Zalma on Insurance
Education • Business
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
March 02, 2022
Who’s on First? Employer’s Insurer While Driving Home

Trucker Driving to his Home Where Truck is Garaged is Still Working for Employer

Read the full article at https://www.linkedin.com/pulse/whos-first-employers-insurer-while-driving-home-zalma-esq-cfe and at https://zalma.com/blog plus more than 4100 posts.

Posted on March 2, 2022 by Barry Zalma
INSURERS SHOULD AVOID LITIGATING OVER WHO INSURES WHAT

It should be axiomatic that insurers who both insure the same person should resolve coverage disputes rather than litigate. When two insurers disputed which was required to defend and indemnify an insured they brought about a necessary appeal when they could have, and should have, resolved the dispute directly or with the assistance of Alternative Dispute Resolution

like mediation.

Acuity, A Mutual Insurance Company (“Acuity”) preferred to litigate and, after losing, appealed the decision of the Butler County Court of Common Pleas granting summary judgment to Great American Assurance Company (“GAAC”). In Great American Assurance Company v. Acuity, A Mutual Insurance Company, et al., 2022-Ohio-501, No. CA2021-08-097, Court of Appeals of Ohio, Twelfth District, Butler (February 22, 2022) the Court of Appeals resolved the dispute between insurers.
FACTS

This case arose from a vehicular accident between a 2000 Volvo tractor owned by Herb Winsted (“the Truck”) and another motor vehicle. At the time of the accident, Winsted was an independent contractor for Wm. Hafer Drayage Co. (“Hafer”), which is an intermodal trucking company that hauls containers via company drivers and independent contractors.

Pursuant to his independent contractor agreement with Hafer, Winsted provided transportation related services to Hafer and used the Truck to move containers to and from different warehouses. Winsted began exclusively hauling loads for Hafer in 2019, and at the time of the accident, the Truck displayed Hafer’s name and “DOT” number on its door.
Winsted’s Insurance Coverage

Pursuant to Winsted’s independent contractor agreement with Hafer, the Truck was covered by Hafer’s “public liability [and] property damage * insurance coverage[.]” At the time of the accident, Hafer was insured with Acuity via a Commercial Auto and Commercial Excess Liability Policy (“the Acuity Policy”). Pursuant to the Acuity Policy, Acuity agreed to injuries caused by an accident and resulting from the ownership, maintenance or use of a covered auto. The parties do not dispute that the Acuity Policy includes the Truck in its schedule of covered autos.

Winsted also obtained a Non-Trucking Liability and Physical Damage Policy from GAAC for the Truck while it was not being operated on behalf of Hafer (“the GAAC Policy”). Obtaining such a policy was a requirement of Winsted’s independent contractor agreement with Hafer. Pursuant to the GAAC Policy, GAAC agreed to provide liability coverage for the Truck as described by Part (II)(A) of the policy.
Winsted’s Business for Hafer and the Day of the Accident

While working with Hafer, Winsted received his job assignments from Hafer’s dispatcher. After completing his final assignment of the day, Winsted would either proceed to the Hafer shipping yard (“the shipping yard”), or go directly to his home. Winsted typically began and ended his workday with the Truck at his home.

On October 4, 2019, the date of the accident, Winsted informed dispatch that he had completed a delivery, but still had a chassis. At that point, dispatch instructed Winsted to return to the shipping yard to return the chassis. The location of Winsted’s final delivery was approximately two or three miles from the Hafer shipping yard. Upon arriving at the shipping yard, Winsted returned the chassis and submitted his weekly paperwork to the dispatcher. On his way home, Winsted stopped at Ollie’s Bargain Outlet (“Ollie’s”), where his wife was working at the time, and purchased blue jeans. After leaving Ollie’s, Winsted continued his customary route home, stopping for fuel at a Marathon gas station on the way. The accident occurred after Winsted left the Marathon gas station, around 5:00 p.m., and on Winsted’s typical route home from the shipping yard.

After purchasing fuel, Winsted continued on Hamilton Cleves Road, as he would have on a typical drive home. Approximately five to seven minutes from Winsted’s home, at the intersection of Cincinnati Brookville Road and Brown Farm Drive, Winsted collided with another vehicle, allegedly causing harm to the vehicle’s minor passengers. Thus, despite the brief departures and returns to his normal route, Winsted’s drive home from the shipping yard was the same route he would have typically taken at the end of a workday.
The Declaratory Action and Summary Judgment Decision

After the accident, GAAC filed a complaint for declaratory judgment in the trial court. Relevant here, GAAC requested the trial court to enter a judgment against Acuity declaring that, based on the language in the Trucking or Business Use Exclusion in the GAAC Policy did not provide coverage for injury arising out of the October 2019 accident.

The trial court granted GAAC’s motion for summary judgment and denied Acuity’s motion. In so doing, the trial court held that “based upon the undisputed facts, * the GAAC Policy does not provide coverage based upon the application of the GAAC Policy’s Trucking or Business Use Exclusion.”
The Appeal

The words and phrases contained in an insurance policy must be given their plain and ordinary meaning unless there is something in the contract that would indicate a contrary intention. It is well established that contracts of insurance are to be strictly construed against the insurer, especially when an exclusionary clause is at issue.

The parties do not dispute that the Truck is a covered auto as defined by the GAAC Policy, that the Truck was regularly garaged at Winsted’s home, or that the shipping yard is a facility of Hafer, a lessee. The primary issue on appeal is whether Winsted was “in the business of [Hafer],” as that term is defined in the Trucking or Business Use Exclusion, at the time of the accident.

The Court of Appeal concluded that when a driver is operating a vehicle in the business of a motor carrier on a customary route, short personal detours do not take the driver out of the business of the motor carrier and that Winsted was operating the Truck “in the business of Hafer at the time of the accident.” This is because Winsted had completed his short personal detours and returned to his customary route home before the accident occurred. Consequently, because Winsted was traveling from a Hafer facility to the place where the Truck was regularly garaged at the time of the accident, the GAAC Policy excludes any coverage for damage or liability.

Lastly, while the court agreed with Acuity that Winsted did not travel directly from the Hafer facility to his home, it disagreed that such a fact precludes application of the GAAC Policy’s Trucking or Business Use Exclusion. Winsted’s brief personal detours did not negate that Winsted was traveling from the facility of the lessee to a location where the Truck was regularly garaged, nor did they alter his status of being in the business of Hafer at the time of the accident. On this basis, reasonable minds could only conclude that the GAAC Policy does not provide coverage in this instance.

Thus, in light of the plain and unambiguous language in the policy GAAC has demonstrated that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

Because the Trucking or Business Use Exclusion conclusively resolves this dispute. Finding no error in the trial court’s decision granting summary judgment in favor of GAAC.
ZALMA OPINION

The Court of Appeal, as the parties were required to do, read both insurance policies and applied the terms and conditions of the policies as written. Since Winsted garaged the Volvo Tractor at his home and started and ended his work for Hafer at that home, the Court of Appeal, affirming the trial court, concluded that since the accident happened before he got home he was in the course and scope of his work and the Acuity policy applied to the accident and the GAAC policy, that excluded business uses, did not. A decision that could easily have been reached if the two insurer’s adjusters met and reviewed the facts rather than turning the dispute over to lawyers.

© 2022 – 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 practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

Subscribe to “Zalma on Insurance” at https://zalmaoninsurance.locals.com/subscribe and “Excellence in Claims Handling” at https://barryzalma.substack.com/welcome.

You can contact Mr. Zalma at https://www.zalma.com, https://www.claimschool.com, [email protected] and [email protected] . Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

You may find interesting the podcast “Zalma On Insurance” at https://anchor.fm/barry-zalma; you can follow Mr. Zalma on Twitter at; you should see Barry Zalma’s videos on https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg/featured; or videos on https://rumble.com/zalma. Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims–library/ The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/

Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
July 18, 2025
Solomon Like Decision: No Duty to Defend – Potential Duty to Indemnify

Concurrent Cause Doctrine Does Not Apply When all Causes are Excluded
Post 5119

Death by Drug Overdose is Excluded

See the full video at https://lnkd.in/geQtybUJ and at https://lnkd.in/g_WNfMCZ, and at https://zalma.com/blog plus more than 5100 posts.

Southern Insurance Company Of Virginia v. Justin D. Mitchell, et al., No. 3:24-cv-00198, United States District Court, M.D. Tennessee, Nashville Division (October 10, 2024) Southern Insurance Company of Virginia sought a declaratory judgment regarding its duty to defend William Mitchell in a wrongful death case pending in California state court.

KEY POINTS

1. Motion for Judgment on the Pleadings: The Plaintiff moved for judgment on the pleadings, which was granted in part and denied in part.
2. Duty to Defend: The court found that the Plaintiff has no duty to defend William Mitchell in the California case due to a specific exclusion in the insurance policy.
3. Duty to Indemnify: The court could not determine at this stage whether the Plaintiff had a duty to ...

00:08:21
July 17, 2025
No Good Deed Goes Unpunished

GEICO Sued Fraudulent Health Care Providers Under RICO and Settled with the Defendants Who Failed to Pay Settlement

See the full video at https://lnkd.in/gDpGzdR9 and at https://lnkd.in/gbDfikRG, and at https://zalma.com/blog plus more than 5100 posts.

Post 5119

Default of Settlement Agreement Reduced to Judgment

In Government Employees Insurance Company, Geico Indemnity Company, Geico General Insurance Company, and Geico Casualty Company v. Dominic Emeka Onyema, M.D., DEO Medical Services, P.C., and Healthwise Medical Associates, P.C., No. 24-CV-5287 (PKC) (JAM), United States District Court, E.D. New York (July 9, 2025)

Plaintiffs Government Employees Insurance Company and other GEICO companies (“GEICO”) sued Defendants Dominic Emeka Onyema, M.D. (“Onyema”), et al (collectively, “Defendants”) alleging breach of a settlement agreement entered into by the parties to resolve a previous, fraud-related lawsuit (the “Settlement Agreement”). GEICO moved the court for default judgment against ...

00:07:38
July 15, 2025
Zalma’s Insurance Fraud Letter – July 15, 2025

ZIFL – Volume 29, Issue 14
Post 5118

See the full video at https://lnkd.in/geddcnHj and at https://lnkd.in/g_rB9_th, and at https://zalma.com/blog plus more than 5100 posts.

You can read the full 20 page issue of the July 15, 2025 issue at https://lnkd.in/giaSdH29

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

This issue contains the following articles about insurance fraud:

The Historical Basis of Punitive Damages

It is axiomatic that when a claim is denied for fraud that the fraudster will sue for breach of contract and the tort of bad faith and seek punitive damages.

The award of punitive-type damages was common in early legal systems and was mentioned in religious law as early as the Book of Exodus. Punitive-type damages were provided for in Babylonian law nearly 4000 years ago in the Code of Hammurabi.

You can read this article and the full 20 page issue of the July 15, 2025 issue at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-07-15-2025.pdf

Insurer Refuses to Submit to No Fault Insurance Fraud

...

00:08:27
July 16, 2025
There is no Tort of Negligent Claims handling in Alaska

Rulings on Motions Reduced the Issues to be Presented at Trial

Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.

CASE OVERVIEW

In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.

FACTS

Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.

Prior to trial Bernier had three remaining claims against State Farm:

1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.

Both Bernier and State Farm dispositive motions before ...

post photo preview
May 15, 2025
Zalma's Insurance Fraud Letter - May 15, 2025

ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional

See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.

Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:

Health Care Fraud Trial Results in Murder for Hire of Witness

To Avoid Conviction for Insurance Fraud Defendants Murder Witness

In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...

May 15, 2025
CGL Is Not a Medical Malpractice Policy

Professional Health Care Services Exclusion Effective

Post 5073

See the full video at https://lnkd.in/g-f6Tjm5 and at https://lnkd.in/gx3agRzi, and at https://zalma.com/blog plus more than 5050 posts.

This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.

In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:

Insurance Coverage Dispute:

Travelers issued a Commercial General Liability ...

See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals