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?
May 09, 2023
Who Let the Dogs Out?

Failure to Investigate Potential for Coverage

Barry Zalma

May 9, 2023

Read the full article at https://lnkd.in/gZ3wRr2a and see the full video at https://lnkd.in/g3cFXxuf and at https://lnkd.in/gyizdHfZ and at https://zalma.com/blog plus more than 4500 posts.

When an insurer contended that an animal liability exclusion in the insured’s homeowner’s insurance policy (the policy) precluded any duty to defend because the third party plaintiffs sued the insured for injuries they and their dogs sustained when their dogs were bitten by two pit bulls on a public street, the trial court granted summary judgment to the insurer and the insured appealed.

In Poonam Dua v. Stillwater Insurance Company, B314780, California Court of Appeals, Second District, Second Division (May 5, 2023) the California Court of Appeals explained why the duty to defend is greater than the duty to indemnify and why the insurer should conduct a thorough investigation before denying a claim for defense.

FACTS

The insurer reviewed the underlying complaint and determined that the exclusion applied because the underlying complaint alleged that the pit bulls lived at the insured’s home, which was covered by an animal liability exclusion and therefore it had no obligation to indemnify an excluded claim. The insured denied any ownership or control of the pit bulls, which were owned by her boyfriend, who did not live at her home.

The insurer, ignoring basic insurance policy interpretation rules, equated its obligation to indemnify with its duty to defend. The insurer denied the insured a defense because, if the exclusion applies, the insurer has no obligation to defend.

Even if the insured was correct and the pit bulls were not under her ownership, did not live in her home, and were not under her control when the attack occurred the Court of Appeals noted that the third party still might have raised a claim potentially covered by the policy. An insurer can be excused from the duty to defend only if the third party complaint can by no conceivable theory raise an issue within the policy’s coverage.

The insured was alleged to know the dogs were dangerous and the insurer knew that the dogs were being walked by the insured’s boyfriend near her home. Even if, as currently pleaded, the third party lawsuit was frivolous and baseless, does not mean there was no possibility of coverage and thus no duty to defend. Ignoring the California Fair Claims Settlement Practices Regulations, the insurer did nothing to investigate and concluded there was no possible coverage based only on the animal liability exclusion.

Poonam Dua (Dua) argued that the trial court erred in granting summary judgment in favor of Stillwater on her claims based on Stillwater’s refusal to defend Dua in the third party lawsuit.

FACTUAL BACKGROUND

Dua was the named insured on a homeowner’s insurance policy issued by Stillwater that provided her with personal liability coverage. The policy made three references to an “animal liability exclusion.”
Third Party Lawsuit Against Dua

Simeon and Roslyn Peroff sued Dua and Eric Taylor (Taylor) for personal injuries and property damage caused by Taylor’s dogs. In their complaint, the Peroffs alleged that while they were walking their two dogs on a street in Calabasas, California, Taylor was also walking his dogs, and Taylor’s dogs attacked the Peroffs’ dogs. Taylor was alleged as the owner and the only person walking the dogs when the attack occurred.

As to Dua, the Peroffs’ complaint alleged that Taylor and his dogs lived at Dua’s home, that Dua knew the “TAYLOR PIT BULLS” were dangerous and their attack was reasonably foreseeable to her but she did not prevent it, and that Dua was therefore liable because she was “the owner of the property and/or related [sic] that housed or w[as] otherwise aware of the TAYLOR PIT BULLS,” and had a “duty of care” to take measures to prevent the attack and did not do so.

The trial court granted Stillwater’s motion for summary judgment.

DISCUSSION

Since the duty to defend is contractual (Buss v. Superior Court (1997) 16 Cal.4th 35, 47.) A liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity. The duty to defend applies to claims that are groundless, false, or fraudulent. However, where there is no possibility of coverage, there is no duty to defend.

Where the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint suggest potential liability. This is because the duty to defend, although broad, is not unlimited.

When Dua sought Stillwater’s defense against the Peroffs’ lawsuit, she informed Stillwater that she did not own the dogs and that the dogs were in the care, custody, and control of her boyfriend when the dog attack occurred because Taylor was walking the dogs. There was no evidence that Stillwater took any measures to investigate or otherwise negate the facts suggesting that an animal liability exclusion may not apply and there was potential coverage, and therefore it had a duty to defend Dua.

Stillwater conflated the possibility of Dua’s liability with Stillwater’s duty to defend. The Court of Appeals concluded that Stillwater had not established that there was no conceivable theory to bring the third party complaint within the possibility of coverage, and the facts Dua provided to Stillwater suggested that there may be coverage. In sum, Stillwater failed to meet its burden of establishing it was entitled to summary judgment on Dua’s breach of contract claim, and the trial court erred in granting it summary judgment.

A mere breach of contract, as alleged, however, is insufficient to determine bad faith. Dua has introduced facts giving rise to a material dispute of fact as to whether Stillwater unreasonably or improperly failed to defend when it was presented with facts suggesting that the animal liability exclusions did not apply.

The Court of Appeal concluded that summary judgment in favor of Stillwater was improper and on remand, the trial court was required to enter an order denying Stillwater’s motion for summary judgment on Dua’s second cause of action for bad faith and breach of the covenant of good faith and fair dealing.

ZALMA OPINION

California’s Fair Claim Settlement Practices regulations require the insurer to conduct a thorough investigation of a claim against an insured before making a decision to defend or indemnify an insured. Stillwater decided to rely on an exclusion that, had it done a thorough investigation and believed the reports of its insured, would have defended its insured. The decision of the trial court was a Pyrrhic victory since, on appeal, the appellate court followed the law and compelled the insurer to defend, and possibly indemnify its insured to a spurious claim against a person who neither owned nor controlled the Pit Bulls that caused the injury.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.

Consider subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808

Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01

Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected]

Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257

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://podcasters.spotify.com/pod/show/barry-zalma/support; 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; https://creators.newsbreak.com/home/content/post; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library.

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://lnkd.in/gfFKUaTf.

Consider subscribing to my publications at substack at https://lnkd.in/gcZKhG6g

Go to Newsbreak.com https://lnkd.in/g8azKc34

Go to the Insurance Claims Library – https://lnkd.in/gWVSBde.

00:10:28
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
September 18, 2026
Expert May Only Testify to What Experience Supports

Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.

Posted on September 18, 2026 by Barry Zalma

See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html

In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.

The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.

Law

The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...

00:03:10
September 17, 2026
Convicted on 29 Tax-Refund-Fraud Counts

150 Months in Prison for Tax Fraud
Post 4846

Posted on September 17, 2026 by Barry Zalma

See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.

FACTS

In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS

Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.

The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...

00:05:23
September 14, 2026
Court Enforces Fifth Amendment & Refuses to Compel Answers

Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution

Post 5489

Posted on September 14, 2026 by Barry Zalma

Fraudster Refuses to Answer Questions About His Alleged Fraud

See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr

In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.

Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.

After Great American ...

00:05:14
3 hours ago
John Madden and The US Patent and Trademark Office

Blockchain Fraud Detection Loses Protection

Posted on October 22, 2026 by Barry Zalma

John Earl Madden (April 10, 1936 – December 28, 2021) was an American Professional Football Coach and Sports Commentator in the National Football League Seeking Patent & Trademark Protection

BLOCKCHAIN FRAUD

Mr. Madden was more than football. He was working to establish a program called “Fraud Protection Systems, Methods, and Computer Programs for Blockchain Financial Transactions.”

In Ex parte John Madden, Appeal 2026-001497, Application 18/495,506, Technology Center 3600, United States Patent and Trademark Office, Patent Trial and Appeal Board (October 14, 2026)

The Examiner rejected claims several numbered claims under 35 U.S.C. § 101 as directed to an abstract idea without significantly more.

THE LAW

Section 101 makes patentable any new and useful process, machine, manufacture, or composition of matter.Laws of nature, natural phenomena, and abstract ideas are implicitly excluded.

THE PATENT TRIAL AND ...

post photo preview
October 21, 2026
Supervisory Officials are not Individually Liable

Sovereign Immunity Defeats Suit Against Police Officers

Post 4866

Posted on October 21, 2026 by Barry Zalma

In Chad Lightfoot, et al. v. Progressive Direct Insurance Company, et al., Civil Action No. 26-434, United States District Court, E.D. Louisiana (October 9, 2026) Chad Lightfoot was involved in an Orleans Parish automobile accident in 2011 and filed claims with several insurers, including Progressive.

After a related civil dispute, Progressive counsel allegedly submitted a false affidavit stating that Lightfoot had fraudulently received a $50,000 payment. A New Orleans police detective relied on the affidavit to obtain an arrest warrant, and Louisiana State Police Lieutenant Alan Arcana allegedly reported that Lightfoot had received the payment. Lightfoot was arrested in 2015 and charged with theft, insurance fraud, and perjury.

Plaintiffs alleged that no record of the payment existed and that the criminal charges were dismissed on October 15, 2024.

Lightfoot and Geralyn Hawkins filed suit in October 2025 and ...

post photo preview
October 20, 2026
Suit Must be Ripe When Filed

A Suit Filed Before the Claim Exists is Fatal

Post 4870

Posted on October 20, 2026 by Barry Zalma

In Louis Briggs v. Shaun Wimberly; Somerset Services, Inc.; And Wimberly & Associates, PLLC, and Louis Briggs v. Shaun Wimberly And Wimberly & Associates, PLLC Nos. 2024-CA-1471-MR, 2025-CA-1366-MR, Court of Appeals of Kentucky (October 9, 2026) Louis Briggs was arrested in 2014 after an incident with police and charged with several offenses, including third-degree assault.

Probable cause was found and an indictment was returned, but the charges were eventually dismissed. His attorney, Shaun Wimberly, then filed a federal civil rights suit for Briggs in a United States district court, which also asserted state-law claims. The district court dismissed most of the claims and declined to exercise jurisdiction over the remaining state-law claims. Briggs blamed Wimberly for the result, fired him, and appealed to the Sixth Circuit.

While the federal appeal was pending, Briggs filed a legal malpractice action against Wimberly in the Jefferson Circuit Court. The Sixth ...

post photo preview
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