Zalma on Insurance
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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.
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March 04, 2022
No Harm No Foul – Lack of Damages Defeats Suit Against Broker

Plaintiff Had No Right to Rely on a Certificate of Insurance

Read the full article at https://www.linkedin.com/pulse/harm-foul-lack-damages-defeats-suit-against-broker-zalma-esq-cfe and https://zalma.com/blog plus more than 4100 posts.

A suit against an insurance broker for failing to acquire insurance was defeated with a motion for summary judgment because the plaintiff incurred no damage as a result of the alleged failure and because the plaintiffs failed to allege the elements of fraud. The order, appealed from denied those branches of its motion which were for summary judgment on the issue of liability on the third-party causes of action to recover damages for breach of contract, negligence, and fraud, and granted those branches of the third-party defendants’ cross motion which were for summary judgment dismissing those third-party causes of action.

In Devair Da Silva v. Champ Construction Corp., A. Logan Insurance Brokerage, et al., 186 A.D.3d 452, 128 N.Y.S.3d 582, 2017-10174, Index No. 506852/13, Supreme Court, Appellate Division, Second Department, New York (August 5, 2020) the appellate court resolved the dispute.
FACTS

The plaintiff sued to recover damages for personal injuries he allegedly sustained in a construction-site. The amended complaint alleged violations of Labor Law §§ 200, 240, and 241(6). At the time of the accident, the plaintiff was employed by the defendant Champ Construction Corp. (hereinafter Champ Construction).

Champ Construction sued an insurance broker, A. Logan Insurance Brokerage (hereinafter Logan), and Scott Handwerger, its principal (hereinafter together the third-party defendants). Champ Construction alleged that Handwerger, on behalf of Logan, had agreed to procure workers’ compensation coverage for the construction project, yet failed to do so.

The Supreme Court (trial court) denied those branches of Champ Construction’s motion which were for summary judgment on the third-party causes of action to recover damages for breach of contract to procure insurance, negligent failure to procure insurance, and fraud relating to the failure to procure insurance, and granted those branches of the third-party defendants’ cross motion which were for summary judgment dismissing those third-party causes of action. Champ Construction appeals.
ANALYSIS

An insurance broker may be held liable under theories of breach of contract or negligence for failing to procure insurance upon a showing by the insured that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction.

Champ Construction failed to allege or present evidence that showed the existence of an agreement by the third-party defendants to procure workers’ compensation insurance for this project, nor that the third-party defendants specifically undertook a duty to procure such an insurance policy.

The third-party defendants established that notwithstanding the lack of workers’ compensation insurance, the plaintiff received benefits from the general workers’ compensation fund relating to this occurrence. Champ Construction produced no evidence to the contrary. The Supreme Court determined in a related declaratory judgment action, the indemnification contract was not validly executed.

The record showed, as a matter of law, that any failure to procure insurance did not proximately cause damages to Champ Construction.

A cause of action alleging fraud requires the plaintiff to plead:

a material misrepresentation of a fact,

knowledge of its falsity,

an intent to induce reliance,

justifiable reliance, and

damages.

Champ Construction failed to show, prima facie, that the third-party defendants made a material misrepresentation of fact as to the procurement of insurance. Moreover, the certificate of insurance that was purportedly issued by the third-party defendants provided that it was “issued as a matter of information only and confer[red] no rights upon the certificate holder.” Accordingly, as the Supreme Court found, it was unreasonable to rely on that certificate for coverage in the face of th[at] disclaimer language.

Therefore, the third-party defendants were entitled to summary judgment dismissing the third-party fraud cause of action.
ZALMA OPINION

To pursue a claim against an insurance agent for failing to acquire insurance ordered it is necessary to allege and prove that an order was made, that the insurance was not obtained and that the plaintiff was damaged as a result of the failure. Since the evidence established that the plaintiff was not damaged no action could survive. Since the certificate, on which the plaintiff alleged it relied, was issued only as a matter of information only and “conferred no rights on the certificate holder” there was no reason to rely on the certificate.

© 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/

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15 hours ago
Zalma’s Insurance Fraud Letter – November 1, 2025

ZIFL – Volume 29, Issue 21

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Post 5220

Read the full article at https://lnkd.in/gRMJpi4s, see the video at https://lnkd.in/gwGSd6ZA & at https://lnkd.in/gbDiuFJy, and at https://zalma.com/blog plus more than 5200 posts.

See the video at & at https://rumble.com/v711hr0-zalmas-insurance-fraud-letter-november-1-2025.html

See the full 18 page issue of ZIFL at ZIFL-11-01-2025

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/

Conviction for Health Insurance Fraud Upheld

Physician Conspired with Bonavilla to Effect Health Insurance Fraud

Dennis Davin Bonavilla was involved in an insurance fraud scheme as an executive of Free Choice Healthcare. The scheme targeted indigent patients, often on ...

00:10:22
October 31, 2025
The Zalma Philosophy of Claims Handling – Part 8

The Professional Claims Handler

Post 5218

Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.

Claims Commandment X – Thou Shall Not Pretend to be a Lawyer

Some experienced and professional claims people know the law in their area of expertise better than most lawyers.

Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.

Claims Commandment XI – Thou Shall Empathize With the Claimant

Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.

Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....

00:11:08
October 28, 2025
The Zalma Philosophy of Claims Handling – Part 6

HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM

See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.

Post 5217

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.

An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.

The excellence in claims handling program should include, at a minimum:

A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...

00:08:40
October 31, 2025
The Zalma Philosophy of Claims Handling – Part 9

The Professional Claims Handler
Post 5219

Posted on October 31, 2025 by Barry Zalma

An Insurance claims professionals should be a person who:

Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.

How to Create Claims Professionals

To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...

post photo preview
October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail

Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.

My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
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