It is Inappropriate to Argue a Win Was Wrong and a New Result is Required
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Post 4829
Defendant, Bankers Insurance Company (“Bankers Insurance”), moved to vacate the Panel Appraisal Award Amendment & Clarification (“Amended Award”) based on three alleged “significant errors” or “clear mistakes of fact” only to see an unfavorable response in St. Joseph Medical Clinic AMC v. Bankers Insurance Company, Civil Action No. 22-4521, United States District Court, E.D. Louisiana (June 17, 2024)
BACKGROUND
This case concerns an insurance coverage dispute arising from damages sustained during Hurricane Ida. At the parties’ request, an appraisal panel provided an award in September 2022 (the “Initial Award”). The Initial Award provided for $1,066,798.39 (RCV) under the policy’s Building coverage and $12,729.86 under the policy’s Business Property coverage. Bankers Insurance disagreed with the Initial Award’s inclusion of a $61,485.00 expense for “Rose Office Systems, Inc.” (“Rose Systems”) within the Building coverage. Bankers Insurance took the position in its correspondence that the Rose Systems expense should be categorized within the Extra Expense coverage, yet Bankers Insurance chose not to pursue this objection and filed an unconditional motion to confirm in May 2023.
The Honorable Donna Currault presiding, denied the motion. The Court identified the possibility of double counting as a potential significant error that required clarification by the panel. The matter was remanded for that clarification. The Court identified no other errors in the award.
The panel issued an Amended Award in January 2024. The Amended Award explained that the panel had included the Rose Systems expense within the Building coverage and provided its reasoning for doing so. The Amended Award further provided a complete calculation of damages for all the other coverages, including Extra Expense coverage ($0.00 awarded) and Business Income Loss ($270,409.96 awarded). The Amended Award confirms there was no double-counting.
Bankers Insurance waited until May 2024 to move to vacate based on the same alleged Rose Systems error of which it was aware when it filed its prior motion to confirm in October 2022.
ANALYSIS
Appraisal clauses are enforceable under Louisiana law. The burden of demonstrating that the award should not be confirmed must fall upon the party challenging it. Contractually specified appraisal awards are presumed accurate. Although appraisal awards are presumed correct, a court is not bound to confirm an award that contains clear mistakes of fact. When an award reflects accidental double-counting that duplicates certain items or categories, that is the type of clear error that cannot stand.
Bankers Insurance’s Belated Objection To The Panel’s Treatment Of The Rose Systems Expense Is Subject To Judicial Estoppel And Lacks Merit.
If Bankers Insurance were to prevail on its first argument and its second argument, the Rose Systems expense would be subject to a lower policy limit. Bankers Insurance’s first two arguments collapse under the weight of its prior litigation strategy.
Bankers Insurance moved to confirm the Initial Award, which concluded that the Rose Office Systems expense fell within the Building coverage. Bankers Insurance made a strategy decision to abandon this objection when moving to confirm the Initial Award.
The USDC concluded that Bankers Insurance’s prior litigation conduct subjected it to judicial estoppel. Courts can invoke judicial estoppel to prevent a party from asserting a position in a legal proceeding that is inconsistent with a position taken in a previous proceeding.
Bankers Insurance asked the Court to rule that the Initial Award set the total amount of damages in this matter, including relative to an award of $1,046,255.76 under building coverage. In this motion Bankers Insurance asks the Court to vacate the Initial Award because, it contends, the Initial Award’s Building coverage determination was error. The two positions were irreconcilable.
Bankers Insurance’s Argument Relative To Lost Business Income Misstates The Panel’s Position And Lacks Merit.
Bankers Insurance’s argument does not refer to any actual calculation error-merely an alleged error in terminology-and the mischaracterization of the panel’s reasoning renders this argument confusing, at best.
CONCLUSION
Now, Bankers Insurance seeks to prevail by arguing that the Initial Appraisal suffered from a separate significant error, which has carried over into the Amended Appraisal and requires its vacatur. This attempt to “prevail, twice, on opposite theories,” renders Bankers Insurance the “quintessential ‘chameleonic litigant’ against whom judicial estoppel is usually appropriate.”
ZALMA OPINION
Appraisals often raise disputes over the finding of the appraisers. Bankers, although it disagreed with some findings of the appraisers, moved the court to affirm the award. The court sent the dispute back to the appraisers who submitted an amended award only for Bankers, to try to have the court apply the argument it originally abandoned. Judicial estoppel disposed of Bankers’ argument and the amended award was affirmed. Parties to appraisal awards should stick to their position and never change their position first accepted by the court only to ask it to do something different.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
Claims Commandment X – Thou Shall Not Pretend to be a Lawyer
Some experienced and professional claims people know the law in their area of expertise better than most lawyers.
Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.
Claims Commandment XI – Thou Shall Empathize With the Claimant
Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.
Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM
See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.
Post 5217
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.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...
The Professional Claims Handler
Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
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.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
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.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
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 ...
The History Behind the Creation of a Claims Handling Expert
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 ...
