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?
August 23, 2023
Litigants Must Never Assume

Insurers, Agents and Brokers Sophisticated Relationships Expensive

Barry Zalma
Aug 23, 2023

Read the full article at https://lnkd.in/g7YnWVYf and see the full video at https://lnkd.in/gNXtVbWg and at https://lnkd.in/gTAJ6FVG and at https://zalma.com/blog plus more than 4550 posts.

Three sophisticated commercial parties in the insurance industry entered into what appears, in hindsight, to be a somewhat unsophisticated business arrangement. That arrangement led to complex litigation, which generally isn’t a good thing for a business arrangement to lead to.

In American Builders Insurance Company v. Keystone Insurers Group and Ebensburg Insurance Agency, No. 4:19-CV-01497, United States District Court, M.D. Pennsylvania (August 4, 2023) plaintiff American Builders Insurance Company (“ABIC”) sued Defendant Ebensburg Insurance Company (“Ebensburg”) for its allegedly tortious misrepresentations in an application to ABIC for workers’ compensation insurance coverage on behalf of Ebensburg’s customer, Custom Installations Contracting Services, Inc. (“Custom”). The misrepresentations at issue involve whether Custom was engaged in roofing work and the maximum height of its operations.

On Custom’s application, Ebensburg indicated that Custom didn’t engage in roofing work and only operated at fifteen feet above the ground or lower. On that basis, ABIC issued Custom a workers’ compensation insurance policy. Later, a Custom employee fell twenty-five feet from a rooftop while working on a commercial roofing job. The employee filed for workers’ compensation benefits, which ABIC unsuccessfully opposed.

In this action, ABIC brings several tort claims against Ebensburg. Ebensburg now moves for summary judgment on ABIC’s claims, arguing in part that they’re time barred.

BACKGROUND

ABIC is a Georgia-based insurance company that issues workers compensation insurance in the Commonwealth of Pennsylvania. Ebensburg is an independent insurance agency operating in Pennsylvania owned by Carl DeYulis, and managed in part by Carl’s son, Kurtis “Kurt” DeYulis. ABIC and Ebensburg have a relationship with Keystone Insurers Group (“Keystone”), a third insurance company.

Keystone essentially operated as a sort of “matchmaker,” connecting ABIC to its network of Retail Agencies. Ebensburg is one of the Retail Agencies that is part of the Keystone association. Its relationship with Keystone is governed by a Franchise Agreement.

ABIC Changes Its Underwriting Guidelines

ABIC could change its underwriting guidelines from time to time. In 2011, ABIC revised its prior underwriting guidelines to require that all roofing risks be pre-inspected prior to the release of a quote from the underwriting department. The new guidelines (the “2011 Roofing Underwriting Guidelines”), provided that all roofing risks would “require pre-inspection prior to release of a quote from [ABIC].”

Custom’s Relationship with Ebensburg

Because Custom had never sought workers’ compensation insurance before, it obtained a policy through the Commonwealth’s State Workers’ Insurance Fund (“SWIF”). The SWIF ACORD application indicated that:

1 Custom engaged in commercial and residential carpentry;

2 Custom didn’t perform any work over fifteen feet above the ground;

3 approximately 90% of Custom’s work was residential and the remaining 10% was commercial; and

4 Custom used “basic hand tools” for its remodeling projects and to install replacement windows.

Custom Applies for Insurance from ABIC

In 2015, Custom approached Ebensburg again to inquire about switching to a private workers’ compensation insurer for more favorable rates

Kurt DeYulis primarily relied on the SWIF ACORD and its “classification of [Custom’s] business” through Custom’s “class codes,” as provided by the PCRB. Kurt DeYulis indicated that Custom engaged in commercial remodeling, didn’t work at heights higher than fifteen feet, and wasn’t engaged in any other business other than commercial remodeling. Kurt DeYulis also applied to several other insurance carriers on Custom’s behalf. As he did with the ABIC application, Kurt DeYulis didn’t indicate that Custom did roofing work on the other applications.

The James Scott Injury

In September 2015, Custom was engaged in a commercial roofing job in New Galilee, Pennsylvania. James Scott had just began working for Custom. He stepped through a skylight and fell from over twenty feet to the ground, incurring serious injuries.

The Western District Litigation and Workers’ Compensation Proceeding

In September 2015, ABIC sued Custom in the Western District of Pennsylvania, seeking rescission of the insurance policy and alleging that Custom committed insurance fraud. The trial court concluded it did not have jurisdiction over ABIC’s claim for rescission because ABIC could obtain relief in the workers’ compensation litigation and dismissed the case.

Following Judge Gibson’s order dismissing ABIC’s federal claims, the workers’ compensation litigation continued. Judge Gallishen ultimately denied ABIC’s petitions. The Pennsylvania Workers’ Compensation Appeals Board later affirmed Judge Gallishen’s decision.

LAW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

ANALYSIS

ABIC argued that the limitations period on its claims should be tolled under either the fraudulent concealment or inherent fraud doctrine.

The parties follow:

1 Custom was the principal,

2 Ebensburg was Custom’s legal agent, and

3 ABIC was a third party that was harmed by actions Ebensburg took on Custom’s behalf.

When an agent like Ebensburg commits tortious acts in the scope of its agency, both the agent and principal are equally liable in tort. ABIC was aware (or should have been) of the principal-agent relationship between Custom and Ebensburg because the only way for a customer like Custom to obtain ABIC’s insurance was to go through a Retail Agency (like Ebensburg) that had powers of representation with ABIC and access to eQuotes.

On the day Scott was injured ABIC was aware that Scott “fell through a roof.” On September 14, 2015, ABIC became aware of the misrepresentations in Custom’s application.

Therefore, by September 14, 2015, ABIC was aware that: "someone submitted false information to it via eQuotes and only Ebensburg, and not Custom, had access to the eQuotes system."

The Court concluded that those facts are sufficient to give ABIC inquiry notice of its potential claims against Ebensburg because it knew that Ebensburg had sole access to the mechanism that caused its injury.

The common thread in these elements is that ABIC knew that the alleged misrepresentation negligently or fraudulently came from two potential sources, Custom or Ebensburg (or both), and it knew that Ebensburg had access to eQuotes, the mechanism that caused its injury.

Rather than pursuing both potential sources, ABIC assumed that the misrepresentation originated with Custom rather than Ebensburg. ABIC eventually learned that its assumption was incorrect, but not until after the statute of limitations expired on its claims in September 2017.

CONCLUSION

Complicated business arrangements lead to complicated litigation. The Court acknowledged that litigators in these circumstances must toe a difficult line. ABIC appears to have fallen on the wrong side of that line. By failing to act on its knowledge that Ebensburg had access to eQuotes, the mechanism by which ABIC was injured, ABIC ran afoul of the statute of limitations. That error required Ebensburg’s motion for summary judgment to be granted.

ZALMA OPINION

It is axiomatic that when a litigant assumes a fact rather than obtaining and working on actual evidence the litigant becomes its own worst enemy and forgot that making an assumption should first break the word assume into its component parts. In this case the assumption let the statute of limitations run and left the insurer holding the cost of a workers’ compensation policy it did not owe.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

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

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

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; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library\

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

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

Follow me on LinkedIn: https://lnkd.in/guWk7gfM

Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gV9QJYH; Go to Barry

Zalma on YouTube- https://lnkd.in/g2hGv88; Go to the Insurance Claims Library – https://lnkd.in/gBPMEyqr

00:12:39
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
September 26, 2025
No Way Out After Murder Conviction

Intentionally Shooting a Woman With A Rifle is Murder

Post 5196

See the full video at and at and at https://zalma.com/blog and more than 5150 posts.

You Plead Guilty You Must Accept the Sentence

In Commonwealth Of Pennsylvania v. Mark D. Redfield, No. 20 WDA 2025, No. J-S24010-25, Superior Court of Pennsylvania (September 19, 2025) the appellate court reviewed the case of Mark D. Redfield, who pleaded guilty to third-degree murder for killing April Dunkle with malice using a rifle.

Affirmation of Sentence:

The sentencing court’s judgment was affirmed, and jurisdiction was relinquished, concluding no abuse of discretion occurred.

Reasonable Inference on Trigger Pulling:

The sentencing court reasonably inferred from the guilty plea facts that the appellant pulled the trigger causing the victim’s death, an inference supported by the record and consistent with the plea.

Guilty Plea Facts:

The appellant admitted during the plea hearing...

00:07:16
placeholder
September 25, 2025
Prelitigation Communications Privileged

The Judicial Proceedings Privilege
Post 5196

Posted on September 25, 2025 by Barry Zalma

See the full video at and at

Judicial Proceeding Privilege Limits Litigation

In David Camp, and Laura Beth Waller v. Professional Employee Services, d/b/a Insurance Branch, and Brendan Cassity, CIVIL No. 24-3568 (RJL), United States District Court, District of Columbia (September 22, 2025) a defamation lawsuit filed by David Camp and Laura Beth Waller against Insurance Branch and Brendon Cassity alleging libel based on statements made in a letter accusing them of mishandling funds and demanding refunds and investigations.

The court examined whether the judicial proceedings privilege applieD to bar the defamation claims.

Case background:

Plaintiffs Camp and Waller, executives of NOSSCR and its Foundation, sued defendants Insurance Branch and Cassity over a letter alleging financial misconduct and demanding refunds and audits. The letter ...

00:07:56
placeholder
September 24, 2025
Untrue Application for Insurance Voids Policy

Misrepresentation or Concealment of a Material Fact Supports Rescission

Post 5195

Don’t Lie to Your Insurance Company

See the full video at and at https://rumble.com/v6zefq8-untrue-application-for-insurance-voids-policy.html and at https://zalma.com/blog plus more than 5150 posts.

In Imani Page v. Progressive Marathon Insurance Company, No. 370765, Court of Appeals of Michigan (September 22, 2025) because defendant successfully established fraud in the procurement, and requested rescission, the Court of Appeals concluded that the Defendant was entitled to rescind the policy and declare it void ab initio.

FACTS

Plaintiff's Application:

Plaintiff applied for an insurance policy with the defendant, indicating that the primary use of her SUV would be for "Pleasure/Personal" purposes.

Misrepresentation:

Plaintiff misrepresented that she would not use the SUV for food delivery, but records show she was compensated for delivering food.

Accident:

Plaintiff's SUV was involved in an accident on August ...

00:07:48
September 09, 2025
The Dishonest Chiropractor/Physician

How a Need for Profit Led Health Care Providers to Crime
Post 5185
Posted on September 8, 2025 by Barry Zalma

See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers.

The Dishonest Chiropractor/Physician

How a Need for Profit Led Health Care Providers to Crime

See the full video at and at

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help 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.

How Elderly Doctors Fund their ...

placeholder
September 08, 2025
The Dishonest Chiropractor/Physician

How a Need for Profit Led Health Care Providers to Crime
Post 5185
Posted on September 8, 2025 by Barry Zalma

See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers.

The Dishonest Chiropractor/Physician

How a Need for Profit Led Health Care Providers to Crime

See the full video at and at

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help 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.

How Elderly Doctors Fund their ...

placeholder
September 03, 2025

Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit

© 2025 Barry Zalma, Esq., CFE

When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.

On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...

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