition and coverage provided in the policy. The 01 policy includes coverage for Personal and Advertising Injury. But it also includes a Field of Entertainment Exclusion, which narrows the scope of that coverage. An insurance policy is not illusory merely because it does not provide coverage for a claim the policyholder thought it would cover. By its terms, the Field of Entertainment Exclusion eliminates coverage for most of the "advertising injuries" included in the 01 Policy's Coverage B-Personal and Advertising Injury Liability. But it expressly excepts injuries encompassed by subsection f., for the use of another's "advertising idea." The exclusion does not render coverage illusory and therefore is binding on the parties. To sum up, the Field of Entertainment Exclusion is enforceable, as the 01 Policy nonetheless will provide coverage for other claims. Coverage under the policy is thus not illusory. The Clubs took those products and used them without permission. Without more, taking and then advertising another's product is different from taking another's 'advertising idea. PESLIC, therefore, has no duty to defend the Clubs based on the 01 Policy's "advertising idea" coverage, and the district court erred in concluding otherwise. The 02 Policy, which applies to most of the Models' claims turns on the policy's Exhibition and Related Marketing Exclusion, which eliminates coverage for Personal and Advertising Injury subsections d. through g. (pertaining to advertising injuries), to the extent "such activities arise out of or are part of 'exhibitions and related marketing.'" The 02 Policy, is not illusory merely because it does not provide coverage for a claim the policyholders thought it would cover. Instead, the text of the 02 Policy is not ambiguous, and Texas law presumes that the party knows and accepts the contract terms. A lack of duty to indemnify can be inferred from a lack of duty to defend when the reasons that negate the duty to defend also negate any possibility the insurer will ever have a duty to indemnify. PESLIC does not have a duty to defend the Clubs under the 01 Policy. Its duty to indemnify under the 01 Policy depends on final resolution of the state case. As for the 02 Policy, PESLIC does not have a duty to defend or indemnify under it because the 02 Policy does not provide coverage for the claims alleged by the Models. The district court erred by concluding otherwise. ZALMA OPINION The Eight Corners Rule limits the court coverage determination to the allegations of the complaint and the wording of the policies. Since the policies clearly excluded the claims of the models there was no coverage for a defense and as to one policy the results of the appeal of the Texas state curt action can determine the duty to indemnify while the other policy does not allow coverage for defense or indemnity. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library/

No Insurance Policy Covers Every Possible Risk of Loss Defendant Timed Out, LLC appealed a summary judgment declaring plaintiff AIX Specialty Insurance Company had no duty to defend, and thus no duty to indemnify, its insured in an action Timed Out brought against the insured. The trial court concluded a policy exclusion for personal and advertising injuries "arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights" eliminated AIX's coverage obligations in the underlying lawsuit. In AIX Specialty Insurance Company v. Timed Out, LLC, B320255, California Court of Appeals, Second District, Third Division (October 5, 2023) the Court of Appeals interpreted the meaning of the exclusion. BACKGROUND The Policy Godtti Entertainment, the AIX insured operated a bar and nightclub where its patrons can "dance," see "live DJ performances," and attend "an assortment of events." In February 2019, AIX issued a commercial general liability (CGL) insurance policy to Godtti. The policy insures against liability for damages stemming from, among other things, certain "personal and advertising injury" offenses. The policy excluded coverage for "'Personal and advertising injury' arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights" (the IP exclusion). Timed Out's Lawsuit Against Godtti Timed Out filed a three-count complaint against Godtti for statutory misappropriation of likeness; common law misappropriation of likeness; and negligent hiring, supervision, and/or retention of employees. According to the complaint's allegations, between 2017 and 2019, Godtti knowingly used the models' "image and likeness" in "various marketing, advertising, and promotional material[s]" without the models' consent and in violation of their statutory and common law right of publicity. Godtti also allegedly failed to train and supervise its employees who "stole the [m]odels' [i]mages and used the [i]mages without [the models'] permission." AIX's Declaratory Relief Action Against Godtti and Timed Out AIX filed a declaratory relief action against Godtti and Timed Out seeking a declaration that it had no duty to defend or indemnify. AIX moved for summary judgment asserting the IP exclusion precluded any potential for coverage for the claims asserted in Timed Out's complaint. Specifically, AIX argued all claimed injuries arose out of Godtti's alleged infringement of the models' right of publicity-an "other intellectual property right[ ]" subject to the IP exclusion. The Order Granting Summary Judgment The trial court granted AIX's summary judgment motion, concluding the IP exclusion precluded coverage for Timed Out's misappropriation of likeness claims. The court entered judgment in favor of AIX. Timed Out filed a timely notice of appeal. DISCUSSION In determining whether a claim creates the potential for coverage under an insurance policy appellate courts are guided by the principle that interpretation of an insurance policy is a question of law. Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. The IP Exclusion Precludes Coverage for Timed Out's Claims Based on Godtti's Alleged Misappropriation of the Models' Likenesses Specifically, the court determined Timed Out's claimed injuries all stemmed from Godtti's alleged misappropriation of the models' likenesses and the IP exclusion unambiguously precluded coverage for those claims. Godtti's policy expressly excludes coverage for "'[p]ersonal and advertising injury' arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights." (Italics added by the court) As the California Supreme Court explained in Hameid v. National Fire Ins. of Hartford (2003) 31 Cal.4th 16, only a "widespread promotional" campaign using the image constitutes "advertising" under a CGL policy like the one AIX issued to Godtti. Timed Out's complaint alleges only that Godtti misappropriated the models' likenesses as they appeared in digital images-not that Godtti misappropriated an advertisement or advertising idea using those likenesses or images. The Court of Appeals agreed with the trial court's conclusion that Timed Out's claims arise out of an alleged infringement of the models' right of publicity and the IP exclusion therefore unambiguously precludes coverage. The IP Exclusion Does Not Render Coverage for Personal and Advertising Injury Illusory The Court of Appeals construed the IP exclusion according to its plain terms to give effect to the exclusion and AIX's obligation to provide coverage for personal and advertising injuries. Simply put, because the IP exclusion applies only to injuries "arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights," and claims such as disparagement and false light do not necessarily arise out of intellectual property rights, the exclusion does not render illusory AIX's promise to cover personal and advertising injuries under the CGL policy issued to Godtti. The judgment was affirmed. Plaintiff AIX Specialty Insurance Company is entitled to costs. ZALMA OPINION Appellate courts must interpret insurance contracts as a matter of law. The AIX IP exclusion was clear and unambiguous and fit clearly the wording and intent of the IP exclusion. The Court of Appeals had no choice, based on the facts, precedent and interpretation of clear policy wording but to affirm the trial court. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library/

Insurance Fraudster Tries Multiple Bases for Appeal & Still Goes to Jail Brian Higgins diverted for personal use funds he received from his mortgage servicer to repair damage to his home caused by a broken fish tank. He also filed a lawsuit against two witnesses for the prosecution, accusing them of misdirecting the funds instead of himself. For his conduct, a jury convicted Higgins on three counts of mail fraud under 18 U.S.C. §§ 1341-42 and two counts of retaliating against a witness, victim, or an informant under 18 U.S.C. § 1513(e). He appealed. In United States Of America v. Brian Higgins, No. 22-3538, United States Court of Appeals, Sixth Circuit (October 6, 2023) affirmed his conviction but gave him a win by requiring the District Court to reconsider the amount of restitution he must pay. FACTS In 2007, Higgins bought a house in Dayton, Ohio, which he financed with a $900,000 mortgage. By April 2010, Higgins had defaulted on his mortgage payments and, as of October 2016, still owed almost all that he had borrowed ($891,335.37). On top of that, the house was encumbered with about $815,000 in liens, including for federal taxes over the years. Higgins's 1,000-gallon fish tank sprang a leak and caused significant damage to the home. Higgins commissioned Michael Marshall and Scott Waters, contractors and owners of United Demolition, to do the work. But during their initial consultation, Higgins detailed his plan to divert the home repair funds for his own personal use. Higgins asked the contractors to help him with his plan by falsifying documents to procure the insurance monies. Unbeknownst to Higgins, however, the contractors were confidential informants for the FBI on an unrelated matter. Higgins was initially indicted for mail fraud, wire fraud and aiding and abetting. But after learning of the contractors' roles in the government's investigation, Higgins, while under arrest, filed a pro se lawsuit against them both, highlighting their roles as informants and alleging that they were the ones who defrauded Nationstar and the insurance company. The jury found Higgins guilty of three counts of mail fraud and two counts of retaliating against a government witness. The court sentenced him to an aggregate of 3 years' imprisonment and ordered him to pay $84,113.04 in restitution. ANALYSIS The Sixth Circuit noted that the trial court did not abuse its discretion when it denied Higgins's motion for additional Funds to hire an expert accountant and argued the district court erred when it admitted evidence of about $815,000 in liens that were on his residence when he filed his insurance claim. Higgins placed both his general and specific intent at issue when he pleaded not guilty to the mail fraud charges. Evidence of a defendant's financial condition was relevant and admissible for the proper purpose of establishing motive or intent in cases involving financial crimes. Higgins's significant financial woes revealed an incentive for him to use insurance monies for his own purposes rather than their intended purposes. Trial testimony bore this out; the contractors explained how Higgins misappropriated the insurance funds for personal business ventures. The government moved to introduce the recordings to prove retaliatory intent and common plan in relation to the witness retaliation charges. The parallel between Higgins's earlier advice to another person to flip and reverse allegations of wrongdoing against an accuser of that person and his later actions in accusing witnesses in his own case of the very crimes for which he stood trial was striking. The Sixth Circuit explained that any reasonable juror would understand that his statements were not confessions to any of the crimes charged. Rather, they would grasp that this evidence might shed light on Higgins's possible intent in filing suit against the contractors. Restitution Higgins's final challenge was to the district court's May 25, 2022, order of restitution. The recommended amount equaled the total funds Higgins diverted from the insurance disbursements. The Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A, requires the district court to award restitution to victims of fraud. Restitution must be awarded in the full amount of each victim's losses. That said, restitution is intended to compensate victims only for losses caused by the conduct underlying the offense of conviction. The Sixth Circuit affirmed Higgins's convictions and ordered the trial court to inquire further as to the appropriate amount of restitution due to Nationstar. ZALMA OPINION People who commit insurance fraud and are caught have chutzpah without limitation. This appeal, with dozens of pages of opinion to resolve the multiple complaints about his conviction that Higgins filed, the Sixth Circuit did away with all his arguments and threw him a bone by requiring the Circuit Court to reconsider the amount of restitution even though it will probably never be collected considering the debts that may have caused him to attempt insurance fraud. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library/

Insurer Not Required to Disclose How it Selects Limits and Premium Ira Trocki sued Pennsylvania National Mutual Casualty Insurance Company ("Penn National") for fraud related to certain insurance policies. The District Court granted summary judgment for Penn National. In Ira Trocki, trading as Jack Trocki Development, LLC v. Penn National Mutual Casualty Insurance Company, No. 22-1483, United States Court of Appeals, Third Circuit (September 13, 2023) the Third Circuit explained what is needed to prove fraud. FACTS Trocki, the owner of a real estate development and management company, purchased and renewed commercial insurance policies with Penn National through an insurance broker from 2006 to 2014. Prior to each annual renewal, Penn National provided Trocki's agent and Trocki with the renewal policy limit and premium to review. Trocki sued Penn National in federal court, bringing two claims for fraud, one for common law fraud and one for consumer fraud under the New Jersey Consumer Fraud Act ("NJCFA"). Trocki alleged that Penn National annually increased its coverage limits and insurance premiums without notice and that it was doing so to account for inflation. Trocki initially referred to this practice as "Inflation Guard," but now contends that he meant to refer to the practice of applying an automatic inflationary increase. The parties agree that "Inflation Guard," an optional coverage benefit that an insured must purchase separately, was not applied to Trocki's policies. The District Court concluded that Trocki fell short of making a prima facie case for either fraud claim. DISCUSSION Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact. There is a genuine factual dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. All facts are to be viewed in the light most favorable to the nonmoving party. Trocki argued that the District Court improperly granted judgment for Penn National on his claims under the NJCFA and for common law fraud. The NJCFA prohibits certain deceptive commercial behavior. For a claim under the NJCFA, a plaintiff must demonstrate: unlawful conduct by a defendant, an ascertainable loss, and a causal relationship between the defendant's unlawful conduct and the plaintiff's loss. A cause of action for common law fraud in New Jersey has five elements: a material misrepresentation of a presently existing or past fact; knowledge or belief by the defendant of its falsity; an intention that the other person rely on it; reasonable reliance thereon by the other person; and resulting damages. Trocki's argument was that Penn National applied some undisclosed inflation factor to increase the values of the properties covered by the Penn National policies. Trocki argued that the increase in building limit due to an automatic inflation increase is misleading and unclear in that it does not apprise the insured of why the building limit (and the premium) is being increased. The Third Circuit concluded that the District Court correctly found Trocki could not make a prima facie claim of common law fraud or consumer fraud under the NJCFA. To start, prior to the renewal of each policy, Penn National presented Trocki with what the new policy limit and premium would be, and Trocki had the opportunity to review, and then paid the new premium. Under New Jersey law there is no "duty to disclose" in a business transaction. Trocki was fully informed of the price and policy limits, and Penn National is not required to disclose precisely how it reached those numbers. Trocki failed to show, at a minimum, either a material misrepresentation, as required for a claim of common law fraud, or unlawful conduct, as required by the NJCFA. Judgment was affirmed. ZALMA OPINION Some people appear to believe that suing an insurance company is a perfect way to profit. Mr. Trocki renewed his policies annually, accepted the policy limits and premiums charged him, paid the premium and then after a few years decided to sue his insurers because Penn National failed to explain the methods it used to set the policy limits and premium. If he had a loss I doubt he would complain about the higher limits. The Third Circuit should have applied Rule 11 to this suit. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library/

Other Insurance Clause Only Applies to Concurrent Policies After the trial court granted the Travelers Indemnity Company and The Travelers Indemnity Company of Connecticut's (collectively Travelers) motion for partial summary judgment finding that indemnity costs incurred by Travelers in connection with the asbestos liabilities of defendants' subsidiary should be allocated on a pro-rata time-on-the-risk basis. In The Travelers Indemnity Company et al. v. Fishbach, L.L.C., et al., 2023 NY Slip Op 04741, Appeal No. 608, Index No. 657060/21 Case No. 2023-00815, Supreme Court of New York, First Department (September 26, 2023) resolved the dispute. DECISION The appellate court agreed with Travelers that it was not liable to cover costs incurred by the insured that occurred outside of the policy period and that any costs it was entitled to cover should be allocated pro rata over the entire period during which damages (personal injuries) occurred. Finding that the appeal was controlled by Keyspan Gas E. Corp. v Munich Reins. Am., Inc. (31 N.Y.3d 51, 61 [2018]), where the Court of Appeals found that the so-called "unavailability rule," which would require insurers to bear the risk for periods when applicable insurance coverage was not available in the marketplace, was inconsistent with the contract language that provides the foundation for the pro rata approach-namely, the during the policy period limitation-and that to allocate risk to the insurer for years outside the policy period would be to ignore the very premise underlying pro rata allocation Thus, with respect to insurance policy language like issued by Travelers, which limited indemnification to losses and occurrences during the policy period the insured, and not the insurer, bore the risk for those years during which such coverage was unavailable. Defendants' contention that Supreme Court (trial court in New York) erred by failing to give effect to the "other insurance" provisions in the Travelers policies was unavailing. New York law is clear that other insurance clauses do not apply to successive insurance policies thus, despite the fact that the subject provision contains no temporal or policy period limitation, when harmonized with the definition of bodily injury, the "other insurance" provision within the Travelers policies pertains to concurrent policies that named defendants (or their subsidiaries) as additional insureds. Defendants provided no evidence that the 1990 settlement with Travelers had anything to do with litigation commenced four years later the Supreme Court correctly determined that, as "the release explicitly limits itself to current and future obligations and liabilities for premiums," it was irrelevant to the allocation of indemnity costs. ZALMA OPINION New York ignored spurious claims and applied the clear and unambiguous language of the Travelers' policies to find that there can be no coverage applied as a result of an "other insurance" clause to other insurance in effect after the termination of the Travelers' policies. Sharing only occurs when policies in effect at the same time for the same loss both have other insurance clauses that require pro-rata sharing of losses not sharing four years after settlement for a different claim after expiration of the policy. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01 Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library/