Monthly Archives: October 2015

You Will Lose Your Rights if you Sit on Them

  Brief Opinion Explains Why Failure to Sue Promptly Is Prohibited If an insurance company treats you, its insured, badly you have every right to sue it to recover the proceeds of the policy and under certain circumstances, tort damages. … Continue reading

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STOLI Fraud Is Despicable

Seventeen Years in Prison for STOLI Fraud Conspiracy Life insurance is designed to protect families against the unexpected death of a family member on whom the family relies for its livelihood. It is not designed as a profit making enterprise. … Continue reading

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Fiduciary Who Must Obtain Insurance Ordered

No Liability for Broker Fiduciary Who Fulfills Promise to Buy Policy Insurance brokers can be found to have a fiduciary obligation to the insured, a duty greater than that of the average agent who needs only to get the insurance … Continue reading

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Can an Insurer Be a Victim?

Restitution in Ohio Is Limited to Amounts Not Covered by Insurance Insurance is a risk spreading device. It is not a social welfare program. When an insurer pays its insured for a loss it steps into the shoes of the … Continue reading

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Prior Publication Defeats Coverage

Insurance Must be in Effect at Time of Loss Insurance, as I have said here many times, requires that any loss reported to the insurer must be fortuitous as it relates to the terms and conditions of the policy. When … Continue reading

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Again Court is Asked to Decide Who’s On First

Primary v. Excess Litigation to Determine What Should Have Been Decided Between the Insurers In major construction contracts multiple parties insure each other  as additional insured and each claim the other must defend and indemnify with each insurer wishing to … Continue reading

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Definitions Make Policy Wording Clear & Unambiguous

Insured May Not Recover For Expenditures to Avoid Collapse Insurance is nothing more than a contract that must be interpreted as written. When a property is threatened with imminent damage a homeowner has a personal obligation to protect the property … Continue reading

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Suing an Insurance Company Can be Expensive

Notice Must Be Provided E&O Insurer Promptly Lawyers are often wiley. Even when they admit to error they do everything possible to pass the obligation for their error to another. This fact, coupled with the opportunity to profit by suing … Continue reading

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An Occurrence Is a Single Unified Event

Insurers Attempt to Avoid Defense Fails Liability insurance is a contract containing multiple promises including the promises to defend and indemnify the insured. The promises to defend and indemnify can be avoided by other contract terms like exclusions, limitations and … Continue reading

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Public Adjuster With Contingent Fee Contract Cannot Testify as an Expert

Expert Must Be Impartial Public adjusters almost always work on a contingency fee basis by entering into a contract with the insured to take an assignment of a percentage of whatever is paid by the adjuster’s client’s insurer. That fee … Continue reading

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More than Judgment Is More Than Enough

Greed Succeeds But Still Not Enough Alabama has an interesting procedure when dealing with underinsured motorist (UIM) benefits. If the Underinsured Motorist’s insurer offers its limits and the UIM insured does not want to accept the offer the UIM insurer … Continue reading

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You Only Get What You Order

Request for “Full Coverage” Is Not Specific Enough to Hold Agent Liable It is common knowledge that most people buy insurance based on price and do not read anything provided to them by their insurance company. It is only when … Continue reading

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Zalma’s Insurance Fraud Letter — 10-15-2015

The Essential Resource For The Insurance Fraud Professional A ClaimSchool ™  Publication, Written by Barry Zalma, Esq., CFE ©  2015 ClaimSchool, Inc. & Barry Zalma Volume 19, No. 20 –  October 15, 2015 Subscribe to e-mail Version, it’s Free! or … Continue reading

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Mistake of Legal Effect of Agreement Not Enough to Reform a Contract

Poor Lawyering Can’t Be Cured By Changing Contract Greed, including the need seek punitive damages from an insurer, results in settlements where the defendant assigns its rights to sue its insurer, often results in poorly drafted agreements. The Supreme Court … Continue reading

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Follow Rules or Else!

Tardy & Incomplete Expert Report Stricken The bane of every expert witness is the client who seeks an expert report shortly before the deadline set by the court. I have been called two hours before the deadline, sometimes a day … Continue reading

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Actual Controversy Required for Declaratory Relief

No Cover No Bad Faith Plaintiffs and their lawyers prefer to sue insurance companies for bad faith because the fear of tort and punitive damages will often cause an insurer to pay a quick settlement of a tort or uninsured/underinsured … Continue reading

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$40 Million Bad Bet

The Insurance Version of a Bird In Hand Is Better than $40 Million in the Bush When an insurer refuses to defend or indemnify its insured the insured is left to defend itself. The ability to recover tort and punitive … Continue reading

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Court Rules in part in Favor of Defendant Who Defaulted

Pre-Existing Condition or Waiting Period Exclusion In common use allowing a default to be entered against a defendant is tantamount to admitting that the allegations of the complaint are true. However, courts have discretion to review the facts and rule … Continue reading

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McCarran-Ferguson Act Prohibits RICO Action Against Insurer

Lack of Privity Prevents Adjuster From Being Sued For Bad Faith Plaintiff The William Powell Company (“Powell”), an Ohio corporation, has manufactured industrial valves since at least 1846. It attempted to make a RICO action into a bad faith case … Continue reading

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Insured Must Rebuild to Collect Holdback

Actual Cash Value Limit Unless Insured Actually Replaces Plaintiff Robert Lytle challenges the trial court’s dismissal of his second amended complaint alleging breach of contract and seeking costs and penalties against defendant Country Mutual Insurance Company (Country Mutual). The trial … Continue reading

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Lie to Your Insurer at Your Risk

Material Misrepresentation Voids Coverage Ernest Warren Farr, Jr. (Warren) and Debbie Holmes (Debbie) entered into an insurance contract with American National Property and Casualty Company (ANPAC) to insure a pontoon boat and trailer. Debbie and Warren later submitted a claim … Continue reading

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Materiality Needed to Rescind a Policy

Question of Fact Defeats Summary Judgment Misrepresentation of a material fact in an application for insurance, knowingly made, is sufficient in most states to rescind a policy of insurance. In states that apply the “Marine Rule” like California, a misrepresentation … Continue reading

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Zalma’s Insurance Fraud Letter – October 1, 2015

October 1, 1979 – 2015 Another Anniversary Thirty six years ago today I left the world of the employed and became an entrepreneur by opening my own law firm that was incorporated shortly thereafter as Barry Zalma, Inc. When I … Continue reading

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