Failure to Report, Acknowledge and Make Claim to Your Client’s Insurer is Legal Malpractice
Barry Zalma
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David Quaknine and several of his companies sued their former attorney and his law firm for alleged malpractice connected to a 2014 suit. The district court granted the defendants’ motion to dismiss. It ruled that the two-year limitations period, which at the latest began to run in September 2019, expired before the plaintiffs sued in December 2021. In Concepts Design Furniture, Inc., et al. v. Fisherbroyles, LLP and Alastair J. Warr, No. 22-2303, United States Court of Appeals, Seventh Circuit (March 31, 2023) the Seventh Circuit resolved the dispute.
FACTS
The parties called Comptoir, which did business from Quebec, Canada, were sued for intellectual-property infringement in 2014. Over a year later, Comptoir hired Alastair Warr and his law firm to negotiate a settlement or, failing that, represent Comptoir in court. Comptoir told Warr that it had a policy with Intact Insurance Company that potentially could cover defense costs and indemnify it for claims. Warr did not advise Comptoir to submit a claim to Intact nor did it do so on its own.
The lawsuit did not go well and the disclosures in the suit stated that Comptoir had “no insurance agreement.” A jury eventually found against Comptoir with a judgment over three million dollars in damages. In February 2018, Comptoir-through other counsel-told Intact about the attorney’s fees. The notice, four years after the suit, was the first time Intact learned of the intellectual-property suit.
Comptoir reorganized after the adverse judgment. The bankruptcy court declared Comptoir bankrupt and discharged the judgment debt from the 2014 litigation.
Intact denied coverage on September 10, 2019. When it demanded coverage, Comptoir sent to Intact (apparently for the first time) a copy of the complaint in the 2014 suit. In denying Comptoir’s demand in September 2019, Intact gave three reasons:
1. the suit against Comptoir was not covered under the policy.
2. because Comptoir “failed to promptly notify Intact of the [2014] Complaint and to immediately upon receipt thereof, deliver to Intact a copy of the Complaint,” it violated the policy and forfeited its right to and was “time barred” from reimbursement.
3. Comptoir listed its defense fees “as amounts due to creditors,” which implied that only the bankruptcy trustee could collect them.
Intact sued seeking a declaration in Cook County Circuit Court that it was not obligated to pay defense fees or indemnify Comptoir. Comptoir made its defense-fees claim outside the three-year statute of limitations applicable under Quebec law. Thus, Comptoir’s complaint and subsequent demand for reimbursement of fees was time barred.
On December 17, 2021, refusing to admit is errors and failure to promptly act, Comptoir sued Warr and FisherBroyles for legal malpractice. The district court granted Warr and FisherBroyles’s motion to dismiss the suit as untimely under Illinois law.
Both parties accept that Illinois’s two-year statute of limitations for malpractice suits applies to this case. They also do not dispute that the Illinois statute of limitations incorporates the so-called “discovery” rule, which delays the commencement of the relevant statute of limitations until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused.
Comptoir’s claim is not based on the mishandling of litigation. Rather, its claim arises out of the defendants’ alleged failure to advise Comptoir to file a timely claim with its insurer. These damages existed before-and regardless of- the outcome of the declaratory-judgment suit. It is undisputed that one explicit reason for Intact’s denial was that Comptoir failed to promptly notify Intact of the Complaint and to immediately upon receipt thereof, deliver to Intact a copy of the complaint, and that the policy stated that failure to notify meant a forfeiture of rights to compensation.
Once a malpractice plaintiff is aware of injury the plaintiff is not required to wait for a court’s judgment certifying that the plaintiff’s attorneys erred. Thus, the limitations clock for Comptoir started when it reasonably should have known of the alleged malpractice and that occurred, at the latest, when Intact sent its letter in September 2019 denying coverage to Comptoir.
The statute of limitations is an affirmative defense, and Comptoir was not required to anticipate the defense in its complaint. Comptoir accepts that Intact denied coverage in September 2019, starting the two-year clock that expired before it sued in December 2021.
ZALMA OPINION
Lawyers, like people not trained in the law, like their clients, all have an uncanny ability to avoid reading an insurance policy. The defense lawyer, with knowledge of the existence of a policy that could provide a defense to Comptoir, ignored the fact, answered discovery reporting no insurance, and defended the suit on its merits, only to impose a multi-million dollar verdict on Comptoir. After the judgment and a bankruptcy action Comptoir made claim for its attorneys fees only to lose because the claim was time barred. Waiting even longer it sued its lawyers for failing to advise it to report its claim to its insurer, only to lose again because it was time barred.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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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.
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Barry Zalma, Esq., CFE is available at http://www.zalma.com and [email protected]
Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
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Hiscox Insurance Company (“Hiscox”) moved the USDC to Dismiss a suit for failure to state a claim because the insured reported its claim more than 60 days after expiration of the policy.
In Mluxe Williamsburg, LLC v. Hiscox Insurance Company, Inc., et al., No. 4:25-cv-00002, United States District Court, E.D. Missouri, Eastern Division (May 22, 2025) the trial court’s judgment was affirmed.
FACTUAL BACKGROUND
Plaintiff, the operator of a massage spa franchise, entered into a commercial insurance agreement with Hiscox that provided liability insurance coverage from July 25, 2019, to July 25, 2020. On or about June 03, 2019, a customer alleged that one of Plaintiff’s employees engaged in tortious ...
ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Posted on June 2, 2025 by Barry Zalma
Post 5087
See the full video at and at
Read the full article and the full issue of ZIFL June 1, 2025 at https://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-06-01-2025.pdf
Zalma’s Insurance Fraud Letter – June 1, 2025
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ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Read the full article and the full issue of ZIFL June 1, 2025 at https://lnkd.in/gTWZUnnF
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 ...
No Coverage if Home Vacant for More Than 60 Days
Failure to Respond To Counterclaim is an Admission of All Allegations
Post 5085
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In Nationwide Mutual Insurance Company v. Rebecca Massey, Civil Action No. 2:25-cv-00124, United States District Court, S.D. West Virginia, Charleston Division (May 22, 2025) Defendant Nationwide Mutual Insurance Company's (“Nationwide”) motion for Default Judgment against Plaintiff Rebecca Massey (“Plaintiff”) for failure to respond to a counterclaim and because the claim was excluded by the policy.
BACKGROUND
On February 26, 2022, Plaintiff's home was destroyed by a fire. At the time of this accident, Plaintiff had a home insurance policy with Nationwide. Plaintiff reported the fire loss to Nationwide, which refused to pay for the damages under the policy because the home had been vacant for more than 60 days.
Plaintiff filed suit ...
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 ...
Professional Health Care Services Exclusion Effective
Post 5073
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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 ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...