Monthly Archives: September 2012

Sit On Your Rights — You Lose

When a Lien Is Not a Lien When a party has a lien against an insurer of a tortfeasor it must act diligently to protect its rights. That means it must do more than simply give notice to the insurer … Continue reading

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Discrimination Not “Personal Injury”

If Primary Has No Coverage for Defense Umbrella Must Drop Down and Defend When insurers sue each other the result is seldom what is expected. Since insurers are, by definition, professional risk takers, when there is a dispute between insurers … Continue reading

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Class Action Certified for Lender Requiring More Flood Insurance

THE MISCHIEVIOUS CLASS ACTION Home mortgage lenders are always concerned that their security is appropriately protected by insurance. As a result, by the terms and conditions, of the mortgage the lender keeps to itself the right to compel the borrower … Continue reading

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Condition Precedent Must Be Read Strictly

The Letter – Not Spirit – of Law Must Be Applied Surety is a type of insurance where the surety agrees to step into the shoes of a contractor to guarantee payments to subcontractors and materialmen for any work done pursuant … Continue reading

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Insurance Policy Means What It Says

It Is Always Fair to Apply Clear Policy Wording! For reasons known only to litigants, people who are insured continue to ask courts and courts of appeal to ignore the clear and unambiguous language of an insurance policy and provide … Continue reading

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Village of Kivalina Loses Another Environmental Case

As readers of Zalma on Insurance are aware we wrote about an environmental case brought by the Native Village of Kivalina at http://zalma.com/blog/?p=1792. The village has not give up but continues to lose. The Ninth Circuit Court of Appeal found … Continue reading

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Damages for Unsolicited Faxes Covered By Advertising Injury

Excluded After Loss Means Coverage Existed Before Because of the need to write insurance policies in easy-to-read, Sesame Street, English precision is often missing from insurance policies. As a result the easy-to-read policies generate more litigation than those most people … Continue reading

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Mortgagee Entitled to Appraisal

Amount of Loss to Be Determined as of Date of Loss Northern National Bank (“Northern”), an insured mortgagee claiming under a homeowner’s insurance policy issued by respondent, challenged a district court order confirming an appraisal award, arguing that the district … Continue reading

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No Duty to Defend Intentional Torts

Eight Corners Rule Controls Wendy Rutherford Branham appealed after  a summary judgment was granted in favor of State Farm Lloyds in Wendy Rutherford Branham v. State Farm Lloyds, No. 04-12-00190-CV (Tex.App. Dist.4 09/12/2012) after the trial court concluded that State … Continue reading

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Chick Hearn Was Right — No Harm, No Foul

Two Trials & Two Appeals – Agent Escapes $5 Million Verdict Sometimes, even when an insurance agent is negligent, when an insurance agent makes a stupid mistake, when an agent acquires insurance for which he is not licensed, when the … Continue reading

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Happy Birthday U.S. Constitution

Every member of the U.S. Armed Forces and the U.S. Government takes an oath to defend the Constitution of the United States. I was proud to do so when I volunteered to serve in the U.S. Army in 1964 and … Continue reading

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No Coverage For Participant In Drag Race

“Chutzpah” — Filing Suit for Speed Contest Injuries The danger of operating a motor vehicle in a race on city streets is obvious and well known. No insurer writes an insurance policy against injuries caused by participation in such a … Continue reading

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FAILURE TO NAME AN ENTITY AS INSURED MEANS NO COVERAGE

Penny Wise & Pound Foolish Insurance is a personal contract between an insurer and its insured. If the insured is a commercial entity with multiple divisions, joint ventures, limited liability corporations and partnerships all operating under the same management team … Continue reading

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Future Speculative Damages Not Subject to Judicial Ruling

No Diminution In Value After Accident in New Jersey Courts deal in damages that have occurred. Applying the unwritten rule of law that an insurance company is always wrong, a group of New Jersey plaintiffs attempted to obtain an order … Continue reading

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Exhaustion by Judgment Or Settlement Does Not Include Defense Costs

Insurance Policy Must be Read in its Entirety Multi-National businesses purchase liability insurance in multiple layers starting with a primary insurer that agrees to defend and indemnify the entity and multiple layers of liability insurance above the first layer. In … Continue reading

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No Insurance Today

This is September 11, 2012. It is time to pray for those lost on September 11, 2001 and those who are risking their lives, even today, to protect us.

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September 11, 2001

Insurance and The Act of Infamy Tomorrow Is the 11th Anniversary of the act of infamy at the World Trade Center (WTC) in New York City. Not only did the event awaken the country about the danger of  radical Islam, … Continue reading

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Subrogation Against Tenant by Landlord’s Insurer

Poor Lease Wording Cause Litigation Almost every modern commercial property insurance policy allows the landlord to waive its insurer’s right of subrogation as long as the waiver happens before a loss. Some even allow an insured landlord to waive subrogation … Continue reading

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NATIONAL FLOOD INSURANCE POLICY MAY NOT BE CHANGED

Standard Flood Policy Must Be Enforced The National Flood Insurance Program (“NFIP”) is a federal program created by the National Flood Insurance Act of 1968 (“NFIA”).  Noting that private insurers were not providing adequate flood insurance in many areas, Congress … Continue reading

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ARBITRATION FAVORED IN THE LAW

Litigation Must Be Stayed Pending Arbitration It is axiomatic that resolving disputes through arbitration is generally favored in the law. There is a strong presumption in favor of arbitration and courts will resolve any in favor of arbitrability. This rule … Continue reading

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INSURANCE IS A CONTRACT OF PERSONAL INDEMNITY

Insurer Must Approve Assignment of Policy to be Effective Insurance is a contract of personal indemnity. It is, by definition, a contract between the person insured and the insurer. It is axiomatic that an insurer has the right to select … Continue reading

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NOT ENOUGH PROSECUTIONS FOR INSURANCE FRAUD

Zalma’s Insurance Fraud Letter  September 1, 2012 Continuing with the seventeenth issue of the 16th Year of publication of Zalma’s Insurance Fraud Letter (ZIFL) Barry Zalma reports in the September 1, 2012 issue about an unsuccessful attempt to sue an … Continue reading

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POLICY CANCELLED NOT EFFECTED BY STATUTE

Statutes are Not Designed to Provide Coverage After Cancellation Statutes requiring insurers to give notice of renewal or non-renewal within a certain period of time before expiration of a policy are designed to protect people insured from surprise cancellations and … Continue reading

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