Occam’s Razor Exclusion for Work Performed by Insured Defeats Claim for Construction Defects Post 4935 Read the full article at https://lnkd.in/gT_NsMHv, see the full video at https://lnkd.in/gqkPHYbp and at https://lnkd.in/gEEXkUe3, and at https://zalma.com/blog plus more than 4900 posts. The question presented to the U.S. First Circuit Court of Appeals was whether a contractor’s CGL insurance policy covers general damage to a non-defective part of the contractor’s project resulting from a subcontractor’s defective work on a different part of that project. APPLICATION OF OCCAM’S RAZOR The analysis technique that proposes that the simplest of competing theories be preferred to the more complex. FACTUAL BACKGROUND Applying Massachusetts law, the district court concluded that Admiral had no duty to defend Tocci in Admiral Insurance Company, Starr Indemnity & Liability Company, Great American Assurance Company v. Tocci Building Corporation, Tocci Residential LLC, John L. Tocci, Sr., No. 22-1462, United States Court of Appeals, First Circuit (November 8, 2024) and Tocci appealed. From 2013 to 2016, Tocci was the construction manager for an apartment project owned by Toll JM EB Residential Urban Renewal LLC (“Toll”). There were several work quality issues and delays on the project, and Toll eventually terminated Tocci in March 2016 for alleged mismanagement of the project. Toll sued with allegations regarding instances of defective work leading to property damage. The allegations included defective work by Tocci’s subcontractors resulting in various instances of property damage to non-defective work on the project, including (1) damage to sheetrock resulting from faulty roof work; (2) mold formation resulting from inadequate sheathing and water getting into the building; and (3) damage to a concrete slab, wood framing, and underground pipes resulting from soil settlement due to improper backfill and soil compaction. DUTY TO DEFEND Tocci sought defense and indemnity coverage under the Admiral insurance policies. Admiral denied coverage. The district court granted Admiral’s motion on duty to defend because the damage alleged in Toll’s complaint did not qualify as “property damage” as defined in the policy because the allegations consisted entirely of damage at Tocci’s own project. ANALYSIS The First Circuit considered three steps to the coverage analysis: (1) Do the damages alleged in the action fall within the scope of coverage?; (2) if so, do the exclusions to coverage apply?; and (3) if so, do any exceptions to the exclusions apply? The First Circuit noted that there is a sharp split of authority on whether damage to non-defective work resulting from a subcontractor’s defective work constitutes “property damage” or is caused by an “occurrence.” The First Circuit decided to avoid the issues of what constitutes “property damage” by focusing on the exclusions which were sufficient to resolve the complete dispute. THE HOLDING There are two “Damage to Property” exclusions that provide that there is no coverage for “property damage” to: that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations; or that particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it. The First Circuit, applying Occam’s Razor, focused its analysis on the exclusion it concluded covers the allegations in the Toll complaint. Since the complaint alleges damage resulting from Tocci’s “incorrectly performed” work on the entire project “[t]hat particular part of any property that must be restored, repaired or replaced because ‘[Tocci’s] work’ was incorrectly performed on it” refers to the entirety of the project where Tocci was the general contractor charged with supervising and managing the project as a whole. Therefore, the First Circuit concluded that Admiral met its burden of establishing that the Toll action only alleges damage falling within the exclusion and that there was no exception to that exclusion that applied. ZALMA OPINION This is a case of a court applying Occam’s Razor, by picking an easy and obvious solution – the application of an exclusion – and avoiding the problem of different court rulings on coverage about “property damage” and “occurence.” Since the exclusion clearly applied there was no duty to defend. (c) 2024 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to my substack at https://barryzalma.substack.com/subscribe Go to X @bzalma; Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg Go to the Insurance Claims Library – https://lnkd.in/gwEYk Subscribe to my substack at https://lnkd.in/gmmzUVBy

Bad Faith Set Up Fails Read the full article at https://www.linkedin.com/pulse/bad-faith-set-up-fails-barry-zalma-esq-cfe-jllxc, see the full video at and at and at https://zalma.com/blog plus more than 4900 posts. Inadequate Information Made Refusal to Pay Policy Limits Not Bad Faith INADEQUATE MEDICAL AUTHORIZATION USED TO CAUSE INSURER TO REFUSE SETTLEMENT DEMAND Post 4930 Kara Flick appealed from the judgment after a jury rejected her claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Flick contends the judgment should be reversed due to juror misconduct. In KARA FLICK v. UNITED SERVICES AUTOMOBILE ASSOCIATION, B330507, California Court of Appeals, Second District, Sixth Division (November 5, 2024) the Court of Appeals resolved the dispute. FACTUAL HISTORY After sustaining injuries in an automobile accident caused by Francisco Reyes, Jr., Flick had her attorney send Reyes's insurer, the United Services Automobile Association (USAA), a letter explaining the severity of her injuries and an authorization for the release of her medical records. Flick's attorney followed up with a settlement demand two months later, requesting that USAA pay Flick the entirety of Reyes's $100,000 policy limit in exchange for a release of liability. Attached to the demand was a single medical record from Flick's neurologist. USAA investigated Flick's claim and determined it did not have sufficient information to accept or reject her demand. Flick then filed a personal injury lawsuit against Reyes. The jury found in her favor and awarded nearly $1.7 million in damages. Flick, with an assignment from the Reyes, sued USAA for breach of contract and breach of the implied covenant of good faith and fair dealing. TRIAL At trial, a USAA claims adjustor admitted that Reyes was fully at fault for the accident with Flick. Reyes could therefore be exposed to liability in excess of his policy limits-if Flick provided sufficient documentation to support her claim. USAA's expert on insurance claims handling and another of its claims service managers both agreed with the supervisor that Flick's authorization was invalid and inadequate to allow USAA to obtain Flick's medical records. USAA needed additional records before it could determine the value of Flick's claim. Those records could have included the medical bills Flick provided to her own insurance company, the multiple doctor's notes she had excusing her from work, or the thumb drive recording her purported speech problems, all of which were entered into evidence at her personal injury trial. Because they were not provided to USAA, it was "very difficult to place a value on" Flick's claim. Flick's expert testified that USAA's handling of the settlement demand "was clearly unreasonable." Flick also did not respond to USAA's requests for additional information. By a vote of nine to three, the jury found that Flick did not make a reasonable settlement demand of USAA and rejected her claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The trial court polled the jury, and each juror confirmed their vote. DISCUSSION The Court of Appeals concluded the trial court did not abuse its discretion in denying Flick's new trial motion. USAA successfully rebutted the presumption of prejudice by showing there is no reasonable probability that the juror, D.C.'s misconduct by not explaining he did not hear all of the adjuster's testimony, actually harmed Flick. Much of the adjustor's testimony consisted of facts regarding his communications with Flick's attorney - facts that were undisputed. What was disputed-whether Flick's settlement demand was reasonable-was the subject of other witness testimony, including USAA's expert on insurance claims handling, its supervising claims service manager, Flick's personal injury attorney, and her expert witness on insurance claims handling. What the admitted evidence showed was that D.C. confirmed multiple times that he voted that Flick did not make a reasonable settlement demand: Based on this record there was no reasonable probability that D.C.'s alleged juror misconduct actually harmed Flick. ZALMA OPINION The tort of bad faith arose from abuse by insurers on those they insured. Since its adoption in California about three quarters of a century ago, the abuse has been turned on to insurers. Ms. Flick's counsel placed a demand for settlement on USAA that it could not reasonably and in good faith to its insured, Reyes, because it was incomplete and inadequately supported and forced Flick and Reyes go through a trial where she received an uncollectible judgment against Reyes in hopes of a gigantic bad faith judgment. After much litigation and USAA spending a great deal to defend itself she received the $100,000 policy limit. USAA was punished but neither Flick nor her lawyers profited from the scheme or the appeal. (c) 2024 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to my substack at https://barryzalma.substack.com/subscribe Go to X @bzalma; Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg Go to the Insurance Claims Library – https://lnkd.in/gwEYk

No Breach of Contract no Bad Faith Happy Veterans Day to My Fellow Veterans Some Claims Proper Some Not Read the full article at https://www.linkedin.com/pulse/happy-veterans-day-my-fellow-barry-zalma-esq-cfe-ovpec, shttps://www.linkedin.com/pulse/happy-veterans-day-my-fellow-barry-zalma-esq-cfe-ovpec and at https://zalma.com/blog plus more than 4900 posts. Post 4929 Vepo Design Corporation and its officers (collectively, “Vepo”) appealed the district court’s grant of summary judgment on their breach of contract and bad faith claims against American Economy Insurance Company (“AEIC”). Vepo’s claims relate to AEIC’s denial of coverage following a fire in a laundromat, known as the “Central Laundromat,” which Vepo was developing. In Vepo Design Corporation, et al. v. American Economy Insurance Company, No. 23-55634, United States Court of Appeals, Ninth Circuit (November 4, 2024) the issues were resolved serially. DECISIONS Business Income The Ninth Circuit reversed the district court’s grant of summary judgment in favor of AEIC on Vepo’s business income claim, which concerns income Vepo contends it would have earned operating the Central Laundromat if the fire had not occurred. AEIC argued that Vepo’s claim for lost income was too speculative given that the Central Laundromat was still under construction and Vepo had not secured additional financing to own and operate it. Construing the facts in the light most favorable to Vepo as the non-moving party the Ninth Circuit concluded that there is sufficient evidence to create a genuine dispute of material fact and that Vepo’s claim for lost business income is not unduly speculative. There is evidence that Vepo was contemplating an arrangement under which it would own and operate the Central Laundromat for a period of time before selling it, and that Vepo later engaged in similar arrangements for other laundromats. Vepo, which was experienced in the laundromat industry, also demonstrated that it had a history of securing financing for its laundromat projects and that it intended to refinance the Central Laundromat once a certificate of occupancy was received. Although Vepo had not secured refinancing for the Central Laundromat as of the time of the fire, Vepo’s Principal Owner stated in her declaration and confirmed at her deposition that it was too early to do so in the project timeline. That Vepo had yet to refinance does not render its claim too speculative as a matter of law and its losses are for a jury to decide. Extra Expense The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of AEIC for the extra expenses that Vepo allegedly incurred in storing laundry equipment in a warehouse owned by Vepo’s sister company following the fire. While the policy only required the expense to be incurred, not paid, there was insufficient evidence to create a triable issue over whether the expense was incurred at all. No payment changed hands between the two entities, and there is no accounting record showing that Vepo was liable for the storage amount. When the same person signed as representative of both entities, does not create a genuine dispute of material fact. Lost Profits The Ninth Circuit concluded that the district court properly granted summary judgment on Vepo’s claim for lost profits on the prospective sale of the laundromat. Even assuming that such a loss would be covered under the policy, the claim fails because the policy limited coverage to losses that occur within one year of the incident. Vepo’s plan called for it to own and operate the Central Laundromat for at least one year after opening, which would place any hypothetical sale more than a year after the pre-opening fire. Individual Personal Property Claims The Ninth Circuit affirmed summary judgment for AEIC on the claims by the individual plaintiffs for their own personal property that was allegedly lost in the fire. As the district court correctly found, Vepo did not identify what individual property was lost or its worth. The individual plaintiffs’ claims were too unsupported to create a triable issue. Bad Faith The Ninth Circuit partially reversed the district court’s grant of summary judgment on Vepo’s bad faith claim, to the extent of the single insurance claim it allowed to go forward-the business income claim. The district court may permit any further motions practice on the bad faith claim as it deems appropriate. However, it affirmed the district court’s grant of summary judgment on the bad faith claim insofar as that claim is premised on any of the other breach of contract claims to which AEIC is entitled to judgment as a matter of law. There is never a claim for breach of the implied duty of good faith and fair dealing if there was no improper denial of coverage under the policy. ZALMA OPINION The importance of this case is the reiteration of the law that there can never be a viable tort of bad faith if there is no improper denial of a claim by breach of the insurance contract. If the one cause of action remaining was breached in bad faith and there was no genuine dispute over coverage, that cause can be brought for bad faith damages. The other decisions of the Ninth Circuit were obvious and well reasoned. (c) 2024 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to my substack at https://barryzalma.substack.com/subscribe Go to X @bzalma; Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg Go to the Insurance Claims Library – https://lnkd.in/gwEYk

Who’s on First & in What Percentage Application of Diverse “Other Insurance” Clauses Insurers Protected Insured and Litigated Their Differences Post 4920 Two insurance companies- Gemini and Zurich- asked the Eleventh Circuit Court of Appeal to determine what share of a $2 million settlement each is required to pay. The district court entered judgment for Gemini, ordering that Zurich pay $500,000 plus prejudgment interest. Both parties appealed, with Gemini seeking another $500,000 and Zurich challenging the award of prejudgment interest. In Gemini Insurance Company v. Zurich American Insurance Company, No. 22-13495, United States Court of Appeals, Eleventh Circuit (October 23, 2024) the competing “other insurance clauses” were resolved. FACTS After the death of Josue Vallejo, who was struck by a tractor-trailer operated by an employee of FSR Trucking, Inc two of three insurers disputed what proportion of the settlement each should pay. Zurich insured FSR, through its coverage of Commercial, for $1 million. Gemini also insured FSR for $3 million. The Vallejo claim settled for $3 million, of which Gemini contributed $2 million. Ryder’s insurance company, which is not a party to this appeal, contributed the other $1 million. Gemini and Zurich agree that they each owe a share of the $2 million, but dispute how much each one must pay. Under Gemini’s theory, they each owe $1 million. Under Zurich’s theory, they each owe their pro rata share, which is $500,000 for Zurich and $1.5 million for Gemini. The different theories of coverage turn on the application of the two policies’ “other insurance” clauses, which generally function to apportion coverage when there is overlapping insurance. Gemini argues that its policy is excess to Zurich’s, while Zurich argues that the policies attach at the same level and thus trigger pro rata contribution. Gemini sued Zurich for a declaratory judgment in its favor and an award of $1 million plus interest under claims of contractual subrogation or equitable subrogation/contribution. Zurich tendered $500,000 to Gemini to satisfy its pro rata share. Gemini, however, continued to litigate for the other $500,000 plus interest on the entire amount. Gemini appealed the District Court’s ruling in favor of Zurich and sought to obtain the other $500,000. ANALYSIS In Florida, where more than one insurer’s policy provides coverage for a loss, as the parties agree is the case here, it is appropriate to review the insurance contracts to see if the documents address the ‘ranking’ or contribution of other insurers. The Other Insurance Clauses Gemini’s “other insurance” clause provides: “This insurance is excess over and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis. This condition will not apply to insurance specifically written as excess over this policy.” Zurich’s “other insurance” clause is slightly different. “When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. Interpretation of the “Other Insurance” Clauses Where two insurance policies contain excess insurance clauses the clauses are deemed mutually repugnant and both insurers become primary and share the loss on a pro rata basis in accordance with their policy limits. Zurich argued, and the district court agreed, that both policies contain excess clauses such as pro rata contribution results. The Eleventh Circuit Court of Appeals sided with Gemini because when two policies containing conflicting “other insurance” or excess [uninsured/underinsured motorist] clauses. In sum an “other insurance” clause containing the phrase “we will pay the proportion of damages payable as excess” means that the clause was pro rata, even though it also characterized itself as an excess clause. Moreover, the Eleventh Circuit concluded both policies were primary. The Eleventh Circuit reversed the district court’s resolution of the cross-motions for summary judgment with regard to the amount of contribution and remanded the case for entry of judgment in favor of Gemini for the principal amount of $1,000,000, with the understanding that Zurich has already paid half of that sum. Upon entry of the amended final judgment on remand, Gemini will be the prevailing party. When a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss. The Eleventh Circuit reversed the district court’s resolution of the cross-motions for summary judgment and remanded for the court to enter judgment in favor of Gemini in the principal amount of $1,000,000 understanding that Zurich has already paid $500,000. It also affirmed the award of prejudgment interest on the first $500,000 and direct the court to award Gemini prejudgment interest on the second $500,000 from February 7, 2019, until the date of the amended final judgment. ZALMA OPINION The three insurers of the defendant did the right thing by protecting the insured and then resolving their dispute over the share owed in court. Although insurance companies, generally, should not sue each other. “Other Insurance” clauses invariably raise disputes between insurers and often cause hardship to the insured. In this case Gemini, Zurich and an unnamed insurer put up the $3 million to settle and then Gemini and Zurich sued to clarify who owed what. The Eleventh Circuit found that the District Court was wrong because interpreting the competing “other insurance” clauses should have resulted in a finding that both Gemini and Zurich were primary insurers and each owed $1 million of the settlement and Zurich owed Gemini $500,000 plus interest. (c) 2024 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe to my substack at https://barryzalma.substack.com/subscribe Go to X @bzalma; Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg Go to the Insurance Claims Library – https://lnkd.in/gwEYk

AN AMERICAN WAS JUST JAILED WITHOUT BOND FOR AN OVERTURNED LAW #Criminals gravitate towards the illegitimate "government" they are a psychopathic #OrganizedCrime syndicate And let there be no mistake... What you call "government" IS ORGANIZED CRIME ! This video is just one more, in an unending line of EXAMPLES proving that FACT! The #Police who filed these bogus charges should be PROSECUTED UNDER TITLE 18 U.S.C. § 241 Conspiracy Against Rights AND 18 U.S.C. § 242 Deprivation of Rights Under Color of Law They should be found GUILTY and sent to PRISON, lose their job, their pensions, and be forced to sell their homes, to pay damages to the man wronged by their CRIMINAL ACTIONS! This is PURE unadulterated criminality on full display! Shooting these scumbags is too good for them! They should DIE IN PRISON for this criminal act Because wrongfully arresting a man is a heinous crime... Which is comparative to MURDER Because you are essentially "Murdering" an innocent man's life! https://old.bitchute.com/video/lUD4tbYokyw/

NEW BODY CAM SHOWS POLICE ABUSE OF REBEKAH MASSIE More #Police & #Government #Criminals Every last scumbag responsible for this should be in JAIL! I'm talking about ALL of the City Council AND every Cop involved! Until there is actual ACCOUNTABILITY this will continue! The Police Officer needs to be CHARGED under TITLE 18 U.S.C. § 241 and 18 U.S.C. § 242 EVERY TIME THEY VIOLATE RIGHTS! Secondly, Police need to be REQUIRED BY LAW to carry ACTIVE liability insurance in order to be ELIGIBLE TO WORK AS A LEO, and if that insurance is cancelled they should lose their LEO's Certification and be fired if working as a LEO! Thirdly, when Police are sued for civil rights violations THE OFFICER HIMSELF should be the defendant, AND responsible for paying out any award or damages! Their Liability Insurance should have to pay, NOT TAXPAYERS! And lastly.... Officers sued for civil rights violations should also be CHARGED CRIMINALLY and sent to PRISON just like any other American! As a matter of fact, POLICE OFFICERS should have their "occupation" removed from any and ALL court documents. EVERYONE'S OCCUPATION should be removed from ALL COURT DOCUMENTS so that judges sentence EVERYONE THE SAME! Of course judges are #Criminals too! As are Prosecutors! The entire system is corrupt top to bottom! But these things would certainly HELP until such time we remove the CORPORATION of the United States from American soil permanently and forever! IMAGINE THE DIFFERENCE IT WOULD MAKE IF POLICE HAD TO FACE THE CONSEQUENCES OF THEIR UNLAWFUL ACTIONS!!! Right now they KNOW they won't be held accountable! Imagine if they faced JUSTICE like everyone else does, and would be sent to PRISON for falsely imprisoning and kidnapping Americans, beating them up, assaulting and torturing them, treating them like animals.... Just IMAGINE the difference that would make in their "Holier than Thou" demeanor! And their purely CRIMINAL behavior ALL OF THIS MISCONDUCT, ABUSE, UNLAWFUL DETAINMENT AND IMPRISONMENT, KIDNAPPING OF THE CHILD ETC.... IS ALL ON VIDEO FOLKS! HOW LONG WOULD IT TAKE A JURY OF 12 TO CONVICT EVERY ONE OF THESE PEOPLE??? ABOUT 30 SECONDS! And that is exactly what should be happening! There is absolutely no excuse for NOT PROSECUTING these criminals https://old.bitchute.com/video/Nepmfu8LqXc/

Lawyers ask Alberta court to allow businesses to seek damages from gov’t for COVID shutdown - LifeSite 🇨🇦 #NoMoreLiberalsAndNDP 🇨🇦 🇨🇦 #SayingTheQuietPartOutLoud 🇨🇦 🇨🇦 #resigntrudeau 🇨🇦 🇨🇦 #JustSayNoMore 🇨🇦 https://www.lifesitenews.com/news/lawyers-ask-alberta-court-to-allow-businesses-to-seek-damages-from-govt-for-covid-shutdown

Lawyers ask Alberta court to allow businesses to seek damages from gov’t for COVID shutdown - LifeSite 🇨🇦 #NoMoreLiberalsAndNDP 🇨🇦 🇨🇦 #SayingTheQuietPartOutLoud 🇨🇦 🇨🇦 #resigntrudeau 🇨🇦 🇨🇦 #JustSayNoMore 🇨🇦 https://www.lifesitenews.com/news/lawyers-ask-alberta-court-to-allow-businesses-to-seek-damages-from-govt-for-covid-shutdown

...IMHO: THE ENTIRE ROCKEFELLER FAMILY SHOULD BE EXTERMINATED, IN SELF-DEFENSE, AND THEIR FORTUNES TAKEN TO PAY FOR THE DAMAGES, ("CRIMES AGAINST HUMANITY"),...INJURIES, AND DEATHS, THEY CAUSED, WORLDWIDE!!!!!!!! https://media.gab.com/cdn-cgi/image/width=568,quality=100,fit=scale-down/system/media_attachments/files/166/302/377/original/eddf81cc574d0147.png

BLM terrorists caused billions of dollars in damages all across America, and Derek Chauvin was sentenced to 21 years in prison for the overdose death of George Floyd. Rosanne Boyland was literally beaten to death by a Capitol Police officer and not one charge was made. This is an outrageous example of America’s two-tiered justice system. https://static-assets-1.truthsocial.com/tmtg:prime-ts-assets/media_attachments/files/113/119/543/708/915/393/original/c521a2a013047004.mp4