No Right to Benefits for Failure to Fulfill Condition

Zalma on Insurance in top 50

On September 20, 2005, the plaintiff/appellant, Daniel Shaw (hereinafter “Shaw”), was involved in a one-vehicle car accident. On September 27, 2007, Shaw filed a lawsuit against Nationwide Insurance and Robert Steinbach & Associates (hereinafter “Nationwide”). Shaw sought benefits for no fault/personal injury protection (hereinafter “PIP”), personal injury, pain and suffering, lost wages, automobile replacement, and slander.

At a bench trial held on February 14, 2011, the trial court granted Nationwide’s motion for a directed verdict as to Shaw’s claims for slander, pain and suffering, and lost wages. The court denied the motion as to Shaw’s remaining claims for PIP, personal injury, and property damage. After trial, the court reserved decision and the parties submitted post-trial memoranda.

By decision dated May 9, 2011, the trial court entered judgment in favor of Nationwide. In its nineteen-page decision, the court concluded that Shaw had not met his burden of proof to establish Nationwide’s liability under theories of breach of contract for claims under the PIP or physical damage clauses of the automobile insurance policy. Shaw appealed the trial court’s decision to the Superior Court. After the parties’ submitted briefs, the Superior Court in an eighteen-page memorandum opinion affirmed the judgment of the trial court. In its conclusion, the Superior Court stated:

Shaw was not entitled to compensation for his personal injury claims because he failed to comply with all conditions precedent to Nationwide’s performance. The Court also finds no error in the …  finding that Shaw’s policy did not include coverage for his property loss.

Shaw appealed the Superior Court’s decision to the Delaware Supreme Court in  Daniel Shaw v. Nationwide Insurance Co. and Robert Steinbach & Associates, No. 9, 2012 (Del. 07/31/2012) that concluded that the factual findings of the trial court were supported by the record and were the product of an orderly and logical reasoning process.

ZALMA OPINION

In an amazingly brief opinion the Delaware Supreme Court stated the rule of law everyone must follow when presenting a claim to an insurance company: Fulfill the conditions precedent to receipt of indemnity. Because the plaintiff failed to prove he had fulfilled the conditions precedent to receiving the benefits promised by the policy he deprived himself of the benefits sought. He has no one to blame than himself.

© 2012 – Barry Zalma

Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders.

He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant.

Mr. Zalma recently published the e-books, “Zalma on Insurance Fraud – 2012″; “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit”  and others that are available at www.zalma.com/zalmabooks.htm.

Mr. Zalma can also be seen on World Risk and Insurance News’ web based television program “Who Got Caught” with copies available at his website at http://www.zalma.com.