Monthly Archives: October 2011

Mutual Benefit Insurance

Every Commercial Property Policy Needs A Waiver of Subrogation Subrogation is an equitable remedy whereby one who pays the debt of another is entitled to recover the payment from the person responsible. It is common in commercial leases and commercial … Continue reading

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No Exception to UIM “Regular Use” Exclusion

Does Public Policy Change a Policy Police officers, firefighters, and other governmentally employed first responders use government owned vehicles regularly as part of their work assignment. Most police agencies in major cities are not insured but self-insure. Their first responders … Continue reading

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“Other Insurance Clauses” Properly Ignored

Repugnant Clauses Disregarded Almost every liability insurance policy contain an “other insurance” clause that attempts to make other insurance available to the insured primary to the policy. However, because many of the policies have the same, or almost identical, wording … Continue reading

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Plain Meaning of Policy Rules

No Coverage for Unfair Practices When a manufacturer of juices made a product stating it was Pomegranate flavored but was primarily apple and grape juice, it was sued by competitors and a group of consumers for deceptive trade practices, among … Continue reading

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The Records Condition of First Party Property Policies

Iron Safe Many first party property policies, and almost all inland marine policies, contain a records clause or warranty that require that the insured maintain sufficient records to prove the amount of his loss. Records clauses were originally often called … Continue reading

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Don’t Shoot — It Will Cost You

An Intentional Act Is Not an “Accident” Lawyers for policyholders are creative people. Even when the clear and unambiguous language of an insurance policy eliminates coverage a lawyer will bring suit against the insurer seeking coverage that should not exist. … Continue reading

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Stupid Facts Make For Interesting Law

Insurance is a Contract of Personal Indemnity Insurance policies do not insure property. Insurance policies do not insure cars. Insurance policies, much to the surprise of the uninitiated, insures people against certain risks of loss specified in a policy. Therefore, … Continue reading

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NO ERISA PREEMPTION FOR UNFAIR INSURANCE PRACTICES

ERISA Preemption in Montana In 1987 the U.S. Supreme Court decided Pilot Life Insurance Co. V. Dedeaux, 107 S. Ct. 1549, 481 U.S. 41 (U.S. 04/06/1987) that held that the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. … Continue reading

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32 Years As My Own Man — 44 Years in Insurance

Barry Zalma, Inc. & Zalma Insurance Consultants In 1967 I became a trainee adjuster with the Fireman’s Fund American Insurance Companies while attending law school at night.  I was admitted to the California Bar as a lawyer on January 2, … Continue reading

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APPRAISAL IS MANDATORY IN AN INSURANCE DISPUTE

Appraisal Must Establish Loss Before Suit Against Insurer May Proceed Since the first standard fire insurance policy was mandated in New York in the 19th Century insurers and insureds who disputed the amount of loss had available the appraisal process … Continue reading

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When Title Proved No Case Against Title Insurer

Title Insurance Can’t Change Title Title insurance is a specialized type of insurance that is limited in its coverage and ability to respond to claims. It indemnifies the person(s) insured against certain enumerated risks of loss as a result of … Continue reading

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An Intentional Act Can Still Be An “Occurrence”

“Occurrence” Must Relate to the Insured When an insured in good faith hires an employee who turns out to be a child molester and molests a child who was a guest at the hotel where the employee worked his action … Continue reading

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More Fraud Attempts Fail

  Zalma’s Insurance Fraud Letter — October 15, 2011 Continuing with the twentieth issue of the 15th Year of publication of Zalma’s Insurance Fraud Letter (ZIFL) its author, Barry Zalma, reports that he has posted more than 253 articles on … Continue reading

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Who Got Caught?

Health Insurance Fraud Convictions From the Next Issue of Zalma’s Insurance Fraud Letter The following are excerpts from the next issue, 10/15/2011 of Zalma’s Insurance Fraud Letter which is always available free at http://www.zalma.com/ZIFL-CURRENT.htm. 33 Months For Medicare Fraud Bassey … Continue reading

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Insured and Insurer May Select Who Are Insured

Who Is The Insured? Insurance is a contract between an insurer and the person who sought to be insured. It is a contract of personal indemnity. “An insurance company is entitled to determine for itself what risks it will accept … Continue reading

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New California Statutes

The California Department of Insurance reports that Governor Brown has signed the following statutes that will be in effect on January 1, 2012: AB 315 authored by Assembly Insurance Committee Chair Jose Solorio on “Surplus Lines Insurance Marketplace Reform” (Chapter … Continue reading

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The Attorney Client Privilege is Not Absolute

When An Attorney Aids A Fraud The Communication is Not Privileged Lawyers Should Not Participate in Insurance Fraud Insurance fraud, especially when it involves No fault insurance, Medicare, Medicaid, and other government run medical services is rampant and convoluted. Lawyers, … Continue reading

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Man Bites Dog

An Effective Deterrent to Insurance Fraud Insurance fraud has been estimated to take between $80 billion and $300 billion a year from the insurance industry in the United States. Every state has a statute making insurance fraud a crime including … Continue reading

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The Policy Says Only What It Says

Limits Are Limits Just because, after an accident, an insured wishes he had higher policy limits does not mean the insured can change the language of a policy. That does not stop them from trying. In Paul Davis and Sarah … Continue reading

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No UM Coverage for Assault & Battery

Operation, Maintenance, or Use of an Automobile Is Required for UM Coverage Sometimes creative theories to bring an uninsured incident within coverage works. Most of the time the creativity fails. Uninsured motorist coverage requires that the injury that occurs must … Continue reading

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The Birth of The Covenant of Good Faith and Fair Dealing

Something Different Usually I write about new cases from U.S. Appellate courts. Today, we go back to the beginnings of insurance law and the covenant of good faith and fair dealing. The essence of insurance is the spreading of risk … Continue reading

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Additional Insured Coverage Established by Executed Contract

Additional insured coverage results in litigation on a regular basis. Insurers add additional insureds without individually underwriting the risk posed by the additional insured. Since most builders want to shift the risk of loss to those building structures they will … Continue reading

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Compliance With Conditions Must Be Proved

Failure to Prove Compliance With Conditions & Answer Investigative Questions If insurance fraud is suspected and the insurer demands examination under oath and production of documents it is the obligation of the person insured to cooperate fully. A suit against … Continue reading

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Misrepresentation of Material Fact Allows Insurer to Rescind

Don’t Lie to Your Insurer Almost every liability policy or errors and omissions policy issued in the United States asks if the potential insured knows of a claim that has been asserted against the potential insured. A false answer to … Continue reading

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CGL Provides No Uninsured Motorist Coverage

Arizona Court Refuses to Create Insurance Not Purchased When people fail to insure themselves they often attempt creative litigation to obtain coverage from others.  Sometimes the injured and their lawyers forget that the purpose of the Uninsured Motorist statute is … Continue reading

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Concurrent Cause Raises Possibility of Coverage and Requires Defense

Anti-Concurrent Cause Language Should Apply to Entire Policy Ever since the California Supreme Court decided State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal. 3d 94 [109 Cal. Rptr. 811, 514 P.2d 123] established the “concurrent cause” doctrine … Continue reading

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