Podcasts about state farm fire

Barger v. State Farm Fire

Send us a textJana and Gabe discuss the open position on the Oklahoma Supreme Court, the new database of unpublished opinions on OSCN, and more. We also go over these new cases from the OKSCT: 2025 OK 2, 01/14/2025, IN THE MATTER OF THE GUARDIANSHIP OF G.E.M.S.2025 OK 3, 01/14/2025, KITE v. CULBERTSON2025 OK 4, 01/22/2025, CHEROKEE NATION v. UNITED STATES DEPARTMENT OF THE INTERIOR2025 OK 5, 01/22/2025, ROWAN v. STATE FARM FIRE & CASUALTY CO.2025 OK 6, 01/22/2025, JOLLEY v. McCLAIN2025 OK 7, 01/22/2025, CUMMINGS v. SASNETT

Michael Kaufman v. State Farm Fire and Casualty Company

A young couple lives together in St. Pete, Florida. Their friend was vacationing in Italy for a month and asked them to dog sit for her 3 year old pit bull rescue, who had a checkered past but was doing well lately. The couple took in the dog, and one night they threw a dinner party. Out of nowhere, the dog attacked one of the guests, biting him in the leg. In the resulting chaos, blood got all over the expensive white wool carpet. The man got his leg treated at the hospital, he was fine– not suing! – the dog was returned to the shelter and now the couple is making an insurance claim to replace their blood-stained carpet under Section I of their HO3. Notable Timestamps [ 00:16 ] - Today's scenario involves an insured with a dog that was not theirs, with some history of aggression but not recently, injuring a guest to their home, where the injury is not at issue but the carpet is. It's a complex situation! [ 01:12 ] - Mike shares a harrowing tale and Alissha argues on behalf of the dog. [ 03:40 ] - There's an exclusion for losses caused by “animals owned or kept by an insured.” The dog could be considered “kept” by the insureds because they hosted it for months. [ 04:40 ] - There is a case to be made that this exclusion is only for “normal” pet damage like chewing, drooling, vomit, pooping, etc. It is grouped in wear & tear, and a dog bite could be described as fortuitous. However, some courts have disagreed. See resources below for citations. [ 07:19 ] - Losses “caused by” pets are excluded, but losses that “ensue from” or “result from” pets are covered. If a dog knocks over a candle, that could be an ensuing loss, whereas a dog drooling on something could be a cause. It's a hairline distinction. [ 10:03 ] - You can look at state case law for your particular state for prior rulings on ensuing loss. [ 11:00 ] - Blood is arguably a liquid & contaminant under the pollution exclusion. Such claims often involve emotional considerations. [ 12:50 ] - According to a recent Florida case, blood is not a pollutant. See resources below for citations. [ 13:30 ] - If there's a Coverage C Peril, the exclusion would not apply.  [ 15:33 ] - Tim provides a recap of the scenario and the points above. Your PLRB Resources Related Case: Bjugan v. State Farm Fire and Casualty Co., No. 13-35927, 2016 WL 1072207 (9th Cir. (Or.) 3/18/16) (unpublished) (U.S. Court of Appeals for the Ninth Circuit, applying Oregon law) [reviewed at PLRB, Prop. Ins. L. Rev. 9398 (2016)]. https://www.plrb.org/documents/bjugan-v-state-farm-fire-and-casualty-ins-co-2016/ Related Case: Nolan v. Auto-Owners Ins. Co., No. 301106, 2011 WL 5865522 (Mich. App. 11/22/11) [reviewed at PLRB, Prop. Ins. L. Rev. 8351 (2011)] (unpublished). https://www.plrb.org/documents/nolan-v-auto-owners-ins-co-2011/ Related Case: Fla. Farm Bureau Gen. Ins. Co. v. Worrell, No. 5D21-3196, 2023 WL 3130872, — So.3d —- (Fla. App. 5th DCA 4/28/2023) (Florida District Court of Appeal, 5th Dist., applying FL law) [reviewed at PLRB, Prop. Ins. L. Rev. (2023)]. https://www.plrb.org/documents/fla-farm-bureau-gen-ins-co-v-worrell-2023/ Coverage Question - Pet Dog Attacked Owner; Blood on Carpet - https://www.plrb.org/documents/pet-dog-attacked-owner-blood-on-carpet-pcq-2023-10-27-twh-b/ Coverage Question - Pollutant Exclusion: Deer Crashes Through Window and Blood Destroys Carpet - https://www.plrb.org/documents/pollutant-exclusion-deer-crashes-through-window-and-blood-destroys-carpet-pcq-2017-03-21-slc-b/ Coverage Question - Are Blood and Bodily Fluids Pollutants under Coverage A Dwelling? - https://www.plrb.org/documents/are-blood-and-bodily-fluids-pollutants-under-coverage-a-dwelling-pcq-2024-02-09-mrh-a/ Employees of member companies also have access to a searchable legal database, hundreds of hours of video trainings, building code materials, weather data, and even the ability to have your coverage questions answered by our team of attorneys (https://www.plrb.org/container.cfm?conlink=sec/cq/default.cfm) at no additional charge to you or your company. Subscribe to this Podcast Your Podcast App - Please subscribe and rate us on your favorite podcast app YouTube - Please like and subscribe at @plrb LinkedIN - Please follow at “Property and Liability Resource Bureau” Send us your Scenario! Please reach out to us with your scenario! This could be your “adjuster story” sharing a situation from your claims experience, or a burning question you would like the team to answer. In any case, please omit any personal information as we will anonymize your story before we share. Just reach out to scenario@plrb.org. Legal Information The views and opinions expressed in this resource are those of the individual speaker and not necessarily those of the Property & Liability Resource Bureau (PLRB), its membership, or any organization with which the presenter is employed or affiliated. The information, ideas, and opinions are presented as information only and not as legal advice or offers of representation. Individual policy language and state laws vary, and listeners should rely on guidance from their companies and counsel as appropriate. Music: “Piece of Future” by Keyframe_Audio. Pixabay. Pixabay License. Font: Metropolis by Chris Simpson. SIL OFL 1.1. Icons: FontAwesome (SIL OFL 1.1) and Noun Project (royalty-free licenses purchased via subscription). Sound Effects: Pixabay (Pixabay License) and Freesound.org (CC0). Ink Bleed 4: https://vfx.productioncrate.com/video-effects/footagecrate-inkbleed-4  

Great American Insurance Compa v. State Farm Fire and Casualty C

Why do some courts and lawyers instinctively react to examinations under oath (EUOs), also called sworn statements, as if they're "secret depositions?" When conducted properly, they clearly aren't. But the issue still arises from time to time. In this episode Garrity talks about two recent court rulings. One is from a Florida federal judge that rejected an effort to have the court treat EUOs and depositions as one and the same. The other, from South Carolina, sanctioned a defendant for taking an EUO that the court said in essence was the very deposition the court had forbidden. Garrity offers some fantastic thoughts and tips for conducting EUOs in a way that mnimizes the risk a court will confuse them with depositions, which are an intellectually and procedurally different animal.SHOW NOTESFed. R. Civ. P. 30, Depositions by Oral Examination (main federal deposition rule, outlining the procedural requirements for an oral examination to constitute a deposition)Order Denying Defendant's Motion to Strike Sworn Statement, etc. Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 46, (N. D. Fla. Sep. 21, 2023) (rejecting argument that a sworn statement taken with a court reporter under oath is a deposition; further, “The traditional practice of securing affidavits for use in support of summary judgment often involves a statement written by counsel specifically for that purpose, which is then presented to and signed by the affiant. This Court fails to see how an unedited transcription of the witness's own words, is not, if anything, substantially more reliable than the traditional alternative”)Defendant's Motion to Strike, etc., Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 38, (N. D. Fla. filed August 11, 2023) (unsuccessfully arguing that sworn statements or EUO's “are simply unnoticed depositions”)Reed v. Aetna Casualty and Surety Company, Inc., 160 F.R.D. 572 (N.D. Ind. Mar. 29, 1995) (rejecting motion to strike statement of plaintiff conducted by plaintiff's counsel under oath and before a court reporter; rejecting arguments that statement could not be considered because it wasn't signed by the plaintiff, contained leading questions, and was taken without defendant having the opportunity to cross-examine the witness, saying defendant was in the same position it would have been if an affidavit by the witness had been filed, as the defendant would not have been able to cross-examine the affidavit, either)Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005) (rejecting argument that statement made under oath before court reporter was inadmissible for summary judgment purposes because it was neither signed nor taken in the presence of defendants lawyers to allow cross-examination; held, “We reject this argument. Sworn statements given before court reporters or at least as reliable as signed affidavits and are properly considered on summary judgment”)Glenn v. 3M Co., 440 S.C. 34, 95, 890 S.E.2d 569, 602 (Ct. App. 2023), reh'g denied (Aug. 10, 2023) (sanctioning counsel for taking “sworn statement” of witness whose deposition court had prohibited, where statement was under oath, was “in the question-and-answer format typical of a deposition,” and taken before a reporter and at the same day and time as the proposed deposition the court has prohibited; held, “. . . Fisher Controls wholly disregarded this [c]ourt's order prohibiting Dr. Timothy Oury's deposition. Although Fisher Controls labeled the deposition a “sworn statement,” the statement is clearly a deposition submitted under a label which would not immediately invoke the [c]ourt's ire. The statement was transcribed by an official [c]ourt [r]eporter on the day and at the time that Fisher Controls had originally scheduled Dr. Oury's deposition—a deposition prohibited by an Order of Protection from this [c]ourt.”)Defendant's Memorandum in Opposition to Protective Order, Zorn v. Principal Life Insurance Company, No. 6:09-CV-00081-BAE-GRS, 2010 WL 4253299 (S.D.Ga. July 22, 2010) (“Plaintiff also asserts that because he underwent an examination under oath (EUO) during the claims process, he should somehow be exempt from a deposition in his own, subsequent lawsuit. Plaintiff cites no authority for this position, and the case law is to the contrary. See Kamin v. Central States Fire Ins. Co., 22 F.R.D. 220 (E.D.N.Y. 1958) (denying motion for protective order to preclude depositions on the grounds that EUOs had been taken); Oreman Sales, Inc. v. State Farm Fire & Casualty Co., 1991 WL 87936 (E.D. La. May 23, 1991) (same); Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan. 1996) (“Taking a statement of a party, sworn or unsworn, pursuant to investigating a claim or potential lawsuit, does not equate with deposing him or her.”); Joe's Market Fish, Inc. v. Scottsdale Ins. Co., 1998 WL 851504 (N.D. Ill. Dec. 3, 1998) (“an examination under oath does not immunize an individual from a later deposition”); Jones v. State Farm Fire & Casualty Co., 129 F.R.D. 170 (N.D. Ind. Jan. 2, 1990)(“Undoubtedly State Farm now has information which was not available at the time of the examination under oath.”)St. Francis Hosp., Inc. v. Grp. Hosp. Serv., 598 P.2d 238, 240–41 (Okla. 1979) (saying a “[d]eposition has been defined by various jurisdictions as being confined to the written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing, upon oral examination or in response to written interrogatories where an opportunity for cross-examination is given”)Brooks v. Tate, No. 1:11-CV-01503 AWI, 2013 WL 4049053, at *1 (E.D. Cal. Aug. 7, 2013) (“By definition , “a ‘deposition' is the examination under oath by ‘oral questions' of a party or deponent.” Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D.Cal.2008). A party who wants to depose a person by oral questions must give written notice to every other party, stating the time and place of the deposition. Fed.R.Civ.P. 30(b)(1). “Where a deponent is not a party to the action, he can be compelled to appear at a deposition examination only by issuance of a subpoena” pursuant to Rule 45. Cleveland v. Palmby, 75 F.R.D. 654, 656 (W.D.Okl.1977). “Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28.” Fed.R.Civ.P. 30(b)(5)(A).”)Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008) (“Considering Rule 30 as a whole, and affording the words in that rule their plain meaning, as we must, see Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 928, 112 L.Ed.2d 1140 (1991) (“ ‘We give the Federal Rules of Civil Procedure their plain meaning.' ” (quoting Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989))); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir.2002) (“As a rule of construction, Federal Rules of Civil Procedure are given their plain meaning.”), it is clear that a deposition is the examination under oath by “oral questions” of a party or deponent. In other words, a party who merely appears for a deposition that does not take place has not “been deposed” since he has not been examined by oral questions”)Chicago Coliseum Club v. Dempsey, 8 Pa. D. & C. 420, 420–21 (Com. Pl. 1926) (“The definition of a deposition will be found in 1 Bouvier's Law Dictionary, 848, as follows: “The testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice”)

State Farm Obtains Injunction Against Doctor to Stop Fraudulent No Fault Accident Claims In State Farm Mutual Automobile Insurance Company, State Farm Fire and Casualty Company v. Herschel Kotkes, M.D., P.C., Herschel Kotkes, M.D., No. 22-cv-03611-NRM-RER, United States District Court, E.D. New York (July 13, 2023) Plaintiffs, various State Farm insurers sued Herschel Kotkes and Herschel Kotkes, M.D., P.C. (“Kotkes”), alleging that Dr. Kotkes defrauded State Farm by submitting hundreds of fraudulent bills for no-fault insurance charges on behalf of insured patients who were involved in automobile accidents. State Farm alleged common law fraud and unjust enrichment, seeking damages for benefits paid under no-fault insurance policies to Kotkes. State Farm also sought a declaratory judgment establishing that, among other things, it is not obligated to pay unpaid, pending claims submitted by Kotkes. BACKGROUND An insured may assign their claim to their provider, who then bills the insurers directly. Factual Allegations Defendants are Dr. Herschel Kotkes (“Kotkes”) and his medical practice, Herschel Kotkes, M.D., P.C. Kotkes is a pain management specialist, whose practice includes treating insureds who have been involved in automobile accidents. The insureds assign their policies to Kotkes, who bills State Farm for the treatment purportedly rendered. The random sample of eighty-six patients also reveals that Kotkes provided the same prognosis for 98% of those he treated and recommended the same combination of treatment methods for nearly all patients. COMMON LAW FRAUD Under New York law, to state a claim for fraud, a plaintiff must demonstrate 1 a material misrepresentation or omission of fact; 2 which the defendant knew to be false; 3 which the defendant made with the intent to defraud; 4 upon which the plaintiff reasonably relied; and 5 which caused injury to the plaintiff. State Farm points to Kotkes's own testimony, from an examination under oath in a state court collection action, where he testified, for one, that he does not believe that certain procedures are medically valuable, but that he performs them as a matter of course. Kotkes also testified that it is his practice to perform a percutaneous discectomy and an IDET-two mutually exclusive procedures-at the same time and using the same needle. Common law fraud is sufficiently pled and Kotkes's motion to dismiss the common law fraud count was denied. MOTION FOR A PRELIMINARY INJUNCTION State Farm alleges that, as of March 23, Kotkes initiated 103 arbitrations and 95 state court lawsuits seeking payment on claims that State Farm has refused to pay since uncovering the alleged fraudulent scheme and initiating the instant federal lawsuit. As of March 24, 2023, approximately $1,188,841.32 in unpaid claims was at issue in pending state court litigation and arbitrations, and $1,787,989.98 of Kotkes's billed-unpaid amount was not yet the subject of pending collections litigation or arbitration. New York courts routinely stay collection actions pending declaratory judgment proceedings. Accordingly, State Farm's request that the USDC stay pending no-fault collection actions in state court was granted. State Farm's motion for a preliminary injunction was granted in full. ZALMA OPINION Because insurance fraud - especially with regard to individual small amounts - the only means of deterring or defeating insurance fraud relating to no-fault insurance claims assigned to less than scrupulous health care providers is to sue the providers for fraud. State Farm should be commended for its proactive work against Dr. Kotkes and was properly provided an injunction stopping further claims while litigating the declaratory relief and fraud suit. The evidence appears overwhelming and I look forward to reading about the results at trial. (c) 2023 Barry Zalma & ClaimSchool, Inc. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

Suing for Unfair Competition and an Injunction to Avoid Private Limitation of Action Provision Dismissed Katherine Rosenberg-Wohl had a homeowners insurance policy with State Farm Fire and Casualty Company (State Farm), providing coverage on her home in San Francisco. The policy has a limitation provision that requires lawsuits to be "started within one year after the date of loss or damage." In Katherine Rosenberg-Wohl v. State Farm Fire And Casualty Company, A163848, California Court of Appeals, First District, Second Division (July 11, 2023) she sought indemnity to remedy a defect in the home. State Farm refused to pay because there was no insurable event and because the suit was filed more than a year after the alleged loss. FACTS In late 2018 or early 2019, plaintiff noticed that on two occasions an elderly neighbor stumbled and fell as she descended plaintiff's outside staircase and learned that the pitch of the stairs had changed and that to make the stairs safe the staircase needed to be replaced. In late April 2019, plaintiff authorized the work and contacted State Farm, and on August 9, she submitted a claim for the money she had spent. The denial was based on the investigation findings and concluded there was no evidence of a covered cause for accidental direct physical damage to the property. Plaintiff submitted a claim to State Farm for her construction expenses, which by then were approximately $52,600, with another $16,800 in anticipated expenses for additional work. By letter dated August 26-plaintiff alleged, without any investigation-State Farm denied the claim. The letter also specifically referenced "the suit limitation period" as a "policy defense." The second suit before the the Superior Court purports to allege a claim for violation of California's unfair competition law. This case was also resolved against plaintiff, also based on the limitation provision, when the trial court sustained a demurrer to the second amended complaint without leave to amend. Plaintiff appealed. On October 22, 2020-some 18 months after she had replaced the staircase, 14 months after State Farm had denied her claim the first time, and nearly six months after the one-year limitation period of the policy had expired-plaintiff filed two lawsuits in San Francisco County Superior Court. State Farm filed a demurrer and a motion to strike the SAC. On July 29, Judge Massullo entered her order sustaining the demurrer without leave to amend, a comprehensive order indeed, eight pages of thoughtful analysis. DISCUSSION The one-year limitation provision in the State Farm policy is there because it was required by statute. [Califonria Insurance Code section 2071] The one-year limitation provisions have long been held valid as mandated by statute. The One-Year Policy Limitation Provision Applies An insured cannot plead around the one-year limitations provision by labeling her cause of action something different than breach of contract which, of course, includes claims for bad faith. Conduct by the insurer after the limitation period has run cannot, as a matter of law, amount to a waiver or estoppel. ZALMA OPINION The Court of Appeal spent many pages resolving this fairly simple dispute. The plaintiff sued to collect benefits she believed were owed under a policy of insurance only to find that the suit was filed to late. To avoid that problem she amended the suit to allege unfair business practices and sought an injunction, all of which were seen to be an alternative way to obtain policy benefits and failed again. For more than 120 years the California Supreme Court and Courts of Appeal have upheld the private limitation of action provision required by statute and no amount of creative pleading can avoid its effect. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

No Coverage Under a False Name Cheryl Tisdale was injured in an automobile collision while she was driving her own vehicle containing passengers while logged into the Uber Technologies ("Uber") application as a paid driver. Tisdale served Farmers Insurance Exchange with the complaint, seeking underinsured motorist ("UM") coverage pursuant to an insurance policy Farmers issued to Raiser, LLC, a subsidiary of Uber. In Tisdale v. Farmers Insurance Exchange, No. A23A0616, Court of Appeals of Georgia (June 27, 2023) Farmers moved for summary judgment, arguing that Tisdale did not qualify as an insured under the Uber policy, or, in the alternative, that she was barred from seeking coverage because she intentionally concealed or misrepresented material facts and committed fraud by using a false identity in her Uber driver application and while using the app. The trial court granted summary judgment to Farmers. Tisdale appealed. FACTS Tisdale was an Uber driver from 2015 to 2017. According to her deposition, at some point Uber "stopped [her] from driving because they did a background check [,] and something popped up on there . . . they didn't agree with." In 2019, because she did not believe that Uber would hire her under real name, Tisdale applied to work for Uber using the name "Annie Mollie." Uber approved "Mollie's" application, and Tisdale began driving for Uber as Annie Mollie. In April 2020, Tisdale was involved in an automobile accident with Graves while driving her own car, which was registered under her legal name, and while logged into the driver version of the Uber app as Annie Mollie. Tisdale gave a recorded statement to Farmers as "Annie Mollie." In May 2020, Tisdale sued Graves for damages arising out of the accident, alleging that he rear-ended her, pushing her vehicle into the path of another vehicle, which struck her, and that she incurred in excess of $184,000 in medical expenses. At the time of the accident, Tisdale had not entered into a contract to use the Uber app in her own name/capacity, and Uber had not authorized her to drive as an Uber driver; instead, Tisdale operated her vehicle while logged into the Uber app using a false identity. Under these circumstances, Tisdale did not qualify as an insured under the policy Farmer's issued to Uber. ANALYSIS The hallmark of contract construction is to ascertain the intention of the parties, as set out in the language of the contract. As a result, when the language of an insurance policy defining the extent of an insurer's liability is unambiguous and capable of but one reasonable construction, the courts must enforce the contract as written and agreed to by the parties. Tisdale served her own UM carrier - State Farm Fire and Casualty Company - and Farmers with a copy of the complaint and discovery requests. Farmers, in response, alleged that coverage for Tisdale under Uber's UM policy was void. Tisdale concedes that she intentionally misrepresented her identity and presented Uber with a false driver's license and a false insurance registration card in order to become a driver. This misrepresentation and fraud provided her coverage under the Farmer's policy, which clearly bars the payment of damages to a driver who commits fraud or intentionally misrepresents or conceals a material fact relating to coverage. Therefore, the trial court properly granted summary judgment to Farmers. ZALMA OPINION It takes a great deal of chutzpah (unmitigated gall) to be fired by Uber for cause, rejoining Uber under a false name, and then claim a right to benefits from the Uber policy. Tisdale was punished by her lies and was not allowed to profit from her fraud. (c) 2023 Barry Zalma & ClaimSchool, Inc. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

Suing All State Farm Insurers Unconscionable State Farm Mutual Automobile Insurance Company (“State Farm Auto”) and Defendant State Farm General Insurance Company (“State Farm General”) moved the court to dismiss all Plaintiff's claims against the entities. The motion was regarded as unopposed. In Bridget Butler v. State Farm Fire And Casualty Company, State Farm General Insurance Company, And State Farm Mutual Automobile Insurance Company, No. 3:22-Cv-03433, United States District Court, W.D. Louisiana, Lake Charles Division (June 23, 2023) a Bridget Butler whose home was damaged by two hurricanes sued three State Farm Insurance companies when only one insured her against the risk of loss of her property. INTRODUCTION Hurricane Laura made landfall near Lake Charles, Louisiana then Hurricane Delta made landfall near Lake Charles, Louisiana. During the relevant time period, Plaintiff Bridget Butler owned property in Monroe, Louisiana. An entity of State Farm provided a policy of insurance to Plaintiff. Plaintiff alleged that Defendant failed to timely and adequately compensate Plaintiff for her substantial losses pursuant to the Policy. In turn, Plaintiff filed suit against State Farm Auto, State Farm General, and State Farm Fire and Casualty Company (“State Farm Fire and Casualty”) claiming liability for damages for breach of contract plus general damages and for statutory violations and penalties under Louisiana Revised Statutes. State Farm General and State Farm Auto moved for dismissal of the claims against them. Plaintiff filed no response to the motion. RULE 12(b)(6) STANDARD Rule 12(b)(6) allows for dismissal when a plaintiff “fail[s] to state a claim upon which relief can be granted.” LAW AND ANALYSIS The Complaint alleges that the “Defendant” issued and maintained a Policy insuring Plaintiff's Property. The Complaint does not provide a specific policy number, and the Complaint asserts a policy number was unable to be identified because “Defendant” did not comply with Plaintiff's request for production of the policy number. Attached to their Motion to Dismiss State Farm General and State Farm Auto put forth an insurance policy with the policy number 99-CC-X642-7, and both companies assert that the attached policy is the Policy referenced in the Complaint. The attached policy is from State Farm Fire and Casualty and names Plaintiff as insured and the Property as the location of premises insured with a policy period of twelve months beginning August 25, 2020. State Farm General and State Farm Auto are not listed as parties in the attached policy. Additionally, both State Farm General and State Farm Auto maintain that neither entity has issued a policy to Plaintiff. Under Louisiana law, no action for breach of contract may lie in the absence of privity of contract between the parties. State Farm General and State Farm Auto are not parties to the attached policy, and each assert it did not provide Plaintiff with any insurance coverage. CONCLUSION Defendants State Farm General Insurance Company and State Farm Automobile Insurance Company's Motion to Dismiss was granted. Plaintiff maintains claims against State Farm Fire and Casualty Insurance Company. ZALMA OPINION There should be no excuse for a plaintiff to require the State Farm entities that did not insure Ms. Butler to move the court for dismissal. A telephone call from defense counsel to plaintiff's counsel informing Ms. Butler of the proper defendant and voluntarily dismiss the wrong State Farm entities. The decision of the court was easy but Judge Cain has more important things to do than deal with an unnecessary motion. Sanctions against Plaintiff's attorney could have been warranted. (c) 2023 Barry Zalma & ClaimSchool, Inc. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

Conviction for Second-Degree Reckless Homicide Could be an Accident When there is a severe injury, like the criminal death of a child, litigation results in an attempt to collect from an insurer since the convict will have little or no assets to pay for the loss. In Lindsey Dostal, Individually and as Special Administrator of the Estate of Haeven Dostal v. Curtis Strand and ABC Insurance Company, State Farm Fire and Casualty Company, Intervening, No. 2020AP1943, 2023 WI 6, Supreme Court of Wisconsin (January 26, 2023) the Wisconsin Supreme Court was asked to allow the mother of the child to seek the criminal whose conduct - the father of the child - accidentally caused the death so that State Farm, the convicted father's insurer, must pay the mother for the loss of her child. FACTS Lindsey Dostal (Dostal) sought review of a court of appeals decision affirming the circuit court's grant of summary and declaratory judgment in favor of State Farm. Dostal sued Strand for negligence and wrongful death. Strand tendered the matter to State Farm, his homeowner's insurer, seeking defense and indemnification. The insurance policy in this case sets forth that coverage is provided for an "occurrence." An "occurrence," in turn, is defined under the policy as an "accident," which results in, as relevant here, "bodily injury." RESIDENT RELATIVE EXCLUSION The parties' submissions demonstrate that there are genuine issues of material fact as to the question of whether Haeven was a resident relative of Strand. Accordingly, summary judgment was inappropriate on this issue. INTENTIONAL ACT EXCLUSION If the conduct is intentional and if the conduct is substantially certain to cause injury, the Supreme Court could infer intent to injure only if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law. However, the Supreme Court cannot infer intent to injure as a matter of law merely because the insured's intentional act violated the criminal law. Conviction of a crime gives rise to an inference that an insured intended injury as a matter of law in two circumstances, but only: (1) if intent to injure is an element of the crime, and (2) if the crime in question involves the insured committing an intentional act that carries with it a substantial risk of injury or death. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

Payment of Renewal Premium is Acceptance of Policy as Written Ronald Morgan and Cheryl Morgan appealed from the trial court's grant of summary judgment in favor of Dickelman Insurance Agency, Inc., Dickelman Insurance, Inc., Jason Dickelman, and State Farm Fire and Casualty Co. (collectively Defendants) on the Morgans' complaint for breach of contract, promissory estoppel, negligence and fraud. In Ronald Morgan and Cheryl Morgan v. Dickelman Insurance Agency, Inc., Dickelman Insurance, Inc., Jason Dickelman, and State Farm Fire and Casualty Co., No. 22A-PL-892, Court of Appeals of Indiana (December 30, 2022) the Court of Appeal of Indiana made clear that an insured is required to protect their rights by reading the renewal notice of a policy. FACTS The facts most favorable to the Morgans as the nonmovants show that in 2007, they purchased a log home in Lafayette, Indiana. In 2008, they acquired homeowners insurance with State Farm. The Morgans paid insurance premiums through escrow funds held by their mortgage company. Each year, State Farm mailed the Morgans "renewal notices." The insureds did not recall looking at the notices. In 2015 the Morgans submitted a claim to State Farm for extensive water damage to their home with a repair estimate of $712,000 to $800,000. Ultimately, State Farm paid the Morgans $330,034.88 for the claim, which represented their dwelling coverage limit for the policy period April 4, 2015, to April 4, 2016, plus inflation guard protection and the cost of debris removal. On September 20, 2017, the Morgans sued Defendants alleging breach of contract, promissory estoppel, negligence, and fraud. The trial court issued an order granting summary judgment for Defendants on all of the Morgans' claims. DISCUSSION AND DECISION In their complaint, the Morgans alleged that Defendants breached an oral agreement to increase their dwelling coverage by $150,000. In an affidavit, Dickelman attested that the Morgans never authorized Dickelman Insurance to increase the dwelling limits. Thus, Defendants' designated evidence established that they did not commit breach of contract. In this case, State Farm mailed renewal certificates to the Morgans that clearly and unambiguously informed them of the amount of their policy dwelling coverage. In Indiana, "[I]nsureds have a duty to read and to know the contents of their insurance policies." [Safe Auto Ins. Co. v. Enter. Leasing Co. of Indianapolis, 889 N.E.2d 392, 397 (Ind.Ct.App. 2008).] A casual scan by an unsophisticated customer of the first page of the two-page 2013 renewal certificate would inform that person that the dwelling coverage was limited to $297,100 and that the premium charged was for this amount of coverage. By retaining the policy and paying the premium through an escrow account held by their mortgage company, the Morgans accepted the offer to renew. DUTY TO READ --- Support this podcast: https://anchor.fm/barry-zalma/support

Carla Wigton v. State Farm Fire & Casualty Co.

Minnesota Statute Does not Require Insurer to Pay to Bring Church Property up to Code From Damage Predating Loss St. Matthews Church of God and Christ (St. Matthews) is located in St. Paul, Minnesota sued State Farm Fire and Casualty Company (State Farm) who insured St. Matthews. The policy provided replacement cost coverage for damage to St. Matthews's buildings. In St. Matthews Church of God and Christ v. State Farm Fire and Casualty Company, No. A21-0240, Supreme Court of Minnesota (November 23, 2022) St. Matthews sought payment for damaged masonry wall when covered peril only damaged drywall covering the masonry that was cracked as a result of old age. FACTS In June 2017, a storm damaged the property of St. Matthews, including the building's drywall. At issue is the interpretation and application of Minn. Stat. § 65A.10, subd. 1 (2020) (“the statute”). The statute requires replacement cost insurance to cover the cost of repairing any "damaged property in accordance with the minimum code as required by state or local authorities." In "the case of a partial loss," replacement cost insurance is required to cover only "the damaged portion of the property." St. Matthews's policy provided replacement cost coverage, meaning that, in the event of a loss, the insurer agreed to compensate for that loss without taking into account depreciation. By December 2018, State Farm paid St. Matthews $107,053, an amount that included the cost of replacing and repairing the drywall. St. Matthews was required to obtain a building permit from the City to make the necessary repairs, including replacing the drywall. The City was concerned about the defects in the existing masonry wall which rendered the wall out of code. St. Matthews subsequently requested State Farm to pay the cost of bringing the masonry up to code. In response, State Farm hired a consultant to evaluate the damaged masonry and determine the cause of damage. The consultant concluded that the "cracked and out-of-plumb condition . . . was a longterm condition unrelated to the storm ...." On cross-motions for summary judgment, the district court granted summary judgment to State Farm. ANALYSIS The parties agree that the damaged property at issue is a partial loss and that, before the drywall can be repaired, St. Paul's city code requires that the masonry be repaired sufficiently to bring it in accordance with minimum code. All parties agreed that the damage to the masonry was not caused or impacted by the storm. Accordingly, the damage to the masonry was not independently covered by State Farm's policy. Viewing the project from the perspective of a drywall installer there was nothing in the condition of the masonry that prevented the installation of new drywall. The Supreme Court concluded that under a plain reading of the statute in the case of a partial loss, replacement cost coverage applies only to the damaged portion of the property covered by a cause of loss. Only the drywall was damaged because of the storm, but the masonry was not. Therefore, only the damaged drywall is subject to the statute's code-compliance provision. --- Support this podcast: https://anchor.fm/barry-zalma/support

No Coverage for Theft by Persons Entrusted When the plaintiff turned her restaurant over to two restaurateurs when she became ill they took out of the restaurant and converted it to their possession. The restaurateurs claimed they purchased the equipment from plaintiff and she claimed they took advantage of her illness and stole the property. In Tomazina Johnson, d/b/a Zing Zing's Wings & More, LLC v. State Farm Fire & Casualty Company, No. 2:20-cv-02912-cgc, United States District Court, W.D. Tennessee, Western Division (November 23, 2022) the USDC resolved the dispute by reading the full policy and applying its language to the facts established by State Farm's motion. INTRODUCTION Plaintiff's Circuit Court Complaint alleged two claims: breach of contract and bad-faith refusal to pay an insurance claim pursuant to Tennessee Code Section 56-7- Plaintiff argued that the Policy provides coverage for accidental physical loss of business personal property and that she has met her initial burden of establishing that an accidental, direct loss during the Policy period. THE INSURANCE POLICY State Farm issued a businessowner's insurance policy that was in full force and effect insuring Plaintiff's restaurant business, Zing Zing's Wings & More, LLC (“Zing Zing's”). The Policy provides that State Farm insures for the “accidental direct physical loss to Covered Property.” However, “Section I - EXCLUSIONS” and the “Property Subject to Limitations” provisions limited the coverages available to the Plaintiff. The policy contained the following exclusion: Evidence of Events Relevant to Plaintiff's Claims Plaintiff opened her restaurant Zing Zing's. Its grand opening took place in February of 2019. However, while Plaintiff was operating the restaurant, it was operating at a loss. On the advice of counsel Plaintiff dealt with two individuals-Curtis Braden (“Braden”) and Rayford Burns (“Burns”)- who were to take over Zing Zing's while she was ill. --- Support this podcast: https://anchor.fm/barry-zalma/support

Oral argument argued before the Eighth Circuit U.S. Court of Appeals on or about 11/16/2022

R.A.D. Services LLC v. State Farm Fire & Casualty Co.

A Video Explaining the Private Limitation of Action Provision of a First Party Property Policy HTTPS://ZALMA.COM/BLOG The phrase, “inception of the loss” in the standard fire insurance policy has been interpreted to mean the occurrence of the casualty or event insured against must, if a claim is denied, a suit must be filed within one or two years of the date of the inception of the loss. The law is clear that in most situations the limitation period will be enforced. The Sixth Circuit held that a one-year limitations period after the inception of loss or damage in an insurance contract did not conflict with Kentucky law and was reasonable. [Smith v. Allstate Ins. Co., 403 F.3d 401, 402-04 (6th Cir. 2005); Miller v. Seneca Specialty Ins. Co. (W.D. Ky., 2019)] The inception of loss means “the time when the loss was first incurred or began to accrue.” [Tucker v. State Farm Mut. Auto Ins., 2002 UT 54, ¶¶ 13-14, 53 P.3d 947]. In Oregon, the Supreme Court held that “[t]he loss occurs and has its ‘inception' whether or not the insured knows of it.” See also Zuckerman v. Transamerica Ins. Co., supra, 133 Ariz. at 145 (“the phrase ‘inception of the loss' is not ambiguous and clearly denotes the time at which the loss occurs”). Moore v. Mutual of Enumclaw Insurance Co., 317 Or. 235, 855 P. 2d 626 (Or. 07/29/1993). An insured's suit on the policy will be deemed timely if it is filed within one year after “inception of the loss,” defined as that point in time when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered. “Once any damage becomes reasonably apparent the time begins to run, even if the full extent of the damage is unknown. The inception of the loss occurs when the insured should have known that “Appreciable Damage” had occurred, not when the homeowner learned the true extent of the damage.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange 132 Cal.App.4th 1076, 34 Cal. Rptr. 3d 157 (2005) and Prudential-LMI Com. Ins. v. Superior Court, 51 Cal. 3d 647, 798) An insured's belated discovery of potential coverage is irrelevant to the inception of loss date. [Abari v. State Farm Fire & Casualty Co. 205 Cal.App.3d 530, 535 Cal. Rptr. 565 (Ct. App. 1988)] The limitations period is tolled in California from the time the insured gives notice of the damage to the insurer until the insurer formally denies coverage. “This has been construed to mean ‘unequivocal' denial in writing.” [Migliore v. Mid–Century Ins. Co. 97 Cal.App.4th 592, 118 Cal. Rptr. 2d 548 (2002)] “The reason for the tolling rule is to avoid penalizing the insured for the time consumed by the insurer investigating the claim, while preserving the ‘central idea of the limitation provision that an insured will have only 12 months to institute suit.'” [Marselis v. Allstate Ins. Co. 121 Cal.App.4th 122, 16 Cal. Rptr. 3d 668 (2004)] There is no requirement, however, that the insurer take “firm, unmovable positions” [Liberty Transport, Inc. v. Harry W. Gorst Co. 229 Cal.App.3d 417, 280 Cal. Rptr. 159 (Ct. App. 1991)] or use particular “magic” words, even the word “deny” to achieve the requisite unconditional denial. © 2021 – Barry Zalma Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. --- Support this podcast: https://anchor.fm/barry-zalma/support

Misrepresentation or Concealment of a Material Fact https://zalma.com/blog To constitute fraud, an insured must have concealed or misrepresented a material fact with the intention of inducing an insurer to pay a claim it would not, otherwise owe had it known the true facts. The facts that are deemed to be “material” for purposes of denying a claim or voiding a policy are not clearly defined and therefore each case must be evaluated separately. Generally, a fact is material to the application for insurance if it might have influenced a reasonable insurer in deciding whether to accept or reject the risk on the same terms and conditions. Material facts intentionally concealed or misrepresented with intent to mislead the insurer that result in damage to the insurer are fraudulent. Fraud, at the option of the insurer, allows the insurer to void the policy. A misrepresentation after a loss as to a single material fact will forfeit the entire insurance contract. An insured cannot commit a “small” fraud any more than he can be just a little dead. Once caught in a small fraud, the insured cannot demand that he or she be paid the legitimate part of the claim and expect the insurer to forgive the attempted fraud. Determining the existence of a “misrepresentation” is not always straightforward. In Suggs v. State Farm Fire and Casualty. Co., 833 F.2d 883 (10th Cir.1987), an initial investigation by an insurer and the state fire marshal concluded that a residential fire was the result of arson. The fire marshal further concluded that it was the insured who set the fire. The insured was arrested and charged with arson. With criminal charges pending, the insured hired experts who concluded that the fire was probably caused by an electrical malfunction. Criminal proceedings were then dismissed. Another expert retained by the insurer later concluded that the fire was not of electrical origin, and the insurer denied the insured's fire damage claim on the ground that the insured had intentionally set the fire. The insured responded by suing for benefits under the policy, as well as for bad faith. A jury found in favor of the insured on both causes of action. --- Support this podcast: https://anchor.fm/barry-zalma/support

Lie to an Insurer and Lose Everything https://zalma.com/blog False swearing is a special category of misrepresentation or concealment because it is made under oath. In criminal law, false swearing is called perjury. If there was any false swearing as to the property that was the subject of the insurance, it vitiated that policy; if there was false swearing as to the meat and corn, it vitiated the policy taken out upon those articles. The instruction, in effect, told the jury, that if they believed there was false swearing with respect to the meat and corn, the result would be to vitiate policy and that the plaintiff would not be entitled to recover the policy benefits. [Williams v. Va. State Ins. Co, 55 S.E. 680, 106 Va. 259 (1906)] In order for a "false swearing" to void an insurance policy, the false swearing must have been willful, made with respect to a material matter, and made with the intent to deceive the insurer. [Gould v. M.F.A. Mutual Insurance Company, 331 S.W.2d 663, 669 (Mo.App.1960); Joiner v. Auto-Owners Mut. Ins. Co., 891 S.W.2d 479 (Mo. App. 1994)] Where an insurance policy provides that an insured's concealment, misrepresentation, fraud, or false swearing voids the policy, the insured must have actually intended to defraud the insurer. [West v. Farm Bureau Mutual Insurance Co. of Michigan, 402 Mich. 67, 259 N.W.2d 556 (1977)] Under Michigan law, fraud must be proved by clear and convincing evidence, [Disner v. Westinghouse Electric Corp., 726 F.2d 1106, 1109-11 (6th Cir. 1984)], even when raised as an affirmative defense. Therefore, under Michigan law, the insured's intent in making a misrepresentation in a proof of loss is a material fact because it is a falsely sworn statement. [Madkins v. State Farm Fire & Cas. (E.D. Mich., 2019)] Mississippi has a different understanding when there is more than one part to an insurance policy. A policy insuring various items and fixing the amount of insurance to be paid on each, is separable, although the premium is fixed as an entirety; and that because the policy is void as to one item, that fact does not render it unenforceable as to the others. [Darden v. Liverpool & London & Globe Ins. Co., 109 Miss. 501, 68 So. 485; Scottish Union & National Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 80 So. 9, 12, and National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730.] On the other hand, in Michigan, even when viewed in a light most favorable to plaintiff, the evidence presented the trial court established that plaintiff's claims for no-fault benefits were based upon fraud and false swearing. Reasonable minds could not differ that plaintiff engaged in fraud for the purpose of recovering no-fault benefits. Because she did so, Farm Bureau had the contractual right to void the policy and deny her no-fault benefits. [Parker v. Farm Bureau Gen. Ins. Co. (Mich. App., 2019)] --- Support this podcast: https://anchor.fm/barry-zalma/support

A Video Explaining Insurance for Construction Defects Regarding Structural Failures https://zalma.com/blog Structural integrity failures can involve any of the following: concrete; masonry; carpentry; or foundations. Defects related to site preparation can be caused by any of the following: building on expansive soil or other defective soils incapable of properly supporting structures; building on contaminated soils; lack of a slab-on-grade foundation when the soils are acidic and can cause the deterioration of concrete; or building on improperly compacted soils, which can cause interior distress to cabinets and countertops, make doors difficult to open and cause structures to settle and cracking in stucco, drywall, plaster interior walls, windows, tile floors, concrete flatwork, slabs, and garage flooring. In Texas, when a completed home developed problems with a shifting foundation, a suit was filed alleging violations of the Texas Deceptive Trade Practices Act (DTPA) and negligence. On the first day of trial, the plaintiff settled with one defendant and proceeded against another. The District Court granted a directed verdict on the claim that there was a violation of the DTPA with a breach of an implied warranty of good-and-workmanlike performance. Only the plaintiff's negligence claim was submitted to the jury, which found no negligence on defendant's part. The district court rendered a take-nothing judgment. [Codner v. Arellano, 40 S.W.3d 666 (Tex.App. Dist.3 2001). See also Parmely v. Hildebrand, S.D. 83, 630 N.W.2d 509 (2001), where the seller was found to have made adequate disclosures about expansive soils at time of sale and was not liable for soil expansion damages.] The Ninth Circuit, dealing with the right to insurance for damages caused by expansive soil, found that under California law, a latent defect exclusion applies to third party negligence that is discoverable only through subsequent intensive expert investigation. Because there is no evidence that the contractor's negligence in this case was discoverable, short of an in-depth expert inspection after-the-fact, the Ninth Circuit concluded that State Farm was entitled to summary judgment on its exclusion for latent defects. [Winans v. State Farm Fire and Casualty Co., 968 F.2d 884 (9th Cir. 1992).] © 2021 – Barry Zalma --- Support this podcast: https://anchor.fm/barry-zalma/support

Oral argument argued before the Eighth Circuit U.S. Court of Appeals on or about 09/22/2021

A Video Explaining Wear and Tear and Inherent Vice https://zalma.com/blog Wear and Tear It is inevitable that objects deteriorate over time and wear out. Even the pyramids in Egypt show wear and tear after more than 4000 years being abused by sand and wind storms. Recent decisions of the courts of appeal have gone through such changes that even an inherent vice of the insured property—a condition certain to result in loss—rarely falls within the parameters of a non-fortuitous loss. The Restatement of Contracts 291, Comment a, holds that a loss is not fortuitous “if it results from an inherent defect in the object damaged, from ordinary wear and tear, or from the intentional misconduct of the insured.” In a case dealing with a boat that was left completely uncovered in the Bahamas during the rainy season, ‘normal wear and tear' resulted in the sinking of the boat. Rainwater entered the boat, forcing the bilge pump to operate continuously for several days. This drained the boat's battery, causing the pump to stop functioning. Batteries do not last forever. While the battery may have had enough power to start the engine, it obviously did not have enough power to operate the bilge pump for two days. The deterioration of a battery constitutes normal wear and tear, is not fortuitous, and is not compensable under a policy of insurance. We think it inappropriate to cause the insured to suffer a forfeiture by concluding, with the aid of hindsight, that no fortuitous loss occurred, when at the time the insurance took effect only a risk was involved as far as the parties were aware. See Millers Mutual Fire Insurance Co. v. Murrell, 362 S.W. 2d 868, 870 (Tex. Civ. App. 1962). De Guinee v. Insurance Co., 724 F. 2d 369 (3rd Cir. 12/22/1983). In Compagnie des Bauxites de Guinee v. Insurance Company of North America, 724 F. 2d. 369 (3d Cir. 1983), an insured brought suit against its all-risk insurer to recover business interruption losses arising from the structural failure, collapse, and deformation of a tippler building and crusherhouse used in the mining of bauxite ore. The trial court found no coverage because the damage resulted from the defective design of the building and was not fortuitous. Latent Defect Cases that provide coverage despite an exclusion for latent defects fall generally within two categories. The court determines either that: "the defect could have been discovered through appropriate testing and it is therefore, not latent; or the loss resulted from a contributory covered risk." In Tzung v. State Farm Fire and Cas. Co., 873 F.2d 1338 (9th Cir.1989), the court first held that damage due in part to inadequate protection against soil expansion was excluded under a policy exclusion for “faulty materials or workmanship.” Because the design and construction defects at issue in Tzung—described as “imbedded in the ground”—were discoverable only through expert examination of the apartment building “and the soils beneath it,” they were not “readily discoverable.” --- Support this podcast: https://anchor.fm/barry-zalma/support

Explaining The Need to Prove an Occurrence https://zalma.com/blog An “occurrence” is usually defined as accidental loss or damage which results, during the policy period, in bodily injury or property damage. In Green v. State Farm Fire & Casualty Co. 127 P.3d 1279, 2005 UT App 564 (Utah App. 12/30/2005) a homeowner sued the insured developer after he sustained property damages as a result of a landslide. At the time of the landslide, the developer held a contractor/builder's risk insurance policy issued by State Farm. The developer initiated a declaratory judgment action against State Farm, seeking defense and indemnification under the policy. It should be axiomatic in all third party liability cases that before there can be a duty to defend there must be an occurrence or accident so that the events sued upon are fortuitous. In some states, the pleading controls the decision on coverage, as in Utah, while in others, like California, the insurer is obligated to look beyond the complaint to extrinsic facts. In Automobile Insurance Co. of Hartford v. Cook, 21 A.D.3d 1155, 801 N.Y.S.2d 837 (2005) the court was faced with the legal question of whether an individual's homeowner's insurance policy affords coverage when that individual is sued for wrongful death after killing a person in self-defense. On February 20, 2002, defendant Alfred S. Cook shot and killed Richard A. Barber, the decedent, after a disagreement over a business arrangement spun out of control. The decedent had entered Cook's home without permission. During their discussions, Cook, armed with a handgun, retreated to his bedroom to retrieve a 12-gauge shotgun and then returned to the living room, where the fatal confrontation occurred. Please send me an e-mail at zalma@zalma.com if you liked or disliked the videos I have produced on youtube.com and rumble.com. © 2021 – Barry Zalma Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals. Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/ podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4 --- Support this podcast: https://anchor.fm/barry-zalma/support

Differences between Property and Liability PoliciesAs the California https://zalma.com/blog Supreme Court observed in both Garvey v. State Farm Fire and Casualty Co., 48 Cal. 3d 395, 770 P.2d 704, 257 Cal. Rptr. 292 (Cal. 1989), 48 Cal.3d at p. 399, fn. 2, 257 Cal. Rptr. 292, 770 P. 2d 704, and Prudential-LMI, 51 Cal. 3d at pp. 698-699, 274 Cal. Rptr. 387, 798 P. 2d 1230, a first party insurance policy provides coverage for loss or damage sustained directly by the insured (e.g., life, disability, health, fire, theft, and casualty insurance). A third party liability policy, in contrast, provides coverage for liability of the insured to a third party (e.g., a commercial general liability or CGL policy, a directors' and officers' liability policy, a business owners' policy, or an errors and omissions policy).In the usual first party policy the insurer promises to pay money to the insured upon the happening of an event, the risk of which was insured. In the typical third party liability policy, the carrier assumes a contractual duty to thoroughly investigate and defend claims or suits and pay judgments the insured becomes legally obligated to pay as damages because of bodily injury or property damage accidentally caused by the insured. The difference in the nature of the risks insured against under first party property policies and third party liability policies is also reflected in the differing causation analyses that must be undertaken to determine coverage under each type of policy. “Property insurance … is an agreement, a contract, in which the insurer agrees to indemnify the insured in the event that the insured property suffers a covered loss.” Coverage, in turn, is commonly provided by reference to causation, such as “loss caused by” certain enumerated perils. --- Support this podcast: https://anchor.fm/barry-zalma/support

I was recently hired by a homeowner in the Los Angeles, California area to help him with the construction repair estimating process for a fire damage claim with State Farm Insurance. He is acting as his own general contractor, which adds a unique dimension to our consulting relationship. In this capacity, I am nothing more than a consultant... there to help him plan strategy and give him my best advice. So far, so good. State Farm started out at around $144,000 and are now over $300,000 and climbing. IESCertified.com

Feb. 2, 2018 Hayes Family Trust v. State Farm Fire

On December 6, 2016, the Supreme Court decided State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages. -- Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded (as the district court had)--after applying a multi-factor test--that the breach did not warrant dismissal here. -- The question before the Supreme Court was what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion by Justice Kennedy, the Court unanimously held that a seal violation does not mandate dismissal of a relator's complaint under the False Claims Act and that whether to dismiss is a matter left to the discretion of the district court. In this case, the Supreme Court added, the district court did not abuse its discretion in declining to dismiss the relator’s complaint. -- To discuss the case, we have Lawrence Ebner, who is the Founder of Capital Appellate Advocacy.

In a unanimous decision, the Supreme Court upheld the U.S. Court of Appeals ruling in favor of the respondent. The respondent, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm, regarding allegedly fraudulent actions taken post-Katrina, before the defendant was served. State Farm argued that the case should have been immediately dismissed due to the procedural violation. The question at hand was whether a claim made under the FCA should be dismissed because the complaining party violated the seal requirement. -- Mr. Lawrence Ebner, founder of Capital Appellate Advocacy, author of multiple pieces on the case, and Counsel of Record on the DRI Amicus Brief in support of the petitioner, joined us to discuss the decision and its implications for the future. -- Featuring: Mr. Lawrence Ebner, Founder, Capital Appellate Advocacy.

On November 1, 2016, the Supreme Court heard oral argument in State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages. -- Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded after applying a multi-factor test that the breach did not warrant dismissal here. -- The question now before the Supreme Court is what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. -- To discuss the case, we have Cory Andrews, who is senior litigation counsel at the Washington Legal Foundation.

On Tuesday, November 1, the Supreme Court heard oral argument on the case State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. The defendant, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm before the defendant was served. Although Rigsby won her original case against State Farm under the FCA, the U.S. Court of Appeals immediately dismissed the case due to the procedural violation. The question the Supreme Court must answer is what standards should be used to determine whether a claim made under the False Claims Act should be dismissed because the complaining party violated the seal requirement? -- Featuring: Cory Andrews, Senior Litigation Counsel, Washington Legal Foundation.

State Farm Fire & Casualty Co. v. United States, ex rel. Rigsby | 11/01/16 | Docket #: 15-513