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June 28, 2024
Concealment of Prior Act of Sexual Abuse Excluded

Never Lie or Conceal Potential Claims From Insurer

Read the full article at https://lnkd.in/gJkzeXBc, shttps://lnkd.in/gJkzeXBc and at https://zalma.com/blog plus more than 4800 posts.

Post 4823

Plaintiff CMGK, LLC, doing business as Massage Envy, appealed from an order granting summary-judgment to defendant Certain Underwriters at Lloyd’s, London Subscribing to Policy Number ME10XXXX, and dismissing with prejudice plaintiff’s claims. Plaintiff sought coverage under a Sexual Acts Liability Endorsement of a claims-made-and-reported policy issued by Lloyd’s to plaintiff. The court found plaintiff was not entitled to coverage and granted the motion.

In CMGK, LLC d/b/a Massage Envy v. Certain Underwriters At Lloyd’s, London Subscribing To Policy Number ME10XXXX, No. A-1836-22, Superior Court of New Jersey, Appellate Division (June 13, 2024) the appeal was considered based on the facts established by the motions.

FACTS

CMGK operated a Massage Envy Spa franchise located in Mays Landing. Emad Gus Khalifa was the sole member of plaintiff and was familiar with its operations. In 2013, plaintiff hired April Pippin as a general manager to assist Khalifa with the day-to-day management of the facility. Pippin and Khalifa performed management functions for plaintiff.
The Application for Insurance

Khalifa executed on behalf of plaintiff an application for the policy at issue. “This Claims Made policy applies only to those claims arising from covered incidents which occur on or after the stated retroactive date. In addition, the claim must first be made and reported to the company during the policy period or applicable extended reporting period.” (Emphasis in the policy).

The Policy

Defendant issued its Specified Medical Professions Professional Liability Insurance Policy to plaintiff for the policy period March 9, 2018, to March 9, 2019, and subject to a Retroactive Date of March 9, 2014. The policy included a Sexual Acts Liability Endorsement.

The Sexual Acts Liability Endorsement. Prior to the effective date of the policy, the Insured represented that it had no knowledge of a Sexual Act or any fact, circumstance, situation or incident involving a Sexual Act which may result in a Claim under this policy.

In 2016, plaintiff hired Steffon Davis as a massage therapist. According to plaintiff’s client M.N., Davis sexually assaulted her during a massage he performed on her on September 23, 2017. Two days later, M.N. reported the alleged assault to Pippin. On September 26, 2017, M.N. went to the Township of Hamilton police station and told a police officer about the incident. According to the officer, M.N. told her “[Davis had] placed his finger between her vagina lips and cupped her breast during a massage.”

M.N. eventually sued. On September 5, 2018, plaintiff tendered the suit to defendant for coverage who refused to defend or indemnify the Plaintiff who sued Lloyd’s claiming Lloyd’s had breached the policy and seeking a judgment declaring M.N.’s claims fell within the coverage provided by Lloyd’s.

Finding the language of the prior-knowledge clause to be “clear and unambiguous,” the trial court rejected plaintiff’s attempt to interpret it in a manner where an honest belief in the futility of a claim negates actual knowledge of allegations of wrongdoing. The court found the police decision not to file criminal charges does not support a reasonable belief that M.N. would not file a civil lawsuit.

Khalifa’s assumption or hope, purportedly based on the officer’s decision not to file a criminal complaint or M.N.’s decision not to file a civil complaint sooner, that M.N. wouldn’t file a claim is not enough to defeat summary judgment. Adopting plaintiff’s interpretation of the policy language would have the effect of rendering meaningless the prior-knowledge clause. To avoid the application of the clause, an insured could simply assert it did not believe – in the face of all evidence to the contrary – a claim might be filed.

The reasonableness of excluding claims based on prior conduct that the insured could reasonably have foreseen might serve as the basis for a future claim was apparent to the appellate court as it would be to anyone involved in the business of insurance. The Appellate Division, therefore, affirmed the order granting defendant’s summary-judgment motion.

ZALMA OPINION

An application for insurance is a request to an insurer to make an offer of insurance. The insurer relies on the good faith of the proposed insured to accurately respond to all the inquires including any information available to the insured at the time the application is presented, of any acts that could result in a claim. Such an act, sexual abuse of a customer by a massage therapist, known to the insured but not yet grown into an actual suit must be disclosed to allow the insurer to make a well reasoned decision to offer to insure the proposed insured.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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00:08:50
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7 hours ago
There is no Statutory Right to Defraud an Insurer

Counterclaim Seeking Payment of its Fraudulent Bills Fails

Post number 5297

Read the full article at https://www.linkedin.com/pulse/statutory-right-defraud-insurer-barry-zalma-esq-cfe-03c3e, see the video at and at and at https://zalma.com/blog plus more than 5250 posts.

Fraudsters Attempt to Use Statute to Force Payment Fails 

In Connecticut General Life Insurance Co. et al. v. East Coast Advanced Plastic Surgery, LLC, No. 25 Civ. 1686 (PAE), United States District Court, S.D. New York (February 24, 2026) a dispute between Connecticut General Life Insurance Company and its subsidiary Cigna Health and Life Insurance Company (collectively, "Cigna" ) and East Coast Advanced Plastic Surgery, LLC ("ECAPS" ), a New Jersey-based medical practice specializing in post-mastectomy breast reconstruction.

Cigna alleged that ECAPS engaged in fraudulent billing practices, resulting in excessive payments for services rendered ...

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March 04, 2026
Limitation Defeats Suit Against Insurer

Supreme Court of Alabama Grants a Rare Request for Mandate

Read the full article at https://www.linkedin.com/pulse/limitation-defeats-suit-against-insurer-barry-zalma-esq-cfe-eychc, see the video at and at and at https://zalma.com/blog plus more than 5250 posts.

Statute of Limitations Demands Summary Judgment for Insurer

Post number 5296

In Ex parte Alfa Mutual Insurance Company and Jeffery Dimoff, In re Kinsman Investments, LLC v. Alfa Mutual Insurance Company and Jeffery Dimoff, No. SC-2025-0478, Supreme Court of Alabama (February 27, 2026) a rare Petition for Writ of Mandamus was granted and the trial court was ordered to enter summary judgment on behalf of Alfa.

Facts

Kinsman Investments, LLC (“Kinsman”) owned an apartment complex in Mobile, Alabama, which suffered significant damage from Hurricane Katrina in August 2005. At the time, the property was insured by Alfa Mutual Insurance Company (“Alfa”). Jeffery...

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March 03, 2026
Production of Claims File Required Regardless of Privilege

Claims File Created During the Pendency of a Lawsuit is Discoverable Regardless of Privilege

Read the full article at https://www.linkedin.com/pulse/production-claims-file-required-regardless-privilege-barry-ehroc, see the video at and at and https://zalma.com/blog plus more than 5250 posts.

In Melissa Eddy, and Alexis Eddy v. Farmers Property Casualty Insurance Company, f.k.a. Metropolitan Property and Casualty Insurance Company, APPEAL NO. C-230298, Court of Appeals of Ohio, First District, Hamilton County, 239 N.E.3d 1003, 239 N.E.3d 1000, 2024-Ohio-1047 (March 22, 2024) ruled on discovery issues with regards to the privileges asserted by Farmers.

Facts

In February 2020, Melissa Eddy was injured in a car accident while her husband, Alexis Eddy, was driving. The accident was caused by another driver, Pamela Shooner. Melissa sustained neck injuries that required surgery. At the time, the Eddys held an ...

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February 24, 2026
Declaring a Policy Void

Contract Breaches that Allow Multiple Different Grounds to Make a Policy Void

More from Excellence in Claims Handling Substack for Subscribers Only. You can Subscribe to my substack at https://barryzalma.substack.com/subscribe
Posted on February 24, 2026 by Barry Zalma

You’re reading from the free part of Excellence in Claims Handling until you reach the paywall. You should consider joining as a paid member to get full access to articles for members only, to our news, analysis, insurance coverage, claims, insurance fraud and insurance webinars, by clicking at the “subscribe” link below.

If an insured breaches one or more material warranties and increases the risk covered by the policy, the contract may be voided by the insurer, depending on the jurisdiction. It is, therefore, essential that every claims investigation include efforts to establish compliance with every warranty.

In Cummings v. Fire Insurance Exchange, 292 Cal. App. 3d 1407, 249 Cal. Rptr. 568 (1988), the Court of Appeal ...

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February 19, 2026

Passover for Americans
Posted on February 19, 2026 by Barry Zalma
“The Passover Seder For Americans”

For more than 3,000 years Jewish fathers have told the story of the Exodus of the enslaved Jews from Egypt. Telling the story has been required of all Jewish fathers. Americans, who have lived in North America for more than 300 years have become Americans and many have lost the ability to read, write and understand the Hebrew language in which the story of Passover was first told in the Torah. Passover is one of the many holidays Jewish People celebrate to help them remember the importance of G_d in their lives. We see the animals, the oceans, the rivers, the mountains, the rain, sun, the planets, the stars, and the people and wonder how did all these wonderful things come into being. Jews believe the force we call G_d created the entire universe and everything in it. Jews feel G_d is all seeing and knowing and although we can’t see Him, He is everywhere and in everyone.We understand...

February 19, 2026

Passover for Americans

Posted on February 19, 2026 by Barry Zalma

Read the full article at https://www.linkedin.com/pulse/passover-americans-barry-zalma-esq-cfe-5vgkc.

Available at https://www.amazon.com/Passover-Seder-American-Family-Zalma-ebook/dp/B0848NFWZP/ref=tmm_kin_swatch_0?_encoding=UTF8&qid=1584364029&sr=8-4

“The Passover Seder For Americans”

For more than 3,000 years Jewish fathers have told the story of the Exodus of the enslaved Jews from Egypt. Telling the story has been required of all Jewish fathers. Americans, who have lived in North America for more than 300 years have become Americans and many have lostthe ability to read, write and understand the Hebrew language in which the story of Passover was first told in the Torah.

Passover is one of the many holidays Jewish People celebrate to help them remember the importance of G_d in their lives. We see the animals, the oceans, the rivers, the mountains, the rain, sun, the planets, the stars, and the people and ...

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