CGL Exclusion for Injuries to Children Ambiguous in Florida

By Barry Zalma, Attorney and Consultant The most difficult task faced by an underwriter, and those representing underwriters, is to write insurance policy provisions in clear and unambiguous language. It has become even more difficult when the underwriter is required to use language that is "easy...

The Failure of Punitive Damages

By Barry Zalma, Attorney and Consultant The Reasons for Punitive Damages Civil juries have a difficult enough time establishing appropriate numbers to indemnify a plaintiff so that he or she is back the way he or she was before the incident. To ask them to set an appropriate civil punishment...

Trespass Can Never be an Accident

By Barry Zalma, Attorney and Consultant Insurance Is Insurance is a contract where a person (the insurer) agrees to indemnify another (the insured) against certain defined risks of loss, damage, or liability arising from a contingent or unknown event. Intentional acts can never be "contingent"...

An Effective Assault & Battery Exclusion

Barry Zalma, Attorney and Consultant Artful Pleading Fails Insurers who insure bars and other places where alcoholic beverages are sold are loathe to insure the bar against liability for bar room fights, acts of security personnel (bouncers) or any form of assault or battery. Plaintiffs' lawyers...

Insurer Avoids Liability for Agent’s Fraud

By Barry Zalma, Attorney and Consultant Contract between Agent and Insurer The relationship between insurance agents and brokers with insurers is based upon the contract between the insurer and the agent or broker. When the agent or broker breaches the contract with an insurer by defrauding an...

Wager On Life Is Void -- Insurance Requires Insurable Interest

By Barry Zalma, Attorney and Consultant It is the essence of insurance that for insurance to exist the person insured must have an insurable interest in the property or life insured. Life insurance insurable interest can be defined as an interest based upon a reasonable expectation of pecuniary...

Policy Limits Are Policy Limits – The Policy Says Only What It Says

By Barry Zalma, Attorney and Consultant 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 K. Davis v. Travelers Property Casualty Company of America...

No ERISA Preemption for Unfair Insurance Practices in Montana

By Barry Zalma, Attorney and Consultant In 1987 the U.S. Supreme Court decided Pilot Life Insurance Co. V. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (U.S. 04/06/1987) , that held that the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §...

Stupid Facts Make For Interesting Law – No Fault Auto Insurance is a Contract of Personal Indemnity

By Barry Zalma, Attorney and Consultant Insurance policies do not insure property. Insurance policies do not insure cars. Insurance policies, much to the surprise of the uninitiated, insure people against certain risks of loss specified in a policy. Therefore, if a person has an automobile insurance...

Trusted Insurance Broker Steals From Friends, Relatives and Fellow Congregants – Nine Years in Prison

Walter Marion Williams pleaded guilty to one count of mail fraud, in violation of 18 U.S.C. § 1341 , and was sentenced to a term of 108 months' imprisonment to be followed by 3 years of supervised release. Williams appealed from his sentence, which he argued was an unreasonable upward variance...

Faulty Workmanship is Not an “Occurrence” But the Damage it Does Is an Occurrence

By Barry Zalma, Attorney and Consultant The Wisconsin Court of Appeal was called upon to resolve a dispute that arose out of damages suffered by VPP Group, LLC the grew from construction work being performed by contractors on a building owned by VPP. VPP was insured by Acuity. Acuity paid the damage...

State Supporters of Terrorism Must Pay Insurers - Judgment for Insurers Against Syrian Government

By Barry Zalma, Attorney and Consultant Several insurers who paid for an airliner after a 1985 hijacking sued state sponsors of terrorism to recover, in subrogation, what they had to pay the owners of the airliner destroyed by terrorists. In Certain Underwriters at Lloyd's, London, et al. v....

The Grim Reaper Pays Nothing: Body Lost – Suit Follows

By Barry Zalma, Attorney and Consultant The U.S. District Court for the Eastern District of Michigan was asked to grant Defendant Netherlands Insurance Company's Motion for Summary Judgment. Plaintiffs filed suit for declaratory relief and sought coverage under a cemetery's insurance policy...

No Surprise – Raw Sewage Is A Pollutant

By Barry Zalma, Attorney and Consultant The Colorado Court of Appeal was called upon to determine whether an "absolute pollution" exclusion (APE) applied to a suit for bodily injuries exposed to raw sewage. Plaintiffs, Shadi Figuli, Joshua Figuli, and Jean Chu, appealed the district court's...

Who’s On First – The Selective Tender Rule

By Barry Zalma, Attorney and Consultant The Illinois Court of Appeal was asked to resolve a dispute between the Illinois School District Agency (ISDA), a provider of commercial general liability insurance and St. Charles Community Unit School District 303 (District) concerning a series of lawsuits...

It is Important to Honor Substance Over Form

By Barry Zalma, Attorney and Consultant In the Maryland motor vehicle insurance law, the phrase "first named insured" makes what the Court of Appeals of Maryland calls "a cameo appearance" in Kelly Swartzbaugh, et al. v. Encompass Insurance Company of America , No. 100 (Md. 04/25...

Free Zalma’s Insurance Fraud Letter May 1, 2012

By Barry Zalma, Attorney and Consultant In this, the ninth issue of the 16th year of publication Zalma's Insurance Fraud Letter (ZIFL), ZIFL reports on: 1. Barry Zalma reports on an interesting appellate decision that convicted a person for failing to advise his insurer that he intentionally...

Colorado Allows Doctor’s Billing Rather Than True Value of Services

By Barry Zalma, Attorney and Consultant The Supreme Court of Colorado was asked to review an unpublished decision of the Court of Appeal in in Sunahara v. State Farm Mutual Automobile Insurance Co. , No. 09CA0599, slip op. (Colo. App. May 6, 2010) (not selected for official publication), to determine...

Med Pay Is For Benefit Of Injured

By Barry Zalma, Attorney and Consultant Patricia Meleski appealed a trial court's non-final order dismissing on summary judgment her bad-faith claims against Partners Mutual Insurance Company. In Patricia Meleski v. Schbohm LLC and Partners Mutual Insurance Company , No. 2010AP2951 (Wis.App. 05...

Duty to Settle Requires a Willing Plaintiff – No “Bad Faith” Failure to Settle

By Barry Zalma, Attorney and Consultant In March I posted an article on the need to put a stake through the heart of the tort of bad faith . The post that follows deals with a case that supports the position I took in that post and makes me wonder why more courts don't recognize the inequity...

The Right to Stack UM Coverage Can Be Waived

By Barry Zalma, Attorney and Consultant People who insure their cars in Pennsylvania have the right to stack coverages for uninsured motorist ("UM") or underinsured motorist ("UIM") coverages if they insure more than one vehicle with their insurer. The Pennsylvania statutes allow...

No Coverage For Participant In Drag Race

By Barry Zalma, Attorney and Consultant "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 dangerous risk...

An Apple Can Never Be An Orange – Regular Use Exclusion Effective

By Barry Zalma, Attorney and Consultant Erie Insurance Exchange ("Erie") appealed to the Superior Court of Pennsylvania from the grant of summary judgment in favor of Patrick and Daryl Rother ("Mother") in a declaratory judgment action involving the applicability of the regularly...

Wasteful Litigation – Failure To Read Policy No Excuse

By Barry Zalma, Attorney and Consultant Insurance is, and has always been a contract. In modern practice insurance policies are written in easy to read language that requires nothing more than a fourth grade education to understand. Regardless, the public still believes they are difficult to read...

Absolute Immunity – Insurance Criminal May Not Sue State Officers

By Barry Zalma, Attorney and Consultant States are called upon to enforce sanctions against insurance agents and brokers who violate the law and defraud the public. In doing so they act as both police agencies and administrative agencies dealing with licenses to practice insurance. Because criminals...