Zalma on Insurance
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October 18, 2022
Killing Two Dogs is an Intentional Act

No Duty to Defend or Indemnify Intentional Acts or Person not Insured

Barry Zalma

Read the full article at https://lnkd.in/gQ_h65mv and see the full video at https://lnkd.in/gqd7Vzcf and at https://lnkd.in/gybbH-tj and at https://zalma.com/blog plus more than 4350 posts.

Norma Hudson and the Hudson Revocable Trust (the Trust) appealed from a summary judgment entered in favor of Farm Bureau Mutual Insurance Company of Arkansas, Inc. (Farm Bureau). In the summary-judgment order, the trial court found as a matter of law that Farm Bureau had no duty of defense or indemnification to the appellants arising from a lawsuit filed against the Trust by Dewayne Evans, Mark White, and Billy Taylor. In Norma Hudson And Hudson Revocable Trust v. Farm Bureau Mutual Insurance Company Of Arkansas, Inc., No. CV-21-396, Court of Appeals of Arkansas, Division II (October 5, 2022) the Court of Appeal resolved the coverage dispute.
FACTS

Benjamin Hudson (Norma’s adult grandson) shot and killed two coon dogs and allegedly traumatized a third on property owned by the Trust. The dog owners sued Benjamin Hudson (Benjamin) and the Trust, raising claims for destruction of property, negligence, and tort of outrage and seeking compensatory and punitive damages. The allegations in the complaint against the Trust were that Benjamin was employed to oversee the Trust property, that he was acting in a scope of that authority, and that his outrageous conduct was ratified by the Trust.

Norma has two insurance policies with Farm Bureau. One policy is a homeowner’s policy that insures the property where the shootings occurred, and the other is a property owner’s policy. After the dog owners’ sued Norma and the Trust made a claim with Farm Bureau for coverage under the insurance policies. Farm Bureau subsequently sued seeking a declaratory judgment that it owed no duty to defend or indemnify Benjamin, Norma, or the Trust based on exclusionary language in the policies relating to bodily injury or property damage arising out of intentional acts.

The policies provided that Farm Bureau provided that there is no coverage for “bodily injury or property damage caused intentionally by you or any covered person or at the direction of you or any covered person” and that “[t]he expected or unexpected results of such acts are not covered.” (Emphasis added.)

Farm Bureau asserted that the dog owners’ complaint alleged that Benjamin was acting as an agent of the Trust when he shot the dogs. Farm Bureau argued that because the insurance policies expressly excluded liability coverage for damage arising out of an intentional act, it had no duty to defend or indemnify Norma or the Trust and that it should be granted summary judgment.

The trial court agreed and entered an order granting Farm Bureau’s summary-judgment motion. Specifically, the trial court found:

Liability insurance coverage is expressly and unambiguously excluded under both the Homeowner Policy and the Property Owners Policy for bodily injury or property damage arising out of the intentional conduct of an insured.

That it is alleged in the underlying lawsuit Benjamin C. Hudson was acting on behalf of Hudson Revocable Trust at the time of the subject incident, and it is undisputed in this matter that Benjamin C. Hudson acted intentionally in shooting the dogs in the course of the subject incident.

That, as a matter of Arkansas law, liability insurance coverage is excluded under the Homeowner Policy and Property Owners Policy from covering Dewayne Evans, Mark White, and Billy Taylor’s alleged damages in the Underlying Lawsuit and relating to the dog-shooting event.
ANALYSIS

Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, the appellate court must determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. The Court of Appeal views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. The review focuses not only on the pleadings but also on the affidavits and other documents filed by the parties.

Arkansas law regarding the construction of insurance contracts is well settled and requires the language in an insurance policy is to be construed in its plain, ordinary, and popular sense. If the language of the policy is unambiguous, the Court of Appeal will give effect to the plain language of the policy without resorting to the rules of construction.

Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates coverage. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. If a provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to the rules of construction.

The appellants state that the undisputed facts show that the insured, Norma, did not shoot the dogs, nor did she direct or encourage Benjamin to shoot the dogs. The appellants state it is implicit in the trial court’s ruling that Benjamin was acting on behalf of the Trust when the unrebutted evidence – the affidavits submitted by Norma and Benjamin-proved otherwise.

The Court of Appeal disagreed and held that Farm Bureau was properly granted summary judgment. In the dog owners’ complaint against Benjamin and the Trust, they alleged that Benjamin intentionally shot the dogs while acting in a scope of authority to oversee Trust property and that his outrageous conduct was ratified by the Trust. In reviewing the actual allegations in the complaint, the insurance policies unambiguously exclude coverage for “bodily injury or property damage caused intentionally by you or any covered person or at the direction of you or any covered person.” (Emphasis added.)

The duty to defend arises when there is a possibility that the damage falls within the policy coverage. Where there is no possibility that the damage alleged in the complaint may fall within the policy coverage, there would be no duty to defend.

The Court of Appeal concluded that there is no possibility that the damage alleged in the complaint falls within the policy coverage because if Benjamin acted at the direction of the Trust, as alleged in the dog owners’ complaint, the policy exclusion for committing an intentional act would apply and defeat coverage. Conversely, if Benjamin acted unilaterally and not on behalf of the Trust, the Farm Bureau policy would not provide coverage because Benjamin was not a named insured as defined in the policies.

Therefore, the trial court’s order of summary judgment was affirmed.

ZALMA OPINION

The Trust denied causation claiming the shooter did not act for it. If he did act for the trust there was no coverage because of the intentional act. If he did not act for the trust, he was not an insured, and there is no coverage. Intentionally killing two coon dogs could never be a covered event under any 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] and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

Now available Barry Zalma’s newest book, The Compact Book on Ethics is available as a Kindle book, a paperback or as a hard cover.

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

Insurance, insurance claims, insurance law, and insurance fraud .
By Barry Zalma

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

00:10:35
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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.
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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 ...

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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.

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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;
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Both Bernier and State Farm dispositive motions before ...

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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

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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:

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