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August 24, 2022
Duty to Defend is not Unlimited

Judgment Eliminating Defamation Coverage Defeats Coverage

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Although the duty to defend is exceedingly broad the obligation of an insurer to defend and insured is not unlimited. In University Of Louisville v. Kentucky School Boards Insurance Trust And Cyril William Helm, No. 2021-CA-1066-MR, Court of Appeals of Kentucky (August 19, 2022) the University of Louisville (the “University”) appealed from the summary judgment in favor of Kentucky School Boards Insurance Trust (KSBIT) regarding KSBIT’s duty to provide a defense and indemnification in a separate circuit court case pursuant to a policy of insurance.

KSBIT is a domestic insurer that was created in 1978 to provide liability coverage to educational entities via a non-profit self-insurance pool of funds. KSBIT issued a general liability insurance policy to the University, which was renewed for several years. The Coverage B section of the policy addresses coverage for personal and advertising liability, and Section I(B)(1)(a) provides in relevant part that “[w]e [KSBIT] will pay those sums that the Member [the University] becomes legally obligated to pay as damages because of ‘personal injury’ or ‘advertising injury’ to which this coverage part applies.” In the definitional section of the policy, Section V(10) defines “personal injury” as: False arrest, detention or imprisonment; Malicious prosecution; the wrongful eviction from, wrongful entry into, or invasion of the right of a private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor; oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; oral or written publication of material that violates a person’s right of privacy; or mental injury, mental anguish, shock, humiliation, defamation, and damage to professional reputation.

The underlying matter began with a suit for a declaratory judgment by KSBIT , in January 2021 related to the policy. In this action, KSBIT sought a declaration that it did not have any obligation under the insurance policy to defend or indemnify the University as a result of a Kentucky Whistleblower Act claim filed by Dr. Cyril Helm (Helm v. University of Louisville, Jefferson Circuit Court Case No. 15-CI-01410).
FACTS

Dr. Helm’s dispute with the University began in 2009, after his colleagues had alleged he had committed plagiarism or other misconduct in his research. Dr. Helm went on to file several lawsuits against the University and his colleagues arising from the misconduct allegations and the University’s investigation into whether he had engaged in misconduct, including the one noted above.

In the lawsuit before the court Dr. Helm alleged that he had suffered a personal injury, and KSBIT provided a defense to the University subject to a reservation of rights. Dr. Helm pled a claim for damages, including substantial losses in earnings, job experience, and benefits; damage to his academic reputation; and emotional and physical stress. He sought compensatory and punitive damages as well as costs and attorney fees.

The Jefferson Circuit Court ruled that Dr. Helm could not recover damages for mental anguish/pain and suffering, front pay, or from having to sell his house in a certain market. It also dismissed Dr. Helm’s claim for punitive damages. The only remaining claims were for back pay and attorney fees.

Because Dr. Helm’s claims for back pay and attorney fees did not arise from a personal injury as defined in the policy, KSBIT alleged that there was no longer any factual or legal basis under the policy requiring it to defend or indemnify the University in Dr. Helm’s underlying suit. Therefore, KSBIT sought a declaration that it did not have an obligation to further defend or indemnify the University for the claims Dr. Helm asserted in his underlying action.

The circuit court entered an order granting summary judgment to KSBIT, rejecting the University’s arguments and holding that KSBIT was not required to provide a continuing defense to the University.
ANALYSIS

In its summary judgment the circuit court rejected the University’s argument that the back pay and attorney fees grew out of, flowed from, or had an incidental relationship with Dr. Helm’s claimed damages. It agreed with KSBIT that Dr. Helm’s remaining alleged damages did not arise from the policy’s definition of personal injury. The court therefore held that under the policy’s definition of personal injury, KSBIT was not required to continue to provide a defense to the University against Dr. Helm’s claims.

The proper standard for the analysis of insurance contracts in Kentucky is a subjective one. Terms of insurance contracts that have no technical meaning in law and are to be interpreted according to the usage of the average man and as they would be read and understood by him in the light of the prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured.

In Kentucky, as in all jurisdictions, that an insurer has a duty to defend if there is an allegation which might come within the coverage terms of the insurance policy, but this duty ends once the insurer establishes that the liability is in fact not covered by the policy. Once the Jefferson Circuit Court ruled that Dr. Helm was not able to recover damages for mental anguish, pain and suffering, front pay, or having to sell his house in a certain market, he was only able to recover damages for six months of back pay and attorney fees.

The court agreed with KSBIT that its duty to provide coverage ended once the Jefferson Circuit Court ruled that Dr. Helm’s damages were limited to back pay and attorney fees.

Attorney fees are not compensatory damages because any award does not compensate the plaintiff for any wrong done by the defendant. Therefore, the circuit court did not err as a matter of law in concluding that KSBIT was not required to continue to provide coverage based upon the policy’s definition of personal injury.

Contrary to the allegations of the university the circuit court properly concluded that an insurer has a duty to defend if there is an allegation which might come within the coverage terms of the insurance policy, but this duty ends once the insurer establishes that the liability is in fact not covered by the policy.

The circuit court noted that KSBIT had provided a defense in Dr. Helm’s action and won, meaning that there was no need to prosecute an appeal on the University’s behalf. There was no continuing duty for KSBIT to provide coverage to the University in Dr. Helm’s action.
ZALMA OPINION

This case clearly established that the broad duty to defend is not an unlimited duty. Before an insurer is obligated to defend an insured there must be an action for a tort that the insurer agreed to defend and/or indemnify the insured. KSBIT defended the University successfully and obtained a favorable judgment eliminating all charges of “Personal Injury” leaving only contract damages for back pay. The win, on behalf of the University, eliminated any further obligation KSBIT had to indemnify and therefore any obligation to defend the University. The University did not appreciate the win and tried to get defense for the remaining allegations, for injuries and claims not covered by a liability insurance policy.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

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. He is available at http://www.zalma.com and [email protected].

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Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.

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/

00:10:29
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February 21, 2025
No Coverage for Criminal Acts

Concealing a Weapon Used in a Murder is an Intentional & Criminal Act

Post 5002

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In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.

FACTUAL BACKGROUND

Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...

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February 20, 2025
Electronic Notice of Renewal Sufficient

Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000

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Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.

In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.

The court’s reasoning focused on two main points:

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00:09:18
February 19, 2025
Post Procurement Fraud Prevents Rescission

Rescission in Michigan Requires Preprocurement Fraud
Post 4999

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Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission

This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).

In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.

The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...

00:07:58
February 07, 2025
From Insurance Fraud to Human Trafficking

Insurance Fraud Leads to Violent Crime
Post 4990

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CRIMINAL CONDUCT NEVER GETS BETTER

In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.

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Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...

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February 06, 2025
No Mercy for Crooked Police Officer

Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989

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Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.

In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.

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On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...

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February 05, 2025
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

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To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988

EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.

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The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not

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