Duty to Defend and Indemnify Inviolate
Barry Zalma
Oct 6, 2023
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Four insurers (collectively, the appellants) appealed the district court’s order finding they are required to provide insurance coverage for an incident at Hampton Inn-Albany, a hotel owned by Albany Downtown Hotel Partners, LCC (Albany), and managed by Banyan Tree Management, LCC (Banyan). The four insurance companies-Citizens Insurance Company of America and Massachusetts Bay Insurance Company (collectively, Hanover), Westfield Insurance Company (Westfield), and Starr Indemnity &Liability Company (Starr)-issued commercial general liability insurance to Banyan and Albany.
In Citizens Insurance Company Of America, Massachusetts Bay Insurance Company, Westfield Insurance Company, Intervenor v. Banyan Tree Management, LLC, Albany Downtown Hotel Partners, LLC, Jane Doe, Starr Indemnity &Liability Company, No. 22-13581, United States Court of Appeals, Eleventh Circuit (September 28, 2023) the Eleventh Circuit affirmed.
FACTS
In 2015, an employee of Hampton Inn-Albany secretly recorded a hotel guest while she was showering in the hotel bathroom. Years later, the video was circulated, and the guest sued Banyan and Albany for negligence, premises liability, and vicarious liability, alleging she suffered emotional and subsequent physical injury (Underlying Complaint). Banyan and Albany subsequently sought coverage from their insurance providers, who disputed their duty to cover this injury, primarily arguing that the Underlying Complaint did not include allegations of “personal and advertising injury” arising out of Albany’s “legitimate business,” and that their policy exclusions precluded coverage.
DISCUSSION
Georgia law makes clear that ambiguities are to be resolved in favor of the insured noting that if the policy exclusions are ambiguous, the purported reservation of rights must be construed strictly against the insurer and liberally in favor of the insured.
The appellants failed to even make a showing of ambiguity, let alone definitively establish that the Underlying Complaint falls outside their policies or that an exclusion precludes coverage. The Eleventh Circuit found unpersuasive the arguments that the hotel guest’s right to privacy was not violated, and that the recording did not arise out of Banyan and Albany’s business.
While filming a showering guest is clearly not a “legitimate” hotel practice, when a hotel employee-who would not have had access to the room but for his authority-places the camera in the bathroom and circulates the video, the injury was undoubtedly imputed to the hotel.
Accordingly, the Eleventh Circuit affirmed the district court’s decision.
ZALMA OPINION
Hotel employees should not have the access to film a guest while she showered and then distribute the video to the world as she, believing she was taking a private shower, was clearly an illegitimate hotel practice performed by an employee who was given access by the hotel to include a camera where the victim showered. No exclusion applied and coverage was clearly applicable.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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1 Motion to Remand.
2 State Farm’s Partial Motion to Dismiss.
3 Statutory bad faith (42 Pa. C.S. § 8371) against State Farm alone
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Read the full article at https://www.linkedin.com/pulse/party-seeking-discovery-entitled-anything-relevant-zalma-esq-cfe-ce7kc, see the video at https://rumble.com/v7204g8-discovery-is-entitled-to-anything-relevant-to-partys-claim-or-defense.html and at https://youtu.be/Nuet_er3qXU, and https://zalma.com/blog plus more than 5200 posts.
Upcoding and Health Care Fraud
In UnitedHealthcare Services, Inc., et al. v. Team Health Holdings, Inc., et al., No. 3:21-cv-00364-DCLC-DCP, United States District Court for the Eastern District of Tennessee, District Judge Clifton L. Corker (November 18, 2025) This is a discovery ruling, not a final merits decision.
The Disputes
This is a fraud/RICO lawsuit brought by UnitedHealthcare (and affiliates, collectively “United”) aganst TeamHealth (a large physician staffing company focused on emergency medicine). The companies have a history of mutual litigation over billing practices, including prior suits where TeamHealth accused ...
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An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
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This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
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I was initially sat at a desk reading a text-book on insurance ...
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The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
