Author Archives: Barry Zalma

About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.

Utah Eliminates Tort Defense by Statute

Statute Requires Insurer to Pay for Injuries Incurred Without Fault of Driver For a person to be responsible for injuries resulting from the operation of an automobile the persons injured must prove that the driver had a duty to operate … Continue reading

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To Find Actual Cash Value Labor as well as Components Must be Depreciated

No Component of a Property Exists Without the Labor to Make It The definition of the term “Actual Cash Value” (ACV) has been difficult for insurers over the last few decades. States and insurers define it differently. Some insurers, attempting … Continue reading

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No Premium No Policy

Insurer Cancels Policy for Non Payment of Premium Many people across the U.S. use debit cards, credit cards and access to checking account to pay ongoing debts automatically. For such a system to work the checking account must have sufficient … Continue reading

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Failure to Prove Lack of Insurance Fatal to UM Claim

Incompetent Trial Evidence Loses UM Coverage When an insured sues its Uninsured/Underinsured (UM) Motorist insurer the insured need only prove that the motorist who damaged the insured in an auto accident it need only prove that the person responsible for … Continue reading

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No Proof of Loss No Flood Coverage

Flood Insurance Conditions Must Be Strictly Construed Catastrophes cause as many legal problems as they cause damage to property. Super Storm Sandy is a catastrophe that seems to prove the proposition. People who acquire a flood insurance policy based upon, … Continue reading

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When a Policy Is Not Illusory

A Crane On a Skyscraper Is an Excluded Tool No insurance policy covers every eventuality that can damage property. All insurance policies contain exclusions advising the insured of those certain risks of loss the insurer is unwilling to accept. People … Continue reading

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Contempt Sanctions Not Insurable Damages

Lawyers Held In Contempt Cannot Receive Defense or Indemnity From E&O Insurer Lawyers acting badly can cause problems for others. When a group of lawyers violated a court order and caused a company to be sued who would never have … Continue reading

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Zalma’s Insurance Fraud Letter — February 15, 2017

Lie on Health Insurance Application Is Criminal   Zalma’s Insurance Fraud Letter, Volume 21, No. 3 Zalma’s Insurance Fraud Letter, Volume 21, No. 4 Every Insurance Adjuster Must Be Trained About Fraud In the last 49 years that I have … Continue reading

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Claim of Estoppel Does Not Create Coverage

Coverage by Estoppel Requires Evidence of Prejudice Emulating their brother jurists in New York the District Court of Appeal of Florida wrote a succinct, brief and easy to understand an insurance coverage dispute. In Progressive Express Insurance Company v. Anzualda … Continue reading

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Sovereign Immunity Statute Causes Coverage Issue

Governmental Insurers and Insured’s Litigate Because of Failure to Deal With State Statutes A Florida county bought an excess insurance policy from Star Insurance Company with a self insured retention of $350,000 at the same time a state statute waived … Continue reading

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Breach of Lease Forfeits Right to Sue Lessor

Lessee Who Does Not Buy Required Liability Insurance for Lessor Loses Commercial leases, as a matter of course, require the lessee to obtain liability insurance in favor of the lessor. The insurance condition is usually a condition precedent and failure … Continue reading

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Emotional Decision of Jury Overturned

Two Juries Give Verdict to Church and Ignores Law Juries are made of humans who wish to provide justice. On a rare occasion a jury will ignore the law to help a plaintiff they feel is more righteous than the … Continue reading

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Excellence in Claims Handling

It is Time For Insurers to Require Excellence from Their Claims Staff In search of profit, insurers have decimated their professional claims staff. They laid off experienced personnel and replaced them with young, untrained, unprepared people. A virtual clerk replaced … Continue reading

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Failure to Conduct Real Investigation Supports Bad Faith Judgment

Hiring Counsel Not Investigation In the last few decades insurance companies, recognizing that their failure to train their new claims staff, failure to keep experienced claims staff, and failure to require a staff that can provide excellence in claims handling, … Continue reading

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Pollution Exclusion Unambiguous

After Insurer Proves Exclusion Applies Burden Shifts to Insured to Prove Otherwise Pollution exclusions have been rewritten over the last few decades until courts now agree that the absolute pollution exclusion is not ambiguous. In Hiland Partners GP Holdings, LLC … Continue reading

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New Jersey Eliminates Stink Over Assignments of Claims

Non-Assignment Clauses Only Prevent Assignment of Policy Not a Perfected Loss and Claim Every third party liability insurance policy contains an anti-assignment condition that prevents an insured from assigning the policy to a third party without the permission of the … Continue reading

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Judge Gorsuch on Insurance

Entire Policy Must Be Read – Not Just Selected Parts Since Tenth Circuit Judge Gorsuch has been submitted to the U.S. Senate to be confirmed to sit on the U.S. Supreme Court I thought it would be interesting to review … Continue reading

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Zalma’s Insurance Fraud Letter – February 1, 2017

Lie on Health Insurance Application Is Criminal   Zalma’s Insurance Fraud Letter, Volume 21, No. 3 Every Insurance Adjuster Must Be Trained About Fraud In the last 49 years that I have been in the business of insurance I have … Continue reading

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Four Corners Rule Strikes Again

Employee’s Suit Against Employer For Mesothelioma Barred by Workers’ Compensation Exclusivity Every state in the United States has a workers’ compensation system where, to avoid the need to prove liability of an employer who is believed to have negligently injured … Continue reading

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Injury to One Spouse Not Injury to Other

Creative Argument Fails Lawyers are creative people. They try to protect their clients and provide benefits to their clients by making creative arguments. Those creative arguments are often effective but are often just plain ridiculous. In Lambert v. Nationwide Mutual … Continue reading

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Undisputed Material Misrepresentation Sufficient to Support Rescission

Misrepresentation to Save Premium Eliminates Coverage People who have no experience with insurance when faced with a potential savings of insurance premium if the insured does not present true facts to the insurer is exceedingly expensive and can surprise the … Continue reading

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Material Misrepresentation Sufficient to Rescind PIP Policy

Innocent Party Doctrine Not Applicable to Commercial Insurance I continue to report, until I turn blue in the face, that the covenant of good faith and fair dealing applies equally to the insured as it does to the insurer. Insurance … Continue reading

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Lie on Health Insurance Application Is Criminal

Stupidity is No Defense to Insurance Fraud Crime In an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant Marvin Arnold guilty of one count of insurance fraud, a felony of the fourth degree, … Continue reading

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It is Expensive if an Insured’s Lawyers Don’t Read and Understand Policy

Insured May Not Expect Payment if it Settles Claim Without Insurer’s Consent Lawyers have an obligation to protect their clients from wasting money and need to understand insurance before entering into an agreement to settle a third party law suit. … Continue reading

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It’s Not Nice to Apply Policy Condition but it is Proper

No Excuse for Failure to Promptly Give Notice of Loss New York law, unlike most states, properly requires that an insured must comply with the condition requiring prompt notice and refuses to apply the so-called notice-prejudice rule. U.S. Courts, like … Continue reading

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Consent to Call Defeats TCPA Suit

Robo-Calls Are Not Always Wrongful I, like everyone else, hate receiving unsolicited robo-calls. They are especially annoying during the political season or from surveyors who want my opinion on products I would never use. The Congress enacted Telephone Consumer Protection … Continue reading

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Strained, Forced or Unrealistic Construction Of Insurance Not Allowed

Ambiguity Is not Certain When Term Not Defined Insurance policies cover many and varied causes of loss. Insurance policies do not cover every possible cause of loss. Even the most broad all risk policy of insurance contains exclusions describing risks … Continue reading

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Insured v. Insured Exclusion

A D&O Policy Does Not Apply To a Suit by an Insured Against a Co-Insured Almost every policy of liability insurance contains an exclusion that prevents coverage to apply when one insured sues another. The reason for the exclusion is … Continue reading

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Zalma’s Insurance Fraud Letter – January 15, 2017

The New Year’s Reminder of Red Flags of Fraud  Every Insurance Adjuster Must Be Trained About Fraud In the last 49 years that I have been in the business of insurance I have learned the one thing that is a … Continue reading

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Cannot Create Coverage by Waiver

Insured Only Gets Coverage Purchased There are many reasons for which people buy insurance. Insurers provide multiple coverages on a homeowners policy from the basic ISO form and additional coverages provided by endorsement for an extra premium. The insured is … Continue reading

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Ketchup on Heinz’ Face Because it Lied to its Insurer

Policy Void From Its Inception if Obtained by a Lie Every policy of insurance includes an unwritten covenant – promise – to deal fairly and in good faith with the parties to the contract. The promise to deal fairly devolves … Continue reading

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The Purpose of An Insurance Fraud Investigation

 Insurance Fraud Investigations The purpose of an insurance fraud investigation is to gather evidence to establish whether a suspected fraudulent claim is legitimate or is, in fact, an attempt to defraud the insurer. If the facts reveal the claim is … Continue reading

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Broker Not Responsible for Fraudulent Insurer

 Broker Must Owe A Duty To Be Held Responsible for Failure of Insurance Complex insurance programs are required to properly insure major property owning organizations require the services of multiple brokers and sub-brokers. Because of the complexity of the insurance, … Continue reading

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Imperfect Claims Handling Not Bad Faith

Insured is Obligated to Assist Insurer in Effecting Settlement No plaintiffs’ lawyer with a high value case will accept policy limits from an insurer without first learning whether the insured has assets that are collectible if a judgment is entered … Continue reading

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Insurers are Only Obligated to Provide the Insurance Ordered

Insured Must Take Responsibility For His Policy Insurance is a contract between the insurer and the person insured. Insurance companies sell to the insured the coverage requested. Insurers have no obligation to force, or even advise, the insured about the … Continue reading

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The Problem With Easy to Read Policies

By Making Insurance Companies Write “Easy to Read” Policies Ambiguities Are Created In an attempt to protect people from insurance companies almost every state has enacted statutes or regulations that require all policies be written in “easy to read” language … Continue reading

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Litigation Only Because Mortgagee Failed to Confirm Existence of Insurance

Premature Motion for Summary Judgment Fails It is essential that when a contract requires a person who buys a property must insure against fire must be careful to confirm that the buyer actually maintains a policy.  When the parties to … Continue reading

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Lie on Application — Lose All Coverage

Rescission Appropriate When Applicant Misrepresents Use of Vehicle When a prospective insured seeks insurance he or she submits an application to an insurance company as the set of facts used by the insurance company in determining whether it is willing … Continue reading

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Zalma’s Insurance Fraud Letter – January 1, 2017

2017 and Insurance Fraud May you all have a Happy and profitable New Year and may all fraud perpetrators spend 2017 in prison. Every Insurance Adjuster Must Be Trained About Fraud In the last 49 years that I have been … Continue reading

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Racial Discrimination is Not an “Occurrence”

All Racial Discrimination Acts are Intentional Racial discrimination is wrongful under all circumstances. By definition discrimination is an intentional act. Girard and Lindsay Jones appeal a judgment dismissing their state and federal disparate treatment housing discrimination claims against John Baecker. … Continue reading

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